Question posted in the General Law category relating to KwaZulu-Natal
Hi, I have resigned on the 24th of March and my notice period states 2 Calendar Months. I have said that they my last day will then be on the 23rd of May as the research or articles I've been reading says that this is a bit of a gray area as this can be interpreted both ways as to be the day you resign till the preceding day of the next month, or in this case, two months. If I have the conversations with my boss and I cite the info as in the example below, do I have a solid leg to stand on? I have also read that if the employee doesn't specify that the calendar month should run from the 1st of one month till the end of the next month, then calendar month will be taken as the days in a calendar, from the 24th of one month till the 23rd of the month in question.
This is another area of mass confusion between the employer and employee. The contract of employment clearly states that an employee must give a calendar month’s notice, the employee therefore tenders his resignation on the 15th of the month arguing that a calendar months 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 we therefore recommend that employers indicate in contracts of employment that notice must be given between the 1stand the 3rdof a month in order to ensure that employees serve a complete month as notice.
Thanks in advance