Your common-law rights and reasonable notice claims
Does your contract of employment contain an explicit termination provision?
If your employment contract contains an explicit termination provision, then this is the clause that the courts will enforce.
However, many written employment contracts contain termination clauses which are defective. This is either because the documentation is so basic that a termination provision is not even mentioned or, if it is, the termination clause operates in a very narrow set of circumstances, none of which are relevant to the case at hand. It may, for example, permit termination only in the event of insolvency, mental illness, redundancy or gross misconduct but not for non-performance.
Each case needs to be examined individually, but where your employment contract is silent on notice or the clause is somehow defective or the contract is otherwise unenforceable, the courts will imply a term of reasonable notice.
What is “reasonable notice”?
There are no fixed rules here and the courts have a wide discretion.
However, in arriving at a figure, the courts will consider the length of tenure, the seniority of the employee and the level of the salary package. If you have spent more than one or two years at a senior level on a six-figure salary package, you could expect to receive between 6 to 12 months’ notice based on the total value of your remuneration package. This is also an issue that would need to be assessed on a case-by-case basis.
How not to compromise your common-law rights and your reasonable notice claim
It is extremely important that you do not take any step that may compromise your reasonable notice claim. The guidelines set out below will not only help preserve your legal rights. They will also help to ensure your continued survival in the office.
Don’t resign without taking legal advice
Under no circumstances should you resign from your employment without taking prior legal advice. If the contract of employment is going to be terminated, the general rule is that you should let the employer do the terminating.
In circumstances where you feel that resignation is your only option, perhaps because you believe your health is at risk, the letter of resignation needs to be carefully crafted to reflect the real reasons why you feel you must resign. Such a letter should only be written after taking legal advice.
Be the model employee and watch your conduct
It is also important that you do not “slacken off” in the performance of your duties and responsibilities. This is sometimes tempting to do if your morale is low. However, you need to be mindful of not conferring on your employer any additional grounds for the termination of your employment. Similarly, be scrupulously careful about your conduct, particularly around staff – especially at social gatherings. In addition, be wary of fake “bullying/harassment” allegations which can easily arise out of your attempts to performance-manage staff.
Don’t reveal that you are taking legal advice
You should also not reveal that you are taking legal advice. You should convey the impression to your employer that you are simply “muddling through”. If an employer knows you are taking legal advice, they are likely to engage their own lawyer and an opportunity will be lost to deal directly with the decision-maker in your company. Instead, you should attempt to use whatever influence, goodwill and “chemistry” you still may have with your manager to achieve an outcome that is likely to be more generous than what you could obtain out of some corporate lawyer.
Don’t sign any documents without taking legal advice
Under no circumstances should you sign any documents that may incorporate a new termination provision into your contract. You could easily go from having a reasonable notice claim of between 6 to 12 months to being terminated on 30 days’ notice under a new agreement.
Neither should you sign a Settlement Agreement or Deed of Release without getting prior legal advice. It is not uncommon for these types of agreements to impose obligations which do not appear in the original contract of employment and which will have the effect of extinguishing your common-law claim.
Don’t make any admissions
If you are facing a disciplinary interview or even an operational meeting that morphs into a disciplinary meeting, you should nonetheless be very careful about the way you express yourself.
When called upon to do so, you should provide an explanation for your conduct or performance. A properly considered explanation may defuse the situation and prevent the matter from going any further. However, you should avoid making admissions that will simply be used against you at a later date, or which might open up other lines of enquiry.
It is, for example, unhelpful for you to say “… I guess my sales performance in the last quarter has been unsatisfactory…” Rather, you might be better off saying “… the sales figures were down the last quarter but there are many reasons for that and I’m happy to write a memo to you detailing the cause…” If you feel that you need extra time to provide a nonincriminating answer, you should not be afraid to ask for it.
Do not agree to changes in your duties and responsibilities
Do not agree to changes in your duties and responsibilities as this could be construed as an agreed variation to your contract with profound implications. Until prior legal advice has been obtained, you should be noncommittal regarding any of the proposed changes and responsibilities. To buy extra time until such advice is obtained, you could consider asking for a Position Description which unpacks the proposed alterations to your duties/responsibilities.
Keep a diary
Make sure you keep a proper diary that chronicles on a day-by-day basis events, meetings and telephone calls which impinge upon your performance or duties. If proceedings have to be issued, you will almost certainly have to provide sworn affidavit evidence. The process of creating an affidavit will be made much easier if you can refer to a contemporaneous record.
Keep important documents that relate to your employment conditions off-site
Keep a photocopy of all relevant emails, correspondence, the contract of employment, the company manual and any other relevant documents off-site. In the event that your employment is suddenly terminated, you may be locked out of your office and your computer. In this event, you may therefore be denied the documentation needed to evaluate and build your case. Be mindful, however, of your obligations of confidentiality and only copy material that relates to your employment conditions.
Do not trust anyone in the office
Do not trust anyone in the office. This may seem paranoid, but we have acted for many clients whose termination has been brought about by discussions they have had with work colleagues, whom they thought they could trust, only to find that the remarks made in such discussions have found their way to the manager. You need to keep your own counsel.
Do not use the office email to correspond with your lawyer
Do not use the office email system to make critical remarks about work colleagues, even if these emails have been “deleted”. Still less, should you use the email system to correspond with your lawyer. Again, this may seem paranoid, but you should assume that your emails are being read and act accordingly.
If you are seeking legal advice about a reasonable notice claim, please don’t hesitate to contact us
From our clients
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice regarding your own situation.