# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Resigning - Notice Period

## momster

I am negotiating with my employers to release me earlier than my 3 month notice period as my husband has been relocated. The date they have agreed to release me is less than 3 months but after the date that my household will be relocated. can I be sued for breach of contract should I choose to leave on my original requested release date? (6 weeks after I informed them of my situation)

----------


## Dave A

> can I be sued for breach of contract should I choose to leave on my original requested release date?


Yes, they _can_ sue you if you're in breach of contract. However, the real question to consider is - *will* they sue you?

Getting a court order to enforce the contract just gets them an unhappy (potentially harmful) employee hanging around the premises.
Suing for money in normal circumstances would not be worth it.

What would be their incentive to sue?

----------


## manhav

Dave is 100% correct when he says that the employer will be permitted in terms of the law to sue for breach of contract. They will further be able to quantify their losses, being the period that you have failed to work.

I, however, doubt whether they will sue you for the sole reason that by the time they have managed to issue and serve summons on you, you would already have left the country.

You must be aware of the fact that in these particular circuymstances you may be penalised, and that you may not receive all the monies due to you.

Best of luck with your move.

----------


## Pap_sak

> I am negotiating with my employers to release me earlier than my 3 month notice period as my husband has been relocated. The date they have agreed to release me is less than 3 months but after the date that my household will be relocated. can I be sued for breach of contract should I choose to leave on my original requested release date? (6 weeks after I informed them of my situation)


I wonder what would have happened if they tried to get of you in 6 weeks instead of 3 months....

----------


## Dave A

> You must be aware of the fact that in these particular circuymstances you may be penalised, and that you may not receive all the monies due to you.


I tried to raise this argument once at the CCMA - deducting from monies owed in lieu of damages for failing to work notice. I was told that the failure to work notice and the issue of portion of salary not paid over were different issues and had to be dealt with separately. Worse still, CCMA would hear the employee's case for unpaid salary, but to claim damages for unworked notice they reckoned the company had to file a civil suit at the magistrates court.

I don't know whether I was being fed BS though. Would love to hear opinions, or better still, relevant precedent.

----------


## sterne.law@gmail.com

Hmmm, where to start.
No, you may not withhold the money in lieu of notice. You may however put such a clause for withholding money into the employment contract which then settles the matter. 
If you did not have the clause and wanted to get the money, you need to action it like any other form of legal dispute. Most will take the breach of contract as an issue outside of the CCMA/Labour Court and thus a magistrate or high court issue. 
As you say it is not if they can, but rather if they will. Of course if an employer wanted to it is not such a big deal. It would probably be a magistarte court jurisdiction and being a civil matter costs woudl probably be awarded. A drawback for the employee, especially if considering going overseas, would be in which court the matter will be heard. Even if the employee was only in joburg, the plaintiff elects where to file the motion and could thus refer it to the court where the contract was breached rather than where the plaintiff is resident, thus raising the costs for the employee. In an overseas issue the plaintiff can apply for the arrest of the defendent or attachment of goods. This is not allowed where the defendent is a local of the court, but their is an allowance for if the plaintiff is "fleeing" the country whereby the arrest or attachment to found jurisdicytion can be made.
As to the amount of money, yes the actual time period and salary is a quantitive amount which forms the performance element, but nothing stops me claiming in addition to that in the form of damages, where I can show the loss of profits for example while I was training a new employee. Presuming an employee was earning R10000, a 2 month short notice period worked could be costly. Lets say R20 000 for the 2 months plus R10 000 in damages plus the employees legal costs, maybe R15000 plus perhaps costs of the employers legal team and suddenly it could be R50 000 gone with the wind.

Remember R15000 is probably conservative. Add in the travel costs, if the matter is in say Cape Town and the defendent is in Joburg. Also unlikely that the case will be completed in a single sitting, etc, etc. 
Most employers simply withhold the leave pay and then let it rest. The othe factor from an employers perspective is, like any civil matter, it does not help suing if there is no money to get paid!!!

----------

Dave A (26-Apr-10)

----------

