Calendar Month

[Dolby]

Will they only accept if you tender your resignation on the 1st of Jan? This is a weird company

They accept whenever it suits them - regardless of contract. In this case it suits them to pay me until 31 December and 'save' a month salary which they suspect I'll do nothing. They don't believe it's fair to have to pay me 58 days.

When I pointed out that giving the paper now or 3 weeks is the same result (ie 31 January), they said they'll have to discuss it with management. They also said I have given my intention to resign on 02 December and they can hold me too it (again, against the contract which says this needs to be in writing).

I'd personally think they'd over the moon and jump at the chance. The Director told me to 'fsck off out here and I'll pay you till next month' and they've offered a mutual separation of 2 months, which I declined. This should be a celebratory moment for them

 

[Kosmik]

Will they only accept if you tender your resignation on the 1st of Jan? This is a weird company

No it's std practice in a lot of companies. You can resign at any time but may only leave at the end of a full calendar month.

 

[Dolby]

No it's std practice in a lot of companies. You can resign at any time but may only leave at the end of a full calendar month.

+1

As per my link earlier, in a real case :

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.

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.

Further more, this is their contract which they wrote. Found this on the same link :

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.

 

[MidnightZA]

What is the name of this company? PM me if you rather not want to post it here please. It sounds very much like a place I worked for few months ago

 

[thehuman]

Asume your new job only starts in feb

 

[Dolby]

And it's not like I'm earning big bucks - this is purely to try their best to screw me over and get out of any payment needed. Just a brief history for those that haven't read my earlier post :

I've been there close on 3 years - but around 18 months into working, we had a management change to a ruthless and sociopathic GM. She had plans to change the company structre, acquire new companies and pretty much turn things upside down. I wasn't part of the plans and issued fictitious and dodgy warnings every few weeks with the intention of firing me.

I appealed the warnings (a mission on it's own, as they wouldn't accept an appeal on the one) and they kindly selected and paid for a 'neutral' 3rd party that protects the interests on the employer. He (surprisingly, har har) sided with the employer in every case despite evidence and proof of lying.

I decided to get a real 3rd party and approached CCMA for conciliation. I didn't refer them to CCMA, but only wanted a 3rd party to hear me out. Employer weren't happy and rather offered me a new position and a new start at the company, on condition I cancel CCMA - which I did.

I started this position and smartly, received an unrealistic 130% growth figure over the previous year. I decided to get a revenue report of the clients and each year from 2011 they average the same revenue ... now they want 130% on top of this figure. Further more, I'm the only one with this growth figure ... given with the sole purpose of getting rid of me 'legally'.

I then suggested a solution and called a formal meeting to request new accounts to make this target. Not a lower target - but rather a way to reach. This was denied.

A few weeks after they agreed to a mutual separation of 2 months - which I declined.

Then, a few weeks later the Director and I got into an argument and I was told to 'fsck off out the building right now because I don't need your attitude'. I declined and he said he'd put me on performance for not hitting the 130% and fire me anyway. He's implemented this. He says I should rather leave because it looks better on my CV than when he fires me.

I've now had 2 meetings and my 3rd is scheduled January. I can either :

1. Go to the meeting and get dismissed ; then go to CCMA with the above and possibly get even more compensation. This also drags out the entire process and it's very messy - but I'm prepared.

2. Resign now, they accept as per contract and we go our own ways. This has the added benefit for them that I can't go to CCMA for constructive dismissal as well, as resigning in the face of a hearing means you have very, very slim rights. To me, this benefits both parties.

 

[Dolby]

Asume your new job only starts in feb

I don't have a new job. I have some savings to assist - but I need to urgently get out. Working for such a company that will stop at nothing in taking it's toll on me. They outright lie (ie I have on record that I swore at the GM, with zero proof because I didn't). One of the fabricated stories above.

 

[Dolby]

Anyhow - thread was to see who was right on calendar month, them or me. Once again it seems that their HR is incorrect and the only way to defend myself is via Google and forums. In our company HR is 100% for the employer seems to lack the knowledge to assist in many a situation .

 

[diapason]

+1

As per my link earlier, in a real case :

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.

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.

Further more, this is their contract which they wrote. Found this on the same link :

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.

I suspect that the notice period has become rather fuzzy quite simply because of the number of people who have tried to get around it, and maybe succeeded. In over 40 years of working before my recent retirement a calendar month's notice meant that you handed in your notice on or before the 1st of the month at the end of which you wanted to leave. This was meant to protect both the employer AND THE EMPLOYEE. This means that if you have handed in your contractually required calendar month's notice in December for the end of January they have to pay you until the end of January. Even if they ask you to leave earlier they have to pay you.

Just watch out for one other thing. Some companies will try to persuade you to take leave for part of the notice period instead of paying you out. Basic Conditions of Employment says no leave can be taken during the notice period. Some employers do allow it, BUT THEY CANNOT FORCE YOU. I hope you know how many days leave are due to you - everyone should be keeping track of this, but most don't. Rather be paid out for the leave even if you have to pay tax on it at your marginal rate if you don't know when you will be working again.

 

[SauRoNZA]

Eish Dolby. Should have gone to the CCMA when they wanted to force you not to the first time?

Have you got any of that on writing? I bet the CCMA will have a field day with that alone now because it's almost an admission of guilt.

 

[Dolby]

I have in writing saying 'new position is conditional to you cancelling CCMA. Please bring to proof of cancelling to your meeting'

Reason I didn't go ahead is because I weighed pros and cons of staying or leaving. CCMA would more than likely have given 3 months. As this was November, I'd only have a salary to Jan ... With no one hiring in that time. I'd rather have a guaranteed job

 

[Mystic Twilight]

...

