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How do you work out a ‘calendar month’ in an employment contract?

Peter McDermott
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Section 37(1)(c)(i) of the Basic Conditions of Employment Act No. 75 of 1997 (BCEA) stipulates the minimum notice period that an employee, who has been employed for one year or more, as 'four weeks'. This seems clear and not too hard to interpret or include in an employment contract. However, sometimes employers use the word 'month' while others use the term 'calendar month' to regulate this notice period. The Labour Court found itself having to interpret the meaning of 'calendar month' in a recent case.

In SAMRO v Mphatsoe (2009):

  • The employee, who had handed in his resignation on 8 January, contended that 'calendar month' meant that his notice expired on 8 February.
  • The employer contended that a 'calendar month' only begins to run on the first of a month (February in this case) and the notice period expires on 29 February.
  • In support of his argument, the employee cited the Interpretation Act 33 of 1957 and Interpretation of Statutes (Juta & Co).
  • Since the subject matter in question was a contract and not a statute, the court declined to accept his arguments.
  • The employer referred to various pieces of case law, some going back to 1923. However, the court found that these dealt primarily with contracts of tenancy, not employment.
  • Being impressed with neither of the parties' arguments, the court said that:
    - "[w]hat is necessary is to ascertain the intention of the parties by way of interpretation, an exercise in which the language and nature of the contract is relevant."
  • Looking at the language of the contract, the court found that 'month' was used throughout the contract but was qualified as 'calendar month' only with reference to the notice of termination. It stated:
    - "[T]hose instances where the word "month" is used is consistent with the interpretation that the month referred to need not necessarily run from the beginning of a month. By using the term "calendar month" in the termination clause, the parties obviously intended a meaning that in the circumstances can only be the meaning for which SAMRO contends."
  • Consequently, the court held that the employee was obliged to give notice of termination that would take effect on the first day of a month and run to the last.
  • In failing to do so, the employee breached his employment contract when he failed to work until 29 February 2008.

It's unclear why the court didn't cite the contra proferentum rule, which holds that in the case of an interpretational dispute, the contract should be interpreted in favour of the party who had no hand in drafting the contract. It's also not clear if this case be relied upon for a more old fashioned interpretation of 'calendar month'. What is clear is that employers should be doubly wary of the wording of their employment contracts, especially when drafting termination clauses.


Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions

 


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