CLEARING UP CONFUSION OVER NOTICE PERIODS

RECENTLY, on a Facebook group specifically created for recruiters to share tips and provide advice, the question of notice periods came up and it seems 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 regarding their notice period, which leads to confusion when the employee is planning to resign.

According to the Basic Conditions of Employment Act, the legal requirement for a notice period 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 SA Labour Guide, a calendar month can be interpreted in two ways – either as it appears on a common calendar (January 1-31), 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 was present regarding notice, it was necessary to ascertain the intentions of the parties by way of interpretation and that the language and nature of the contract was relevant.

The court found that throughout the contract “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 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 the intentions of the parties by taking into consideration the nature of the contract and its intended meaning.

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 you have clarity. You could be forced by a court to work out a notice period, which in itself can be unpleasant.