Just the right amount of notice
The Employment Relations Authority has considered an unusual personal grievance case in which an employee claimed that their employer has given an incorrect notice period. This case clarifies the practical calculation when giving notice periods, particularly when notice is stated in months.
Tighe-Umbers v Jetconnect Limited [2024] NZERA 234
Claims
Mr Tighe-Umbers was employed by Jetconnect as a pilot until the date of his dismissal on 24 April 2022. He claimed that he was unjustifiably dismissed by Jetconnect, because it was required to give three months’ clear notice, and it failed to do so. In effect, he claimed that his notice period was a day short, and his final day of employment should have been 25 April 2022.
Background
After a period of leave without pay due to the impact of COVID-19, Mr Tighe-Umbers was required to receive recurrency training in Melbourne, in order to resume work. He declined to receive a COVID-19 vaccination, and he was prohibited from travelling to Melbourne to receive the training, due to border restrictions at the time.
Jetconnect declined to accept a proposal for Mr Tighe-Umbers to remain on leave without pay until the border restrictions ended. As no other work was available at Jetconnect for Mr Tighe-Umbers, on 24 January 2022 it gave him three months’ notice of termination, with a termination date of 24 April 2022.
Agreed notice
The collective agreement applicable to Mr Tighe-Umbers required three months’ notice of termination to be given by Jetconnect. The parties did not agree on what this meant in practice. In resolving the parties’ dispute, the Authority referred to Sheridan v Pact Group, which found that a two-week notice period did not include the day on which the notice was given. This decision referred to section 54 of the Legislation Act 2019, which provides that if a period of time is to be calculated from or after a specific date the calculation does not include that day.
When was the first day of the notice period?
Although the Legislation Act did not apply to the interpretation and application of employment agreements, its approach was accepted as persuasive. The Authority followed this and noted that it is reasonable that the notice period would be calculated with the day following notice being given as the first day, as this was consistent with the purpose of a notice period to provide the other party the specified length of time to end the employment relationship.
In this case, the letter containing the notice of termination was sent and received on 24 January 2022. Therefore, the starting date for the notice period was the day after the notice is given, that is 25 January 2022.
When was the last day of the notice period?
Jetconnect took the position that Mr Tighe-Umbers had been given three months’ notice on 24 January 2022 – and the three-month notice period began on 25 January 2022 and ended on 24 April 2022. It submitted that this approach accorded with section 56 of the Legislation Act, and a requirement for three months’ notice had been met by giving written notice on 24 January 2022, as follows:
- 25 January – 24 February 2022 (first month)
- 25 February – 24 March 2022 (second month); and
- 25 March – 24 April 2022 (third month).
The Authority accepted this interpretation of the notice clause and noted that the Legislation Act is relevant in providing guidance when interpreting a notice period in an employment agreement. Following the approach under the Legislation Act, it was found that the three months’ notice period ended immediately before the corresponding day in the ending (third) month, that is 24 April 2022.
Outcome
The Authority determined that the three-month notice period started on 25 January 2022, the day after the notice was given, and ended on 24 April 2022. As such Mr Tighe-Umbers had been given the required three months’ notice and was not unjustifiably dismissed.
What does this mean?
When giving notice of termination, the notice period begins on the day after the notice is given. The day the notice is given does not count as part of the notice period. Further, when notice is stated in months, the last day of the notice period (and thus the last day of employment) is on the day before the date in the final month that corresponds with the start date of the notice period. In this case, three months’ notice was given on 24 January 2024, so the notice period began at the start of 25 January 2024, and the employment was terminated at the end of 24 April 2024.
