When parties conclude a contract, obligations and rights arise. Should one party fail to fulfil their contractual obligations, this constitutes a breach of contract. The aggrieved party then has various remedies available. For instance, they might seek to recover losses resulting from the breach through a damages claim. Importantly, the aggrieved party can also enforce the contract by seeking an order for specific performance against the party in breach.
However, this doesn't seamlessly apply to the employment context, particularly concerning the enforcement of notice periods. Courts, while retaining a discretion in granting orders of specific performance, are usually reluctant to enforce notice periods that employees are required to fulfil.
The court in Santos Professional Football Club (Pty) Limited v Igesund and Another rationalised this stance based on various policy considerations. These include disapproval of forced labour, the availability of damages as a remedy for employers, and a hesitance to infringe upon an employee's rights to freely exercise their profession, as well as their rights to movement and dignity. However, in Nationwide Airlines (Pty) Limited v Roediger and Another, the court stated that specific performance might sometimes be ordered.
Recently, in Bidventure Consulting (Pty) Limited v Karina Smit, the Labour Court had to consider a case where an employee, having found another job, resigned by giving only seven days' notice, instead of the 60 days' notice provided for in their employment contract. Despite the employer's objection to the shortened notice, the employee persisted in the breach. In response, the employer sought an urgent court order of specific performance to enforce the full notice period. Although the court agreed with the urgency of the matter, it wasn't convinced that the order was justifiable.
The employer justified its application for specific performance by arguing that the 60-day notice was crucial for finding a replacement and ensuring that a handover and continuation of duties take place. Non-compliance with the notice period, the employer claimed, could lead to it breaching its contractual obligations towards its clients, and risking potential damages claims and reputational harm.
Considering the specifics of the case, the court was not persuaded by the plea for specific performance. Given the industry in which the employer operated in, the likelihood of securing a replacement within 60 days was slim. The employee's short tenure of under two months (during which she took 16 days of leave) also impacted the court's decision. The court deemed the risks claimed by the employer as "minimal or non-existent". The employee, it was established, had minimal insight into the employer's projects and others had managed her duties before her employment. Further, she claimed to have completed the handover — a fact which was not disputed and thus accepted by the court. The disagreement about the employee's duties between the parties further dissuaded the court from granting an order for specific performance.
The takeaways from this judgment are:
- Forced labour being outlawed, along with everyone's right to freedom of movement and choice of profession, makes courts wary of enforcing employees' notice periods through specific performance.
- However, as there's no hard and fast rule against orders of specific performance related to employment contracts, its granting depends on the unique facts of each case and the court's discretion.
- Employers should be careful in their communications after receiving resignation notices in contravention of employment contracts. In the Bidventure case, the court found that the employer's real motive was not so much about the principle of enforcing a contractual obligation "in general" but rather to compel the employee to work the notice period to the advantage of the employer. The employer had told the employee that she must simply perform her duties and it was immaterial if she performed them in terms of the required standards.
- If an employee resigns in contravention of their notice period, employers may have grounds for a damages claim, but the standard requirements for such a claim would still apply.
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