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NOTICE PERIODS - WHAT IS THE DIFFFERENCE BETWEEN 30 DAYS AND A CALENDAR MONTH REQUIREMENT FOR NOTICE PERIODS WHEN RESIGNING.
GIVING NOTICE... 30 DAYS OR 1 CALENDAR MONTH
NOTICE PERIODS - 30 DAYS OR A CALENDAR MONTH
Notice Period: What is a notice period and what does it mean? A notice period is the amount of notice an employee has to give their employer before resigning. It is also the amount of notice an employer needs to give an employee before the termination of their contract.
Difference between 30 days and a calendar month
NOTICE PERIODS - CONFUSION BETWEEN 30 DAYS AND A CALENDAR MONTH REQUIREMENT FOR NOTICE PERIODS WHEN RESIGNING.
Recently on Facebook, in a group specifically created for recruiters to share tips and advice, the question regarding notice periods came 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 and how long they would need to serve. Notice periods often cause confusion, especially when the terms ''30 days'' and ''calendar month'' are used interchangeably in employment contracts. Understanding the difference is crucial to ensure both employees and employers adhere to legal and contractual obligations.
WHAT IS A NOTICE PERIOD?
A notice period is the amount of notice an employee has to give their employer before resigning. It is also the amount of notice an employer needs to give an employee before the termination of their contract.
30-DAY NOTICE PERIOD
A 30-day notice period means that the notice period can begin on any day of the month and will terminate exactly 30 days later. For instance, if an employee gives notice on the 10th of the month, their last working day would be the 9th of the following month. This type of notice period is straightforward, as it counts exactly 30 days from the date notice is given, regardless of the month or the number of days in it.
ONE CALENDAR MONTH NOTICE PERIOD
A calendar month notice period, on the other hand, aligns with the calendar month structure. 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. This can be interpreted in two main ways:
First to Last Day of the Month: This interpretation means that if notice is given on the 1st of the month, the notice period ends on the last day of that same month. For example, notice given on January 1st ends on January 31st. If notice is given on any other day of the month, the period extends to the last day of the following month. For instance, if notice is given on January 15th, the last working day would be February 28th (or 29th in a leap year).From a Specific Day to the Corresponding Day of the Next Month: This method calculates a month from the specific day notice is given to the corresponding day in the next month. For example, if notice is given on January 20th, the last working day would be February 19th.
Some labour lawyers believe that if your employment contract specifies ''one calendar month'', it refers to a full month as shown on a calendar (e.g., from the 1st to the 31st). If the contract does not explicitly state this or uses the term ''30 days'', then the notice period is calculated from the exact day that you give notice. If your contract does not specify a notice period at all, the default requirements of the Basic Conditions of Employment Act will apply.
LEGAL INTERPRETATIONS AND COURT RULINGS
How much notice must you give your employer?
In South Africa, labour laws and court rulings provide additional clarity on how notice periods should be interpreted:
One week if employed for six months or less.
Two weeks if employed for more than six months but less than a year.
Four weeks if employed for one year or more.
Court Case Examples: SAMRO v Mphatsoe (2009):
The court emphasized the importance of interpreting the employment contract according to the parties' intentions, especially when there is confusion about the notice period. 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 ruled that ''calendar month'' means from the first to the last day of the month if stated explicitly in the contract. The court 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. If the term ''month'' is used without clarification, the default legal interpretation might align with the common calendar month.
PRACTICAL IMPLICATIONS FOR EMPLOYEES AND EMPLOYERS
NOTICE PERIOD - FOR EMPLOYERS:
Clearly specify whether the notice period is ''30 days'' or ''one calendar month'' to avoid ambiguity. Make your intention as clear as possible.
Define the exact start date and end dates of the notice period in the contract.
NOTICE PERIOD - FOR EMPLOYEES:
Review the employment contract carefully to understand the notice period requirements.
If the contract is unclear, seek clarification from the employer to ensure mutual understanding.
Be aware of the legal minimum notice periods under the BCEA to protect your rights. An employee can be forced by a court to work out a notice period.
NOTICE PERIOD CONCLUSION:
Understanding the distinction between a 30-day notice period and a calendar month notice period is essential for both employers and employees. Clear communication and well-drafted contracts can prevent misunderstandings and legal disputes. When in doubt, seeking legal advice or clarification from the employer can ensure compliance and a smoother transition during the notice period. When legal disputes arise, the courts will ascertain what the intentions of the parties are by taking into consideration the nature of the contract and what the intended meaning is.