Notice periods - Confusion between 30 days and a calendar month requirement for notice period
Recently on Facebook on a group specifically created for recruiters to share tips and advise the question regarding notice periods come up and it seems that there is still massive confusion around requirements for notice periods. The issue that arises is when a person is given a contract of employment with unclear terms for notice period which leads to confusion when the employee is looking to resign as to how long they would need to serve.
to the Basic Conditions of Employment Act the legal requirement for notice
period to be given is:
one week if employed for six months or less
two weeks if employed for more than six months but less than one year and
four weeks if employed for one year or more.
A 30-day notice period means that notice can be given on any day of the month and the period will then terminate in 30 days’ time.
The definition of a calendar month is that of a common calendar and does not necessarily have to run from the 1st to the 31st. According to The South African Labour Guide a calendar month can be interpreted in two ways either as it appears on a common calendar (1st Jan – 31st Jan) or a month in terms of one day in particular until the corresponding day of the next month.
Some labour lawyers are of the opinion that if your employment contract states one calendar month it means a month as calculated per the calendar. Should the contract not clearly state this or should it say 30 days then the notice period would be calculated from the day on which you resign. Should your contract not give any stipulation at all it would automatically fall into requirements as per the Basic Conditions of Employment.
In 2009 in the case between SAMRO v Mphatsoe the court said that if confusion is present regarding notice it is necessary to ascertain the intentions of the parties by way of interpretation and that the language and nature of the contract is relevant. The court found that throughout the contract that “month” was used but was qualified as a calendar month specifically when referring to the notice of termination. The court said that a calendar month would then mean that of which the employer intended. It was held that the employee was obliged to give notice of termination with effect from the first day of the month to the last and in failing to do so he would be in breach of his contract.
When drafting employment contracts it is important that employers make their intentions as clear as possible. When confusion is present the courts ascertain what the intentions of the parties are by taking into consideration the nature of the contract and what the intended meaning is.
the above it would be important to understand the terms of your employment
contract clearly. If no clear term is stated, ask the employer for
clarity. Ask the employer to state specifically what their interpretation and
intention of a calendar month is and make sure that you are aware of their
interpretation. Make sure that you have clarity upfront to avoid arguments and
unnecessary legal battles at a later stage. You could be forced by a court to
work out a notice period which in itself can be unpleasant enough.
Posted by Kontak Recruitment www.kontak.co.za. Posted In : Notice period