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Notice periods - Confusion between 30 days and a calendar month requirement for notice period

March 29, 2019

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.

According 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.  In ascertaining a certain number of calendar months the civil method of computation is used: the first day of the period is included and the last day excluded.

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.

Considering 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.

Kontak Recruitment


 

Guide to writing a CV for the South African job market

March 18, 2019

Guide to writing a CV for the South African job market

One of the factors to consider when job hunting is your CV. CV formats vary widely from country to country, if you want your job application to be taken seriously, your CV needs to follow the right layout.

Step 1 – Include a photograph

As a recruitment agency we are often asked if job seekers should include a photograph on their CV. We would highly recommend that you do include a photo on your CV, many employers are of the opinion th...


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What does a Recruitment Agency do?

March 12, 2019

What does a Recruitment Agency do?

 

A recruitment agency is a sourcing company that partners with employers to aid in the assistance of recruiting of talent to fill particular roles available within the organisation. The most common misconception about recruitment agencies by job seekers is that a recruitment agency finds work for job seekers and this is not the case.

 

A recruitment agency is hired by an organisation to specifically provide recruitment services to employers assisting th...


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Top Tips to spot a Job Scam

February 27, 2019

Top tips to spot a job scam.

A job scam is when a person poses as an employer by placing an attractive job advertisement requiring a job seeker to pay a certain sum of money or to fax documentation to the said person or fax number provided. Once your payment or fax has been received, the scammer disappears, you are out of your money and still without a job.

Ways to spot a job scam:

Job advertisements or interviews requiring payment -  steer clear of adverts or interviews requiring payment....


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Job Search Fatigue.. Tired of job hunting

February 10, 2019

Job search fatigue is real

Whether you are working or unemployed, job searching can be very exhausting. After submitting literally hundreds of job applications with absolutely zero response, no feedback or the occasional rejection email, job fatigue is real and is a mix of physical and emotional exhaustion. Leaving job seekers with frustrations, lack of results and on the verge of giving up and waiting for a miracle to happen.

How do you know if you are experiencing job search fatigue?

You f...

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What to consider when job hunting

February 8, 2019

What to consider when job hunting

With the unemployment rate at 27.5% in South Africa according to a Stats SA announcement on the 30th October 2018 which is an increase from the 27.2% rate announced at the end of the second quarter of 2018, the importance of a well-structured and accurate CV must not be underestimated. Your CV is a marketing document and presentation is key.

Your CV is your first and most important step towards your sought after position. The job market will judge you by yo...


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Restraint of Trade

February 8, 2019

Restraint of trade – Friend or foe

In many cases job seekers have landed their dream job only to be presented with a restraint of trade agreement as part of their condition of employment. The agreements are often signed under the false impression that they are not enforceable.

A restraint is specifically designed to protect the interests of the employer, they put this agreement in place to protect their customer relationships and intellectual property. The clause prohibits an employee fro...


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What you need to know about Employment Contracts

February 8, 2019

Types of employment contracts – what you need to know

According to Vermeulen Attorneys the primary employment related issue that they are most often approached with by employees is that of fixed terms contracts.  Attorney, Chante Mouton says that employees often don’t read or understand the terms of their employment contracts before accepting resulting in them wanting to lay a grievance against an employer.

An employment contract should be read in its entirety before being accepted. It...


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