I've now had 2 meetings and my 3rd is scheduled January. I can either :

1. Go to the meeting and get dismissed ; then go to CCMA with the above and possibly get even more compensation. This also drags out the entire process and it's very messy - but I'm prepared.

2. Resign now, they accept as per contract and we go our own ways. This has the added benefit for them that I can't go to CCMA for constructive dismissal as well, as resigning in the face of a hearing means you have very, very slim rights. To me, this benefits both parties.

I luckily haven't had to refer to the CCMA, if the CCMA doesn't charge you anything for getting them involved then based on your circumstances I would take option 1 and get compensation which is apparently a good few months worth of salary, unfair dismissal is a big no-no for the CCMA as far as I have heard, especially if the company did not take remedial action for problems that could be "objectively" solved, like extra training. You also have the added benefit of providing case law to backup on your contract. While you may have financial constraints to see through the CCMA action, your (ex)company on the other hand has to dedicate people, time, and money. GM's and Directors don't typically want to spend time at a CCMA hearing when they have a business to run, especially your GM as from your story it seems like most of your infractions were against her and CCMA may call her in to provide her side of the story.

 

[Dolby]

.

+1

Though I've realised my company doesn't operate like a standard company. They're one of those that will stab in you in the back, and twist ... just for the extra pain. Then when you fall? They'll kick you when down. Money means less than winning / getting even.

Anyway - I've just realised even if they DO dismiss me in January ... that's a termination of the contract ie calendar month and end February ? Surely a termination is termination, regardless of how ?

 

[diapason]

+1

Though I've realised my company doesn't operate like a standard company. They're one of those that will stab in you in the back, and twist ... just for the extra pain. Then when you fall? They'll kick you when down. Money means less than winning / getting even.

Anyway - I've just realised even if they DO dismiss me in January ... that's a termination of the contract ie calendar month and end February ? Surely a termination is termination, regardless of how ?

If they do dismiss you, you will be able to claim UIF. It's not a fortune - the maximum is about R5,600pm for just under 8 months - and they will expect you to be job hunting, but get what you can. You don't have to stand in queues at their offices. You can do it online through www.ufiling.co.za

 

[joevan]

If they do dismiss you, you will be able to claim UIF. It's not a fortune - the maximum is about R5,600pm for just under 8 months - and they will expect you to be job hunting, but get what you can. You don't have to stand in queues at their offices. You can do it online through www.ufiling.co.za

That's a new one?? As far as I know U-filing is only for employers to submit UIF payments, not for claimants. If I am wrong please explain the process.

 

[diapason]

That's a new one?? As far as I know U-filing is only for employers to submit UIF payments, not for claimants. If I am wrong please explain the process.

That's what I thought. I went once to the Cape Town office to claim after my recent retirement but was turned away as there were already too many people there. They said to try applying online. After finding nothing on the Labour website, I e-mailed them and asked what to do. Their reply was to use the ufiling website. You click on Activate my ufiling account - there is an employee option.

It's a slow process. I can see that I've been assessed but am still waiting for a response, but it beats waiting in that never ending queue.

 

[Mystic Twilight]

...

Anyway - I've just realised even if they DO dismiss me in January ... that's a termination of the contract ie calendar month and end February ? Surely a termination is termination, regardless of how ?

Not quite, (except for something from the law since I'm no lawyer and not familiar with the Acts) according to the termination clause in your first post they have to give you written (or by E-mail) notice of termination. Your director telling you to F off doesn't count. Your employment contract is binding on both employer and employee. As it currently stands, the only termination currently in effect is yours that is due at the end of January (unless your termination notice is not counter signed by your employer and they dispute it with the intention of you to stay longer), it is also not possible for another termination to come into effect for a later date unless both parties agree that the first termination is cancelled (barring any dispute to your notice).

The only thing they can try hit you with, which I think is what they plan to do in January once they have enough infractions against you, is to dismiss you with immediate effect based on section 18.4. However as I said before, and as per their reference to the labour act, CCMA does not take kindly to dismissals if the employee deems it to be unfair. The odds are stacked heavily against the employer to prove their justification and unless the arbitrator is an idiot, things like disciplinary action required for sending a harmless blank e-mail is going to be self damaging to the employer.

 

[AchmatK]

As it currently stands, the only termination currently in effect is yours that is due at the end of January (unless your termination notice is not counter signed by your employer and they dispute it with the intention of you to stay longer)

I don't think there is a requirement for an employer to accept or decline a termination done by an employee through a resignation letter.

 

[Mystic Twilight]

I don't think there is a requirement for an employer to accept or decline a termination done by an employee through a resignation letter.

Under normal circumstances I agree, I just mention it in this unusual circumstance to guard against the event that a dispute occurs and it is not possible to objectively prove anything. I should have added in my previous post, it could be possible for them to retype the whole letter, trace and forge the employee signature if its not too complex, and then they counter sign it with an earlier date, say October for termination to happen in December. I know its committing fraud, but not exactly easy to prove when everything is hinging on an A4 paper and both parties want out with the only dispute being the date.

 

[diapason]

Under normal circumstances I agree, I just mention it in this unusual circumstance to guard against the event that a dispute occurs and it is not possible to objectively prove anything. I should have added in my previous post, it could be possible for them to retype the whole letter, trace and forge the employee signature if its not too complex, and then they counter sign it with an earlier date, say October for termination to happen in December. I know its committing fraud, but not exactly easy to prove when everything is hinging on an A4 paper and both parties want out with the only dispute being the date.

Could he not perhaps get around it by "confirming" his resignation via an e-mail to his employer with a copy of the original letter attached? I'm assuming that he did keep a copy. First prize would be that he gets a read receipt for it so he can prove that the employer received it in the state that he originally sent it.