028 425 1331 dirk@uyslaw.com

N sought an order to enforce an employment contract between it and R and to hold the latter to the three-month notice period stipulated in the contract. R, a Boeing 767 pilot, had given the applicant notice on 3 October 2005 that he was terminating his services and that his last day of employment would be on 3 November 2005.

N’s case was that this purported notice was ineffective since it was contrary to the employment contract concluded between the parties which obliged R to give three months’ notice of termination of services. R’s reply was that, in terms of the law governing employment contracts, N was barred from claiming specific performance, which would, in effect, compel R to work a three month notice period.

The Court found in favour of N and the reasoning was as follows:

The general rule in our law is that a party to a contract is entitled to enforce the contract. A Court has a discretion whether or not to grant specific performance. In the case of an employment contract a Court will, in the exercise of its discretion, not normally grant specific performance. However, this is not a hard and fast rule. It is a misconception to say, without qualification, that specific performance of an employment agreement will never be permitted. Various factors may play a determining role in deciding whether or not specific performance of an employment contract should be granted.

Such factors may, for example, be:

(a) the particular relationship between the employer and the employee;
(b) the nature of the employment contract;
(c) the nature of the work or service to be performed; and

(d) the prejudice or hardship to be suffered by the innocent party should specific performance not be ordered, compared to the prejudice that would be suffered by the employee if granted.

R was a highly qualified professional pilot. He had entered into the employment contract freely and voluntarily, and in terms thereof he had agreed to a three months’ notice period. If one considered the nature and circumstances of the agreement between the parties, the particular relationship between them and the nature and type of service rendered by R, one had to conclude that this was a case where specific performance should be granted.

Another factor to be considered was the potential harm that N would suffer should R not be held to the three-month notice period. It would take N at least two or three months to replace R if he were permitted to terminate the employment contract prematurely. The possibility existed that flights would have to be cancelled because N might not have someone to pilot the aircraft. N’s loss could be in the region of R1 million per flight.

Nationwide Airlines (Pty) Ltd v Roediger and Another 2008 (1) SA 293 (W)