Articles

Breach of notice period – Employers hit back

Business Brief February/March 2009
By Imraan Mahomed & Sibusiso Sibisi

There are various reasons why employees fail to give notice to employers on termination. Whatever the reasons, this phenomenon is not only common but also appears to be on the increase in the South African workplace. The good news for employers is that there are legal remedies.

Employers are often known to be "brow-beaten" by their employees for alleged unfair conduct of all sorts. These disputes are typically processed through the CCMA or the various bargaining councils with either awards of compensation or reinstatement being made in favour of the employee where the dispute is upheld in favour of the employee. But can an employee similarly be brow beaten in the instance where the employee terminates his employment contract in breach of the notice provisions contained in the employment agreement?

The reasons why employees fail to give notice to employers on termination range from a perception that there is little that the employer can do to enforce the notice provisions, to the allure of better career opportunities. To what legal relief is the aggrieved former employer entitled in such circumstances?

In brief, our law provides that the former employer would be entitled to accept the repudiation of the contract by the employee and sue for damages or to seek a court order against the employee obliging the employee to work out the remainder of the notice period (in law referred to as "specific performance"). Arising from the personal nature of the employment relationship courts have traditionally been reluctant to make orders of specific performance during the notice period, but are there exceptions to this general approach?

In the recent matter of Nationwide Airlines v Roediger & Another 2008 (1) SA 293 (W), the High Court was called upon to determine whether or not Nationwide was entitled to an order of specific performance against one of its pilots, Mr Roediger, who provided notice of termination to Nationwide in breach of his contractual obligations. Roediger sought to terminate his employment with Nationwide without providing three months’ notice, as required in terms of his employment contract and sought to take up employment with a rival airline. Nationwide sought to have Roediger serve the full three months notice period prior to his resignation and approached the High Court for such relief.

Roediger had been flying a Boeing 767 (B767) for Nationwide. The B767 is a highly sophisticated aircraft and requires intensive training of the pilots who fly the aircraft. It can only be captained by a pilot who is permitted to operate the aircraft in accordance with the regulations published in terms of the Aviation Act. There is good rationale for a notice period of three months which would presumably provide the employer with adequate time to replace the resigning employee. The court found that Roediger was in breach of his notice obligations and made an order in favour of Nationwide, obliging Roediger to work the full extent of his notice period. In making the order of specific performance the court held that the following factors would be considered:

1. The particular relationship between the employer and the employee;

2. The nature of the employment contract;

3. The nature of the service or work which is to be performed in terms of the contract; and

4. The prejudice or hardship to be suffered by the innocent party should specific performance not be ordered, compared to the prejudice that will be suffered by the employee, should it be granted.

The court also considered the potential harm that Nationwide would have suffered should Roediger not be held to the three months notice period. It was contended by Nationwide that it would take two to three months to find a replacement for Roediger. The routes flown by Roediger were competitive. The premature termination by Roediger it was alleged may also have lead to cancellation of flights. Many passengers had already purchased tickets for flights and there was a high demand for tickets at that time of the year. The court also considered the possible damage to Nationwide's goodwill as a result of Roediger's early termination. These were all factors which militated towards granting an order of specific performance.

Recent decisions such as Nationwide Airlines send a strong message that where the employee's duties require inter alia special skills, a court would be inclined to make an order for specific performance. This may not necessarily be the case where the employee is easily replaceable or the relationship between the employer and employee has already irretrievably broken down. Ultimately though, an order of specific performance is within the discretion of the court.  

In the final analysis employers in the situation of Nationwide are not without legal remedy and should the situation arise an aggrieved employer is well advised to seek legal advice as soon as possible.

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Imraan Mahomed

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