Can an employee give a longer period of notice than contractually required?
In order to answer the question, lets first look at the notice periods as described in the Basic Conditions of Employment Act (the Act).
Minimum notice periods
Section 37 of the Act describes notice periods of not less than:
- one week, if the employee has been employed for six months or less;
- two weeks, if the employee has been employed for more than six months but not more than one year;
- four weeks, if the employee–
- has been employed for one year or more; or
- is a farm worker or domestic worker who has been employed for more than six months.
From the above it is clear that the Act does not make provision for a resignation with a notice period shorter than one week. In other words an employment contract may not allow for notice periods shorter than the periods indicated above, the employer and employee may however agree on notice periods longer than the minimum prescribed periods. As per section 37(3) it is required that such notice periods must be applicable to both parties.
Employees must understand that if they agree to a notice period longer than the minimum prescribed by the Act, they cannot later claim that the Act only requires four weeks’ notice. It is important to remember that according to section 37 (4) (a) notice of termination of the employment relationship (includes a resignation) must be done in writing and once accepted by the employer there would be nothing compelling the employer to accept a request to withdraw the resignation if the employee later changes his / her mind.
Some contracts of employment make provision for a notice period of one calendar month, after one year’s service.
What is a calendar month?
This is an area of confusion between the employer and employee. The contract of employment clearly states that an employee must give a calendar months’ notice, the employee therefore tenders his resignation on the 15th of the month arguing that a calendar month could be from the 15th of one month to the 15th of the following month and doesn’t necessarily have to be from the 1st to the 31st of a month. In his book, Interpretation of Statutes (Juta & Co. Ltd, first edition), Professor G.E. Devenish describes a calendar month as:
“A calendar month is a month according to the almanac or common calendar. A calendar month is therefore not a fixed number of days but varies according to the actual month concerned. A calendar month need not necessarily run from the beginning of a 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. However the application of this definition is ambiguous. The term “calendar month” may be interpreted in two ways: either as a month as it appears on the calendar, (1 January until 31 January) or a month reckoned in terms of one day in a particular month until the corresponding day of the next month; thus for example, from the fourth day of March until the fourth day of April. Both possibilities arise in practice.”
From the above it is clear that both the employer and employee could be correct in their interpretation of a calendar month and it is therefore recommended that employers indicate in contracts of employment that notice must be given between the 1st and the 3rd of a month in order to ensure that employees serve a complete month as notice.
Too much notice
It often happens that troublesome employees give far too much notice in anticipation of being remunerated for their notice periods instead of requiring them to serve the excessively long period of notice. It could also be that the employee works with sensitive information and poses a real risk to the employer if allowed to continue employment during the period of notice, especially if the employee is going to work for the competition.
This is exactly what happened in Uthingo Management (Pty) Ltd v Shear NO & others (2009) 18 LC 7.1.1, reported in Butterworth’s [2009] 6 BLLR 590 (LC).
Two employees tendered their resignations respectively on the 19th and 26th of February 2007 indicating that their last working day would be the 31st of March 2007. The employees knew that they would receive bonuses if they were still in the service of the employer at the end of March 2007. Obviously the employer was not impressed by this, especially since the two employees accepted employment at its competition. The employer noted that contractually the employees agreed to give four weeks’ notice and subsequently accepted their resignations indicating that the employees last working days would be on the 19th and 26th of March 2007 respectively.
The two employees challenged this and argued that a dismissal took place as the employer changed the terms of employment prior to the last working day they indicated on their resignation letters. The CCMA Commissioner, incorrectly, agreed with the employees’ argument that the purpose of giving more notice than required was for the employer to make the necessary arrangements to replace the employees. The Commissioner subsequently ruled that the actions of the employer constituted an unfair dismissal.
The Labour Court however disagreed with this finding and Judge Molahlehi in his judgement referred to the remarks of Judge Spoelstra in Humphries & Jewell (Pty) Ltd v Federal Council of Retail & Allied Workers Union & others (1991) 12 ILJ 1032 (LAC) at 1037G; “ the fact that the respondent erred by referring to a notice period when the repudiation was acted upon, is in my view not relevant to the issue before us, it should not be left to an employee to dictate the terms on which his employer should accept his repudiation.”
Judge Molahlehi accordingly substituted the award of the Commissioner with the following:
- The applicants, Mr Du Plessis and Mr Mills, were not dismissed.
- Mr. Du Plessis and Mr. Mills voluntarily resigned from the employ of the respondent.
- The CCMA, does not have jurisdiction to entertain the dispute.
From this case it is clear that employers do not have to accept extended notice periods that they did not agree upon. Employers would be within their rights to revert back to the agreement reached upon commencement of employment and to insist on the agreed (shorter) period of notice.
Resource:
Interpretation of Statutes, Devenish DE
Uthingo Management (Pty) Ltd v Shear NO and Others (JR 2007/07) [2009] ZALC 9
