What is the quantum of damages suffered by an employee in all cases of the unlawful termination of a contract, including:
- short notice
- defective notice
- giving no notice at all
or some other breach of contract giving rise to an election to terminate?
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- Unlike in the case of an unfair dismissal, in the case of exercising a contractual right to terminate an employment contract, the reasons or motives for exercising such right are normally irrelevant
(Mutsapha v Receiver of Revenue 1958 (3) SA 343 (A))
- Where an employer reserves for itself the right to terminate an employment contract, the only potential actionable wrong is the failure to pay the requisite notice or permit the employee to work during such notice period – damages in this regard are limited to what the employee would have earned during the notice period
(Harper v Morgan Guarantee Trust 2004 (3) SA 353 (W), so referred to recently in Khan v MMI Holdings (2021) 32 SALLR 44 (LC))
- The limited damages rule is applicable to all cases of unlawful termination, including short notice, defective notice, no notice given at all, or some other breach of contract giving rise to an election to terminate
(National Entitled Workers Union v CCMA (2007) 28 ILJ 1223 (LAC)
- In summary, therefore, if an employer lawfully terminates an employment contract (i e giving proper notice or having paid in lieu of such notice, the employee has no further claim for contractual damages)
