Archive for Termination of employment

WHO SAID EMPLOYEES CAN NOT BE FORCED TO WORK?

Posted in Employment contracts with tags , , , on March 10, 2008 by labourlawoffices

Many employers have suffered the frustration of employees resigning from their employment without giving the required notice of intention to resign stipulated in their employment contract. In a recent High Court case, however, the right of an employer to enforce the terms of a contract of employment against an employee, was confirmed.

In this particular case, an airline pilot was required to give three months’ notice of termination of his employment to his airline employer. When he only gave one month’s notice of termination of employment, the employer sought to enforce the notice provisions of the agreement in Court. The pilot opposed the application, contending that under employment law, the employer could not force him to continue his employment relationship. Now, the Court does not usually order an employee to comply with a specific work obligation eg. attending and participating in a meeting. In this case however, the Court held that it had a discretion to enforce the three months notice period.

The various factors that come in to play in determining whether or not to grant such an order includes:

  • The particular relationship between the employer and employee;
  • The nature of the employment contract;
  • The nature of the service or work to be performed by the employee in terms of the contract;
  • The prejudice to the employer if specific performance were not granted, compared with the prejudice to the employee if it were granted.

In this case it was held that the real reason why the pilot had sought termination of employment was to enable him to take up more lucrative employment with another airline. It was also held that the pilot was not an ordinary employee because:

  • He was a highly qualified professional pilot who had contracted on equal terms with the airline and was able to command a high sum of money for doing so; and
  • in the performance of his duties, the pilot was in exclusive command of the aeroplane he was piloting, i.e. his decision-making insofar as piloting the aircraft was concerned, was not subject to the employer’s control.

It was accordingly held that the airline would be prejudiced if the order were not granted, in that it would take two or three months for the airline to replace the pilot and, in the interim, flights would be cancelled and income and goodwill may be lost. The Court accordingly decided to grant an order of specific performance against the pilot, namely that he had to continue serving the Applicant until a full three months’ notice period had passed.

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