Public service employees require special attention.  A calendar month is regarded as ‘one of the 12 periods of time in which the calendar is divided’.  This is according to Black’s Law Dictionary (7th ed, 1999).  The Public Service Act, 1994 (promulgated under Proclamation 103 of 1994) defines a ‘calendar month’ as ‘a period extending from a day in one month to a day preceding the day corresponding numerically to that day in the following month, both days inclusive’.  The Interpretation Act 33 of 1957 defines a ‘month’ as a ‘calendar month’.  So where a statute refers to a ‘month’ it must be assumed that it is a calendar month.  This applies to the Public Service Act where reference is only made to a ‘month’ in various sections and not a ‘calendar month’.

Comment:

Employees in the public service are not prevented from resigning, provided they do so in writing and agree to work out the notice period, usually a calendar month.  Employees who have been notified of a disciplinary hearing may not agree to shorten the prescribed period of notice of resignation.  That implies that employees may still be dismissed before the expiry of the notice period.  But if challenged the executive authority will have to prove that a fair procedure was followed and that there was a valid and fair reason to dismiss, related to conduct or capacity.  This is what happened to Toyota, even though the real problem was the delay in following the legal steps – see

Application of  the PSA

The Public Service Act applies to or in respect of ‘officers and employees whether they are employed within or outside the Republic, and in respect of persons who were employed in the public service or who are to be employed in the public service’.  But it does not apply in so far as section 2 provides otherwise and where it is ‘inconsistent with the context or clearly inappropriate’.

The relevant executive authority may not agree to a period of notice of resignation shorter than the prescribed period of notice of resignation applicable to that employee after notice of a disciplinary hearing is given to the employee . (section 16B)

PSA Regulations

The Public Service Regulations GNR.1 of 5 January 2001 (GG No. 21951) deal with resignations in G.2 of Part VII under the heading [Procedures for appointment, promotion and termination of service].

An executive authority must prescribe the manner in which employees must submit resignations and  record the reasons given for resigning.  Employees may resign from the public service and unless otherwise agreed with the executive authority, must give at least one month’s written notice of resignation when paid monthly.  Casual employees may resign on notice of less than a month and it need not be in writing.

Draft Public Service Regulations, 2015: Invitation for public comment (GN 800 of 3 August 2015 in GG 39051)

Section 66 – Resignation

(1) An employee may, without the approval of the executive authority, resign from the public service, and for that purpose, shall-

(a) in the case of any employee who has been employed for more than four weeks, give at least one month’s notice of resignation; or

(b) in the case of any employee who has been employed for less than four weeks, give at least one week’s notice.

(2) Subject to section 16B(6) of the Act [If notice of a disciplinary hearing was given to an employee, the relevant executive authority shall not agree to a period of notice of resignation which is shorter than the prescribed period of notice of resignation applicable to that employee], the executive authority and the employee may agree to a period of notice shorter or longer than the applicable period referred to in sub regulation (1).

(3) An executive authority shall stipulate the manner in which an employee shall submit his or her resignation.

(4) An executive authority shall conduct and record an exit interview with an employee who has resigned and record the reasons given by the employee for his or her resignation.

(5) An employee who has submitted his or her resignation to the executive authority may only withdraw his or her resignation with the written approval of the executive authority.

(6) If notice of resignation is given in terms of sub regulation (1), the executive authority may require the employee to return all official equipment, vacate his or her office and leave the department’s premises before the expiry of the notice period on a day stipulated by the executive authority and not to perform any duties for the remaining notice period.

Case law

In South African Music Rights Organisation Ltd v Mphatsoe (J 595/08) [2009] ZALC 34; [2009] 7 BLLR 696 (LC); (2009) 30 ILJ 2482 (LC) (23 March 2009) Van Niekerk J held that as the employment contract specified notice of ‘one calendar month’ it meant that notice must be given on or before the first day of a particular month and terminated on the final day of that month.  The Labour Court held that the meaning of calendar month had to be determined from the contract itself.  The contract used the word ‘month’ frequently and only qualified it with the word ‘calendar’ when dealing with termination.  That meant the parties contemplated that notice had to be given at the beginning of a particular calendar month, effective from the end of that same month.

Excerpts from judgment [footnotes omitted]

[7]    . . . .  In support of this submission, the respondent referred to the Interpretation Act 33 of 1957. The Act defines a ‘month’ as a ‘calendar month’.  The respondent also relies on Devenish Interpretation of Statutes (Juta & Co) to submit that a calendar month need not necessarily run from the beginning of a month.  Finally, the respondent relies on section 1 of the BCEA, which defines a “month” as a calendar month, but without any indication that a calendar month necessarily runs from the first day of a month to the last day of the same month, and section 37 of the Act, which entitles a party to a contract of employment to terminate an employment contract on not less than four weeks’ notice if the employee has been employed for a year or more”.

. . . .

[11]     There is no merit in the respondent’s submissions, based, as they are, on rules of statutory interpretation rather than the interpretation of the contract to which he was a party.  In relation to section 37 of the BCEA, that section fixes a minimum period of notice.  Parties are free to contract, as they have done in this instance, for a more favourable term, and will be held to that term.  But the authorities referred to by SAMRO are equally unpersuasive.  Stocks & Stocks is the only clear authority for the proposition that when a contract requires a calendar month’s notice, notice is effective from the first day of the month and expires on the last.  I have my doubts as to whether this proposition is capable of elevation to the level of principle.

. . . . .

[13]    The proper approach, in my view, is that expressed by Comrie AJA in his brief concurring judgment in Edgars.  Comrie AJA observed that a month or a calendar month does not necessarily begin on the first day of the month any more than a calendar year necessarily begins on 1 January.  What is necessary is to ascertain the intention of the parties by way of interpretation, an exercise in which the language and nature of the contract is relevant.  This approach avoids the application of mechanical and possibly arbitrary rules to the variety of circumstances that inevitably manifest themselves when employment is terminated, and enjoins a court to focus primarily on the terms of the contract between the parties.