[Question] Claim damages for breach of contract

[Houses4Rent]

I had bad luck again and my freshly recruited agent ran away.

She started 01/12 and decided today to leave to the Congo per 30/12.

She has a 4 weeks notice period in her contract. Can I claim damages from her in form of withholding her Dec salary in part or in full?
if yes how would one determine the amount?

Urgent please.

And Happy X-mas. Mine is certainly ruined now.

[sterne.law@gmail.com]

You can claim a breach, however it should be done via suing in a civil court.
Few, if any, employers do that. Ordinarily they just withhold any leave and/or salary.

[Houses4Rent]

Thanks Anthony, but how would one determine how much to withhold? Or are you saying I should not pay her anything at all?

What do the others think?

[sterne.law@gmail.com]

In terms of law, you can't withhold, you have to sue.
If you were calculating, the standard would be as if roles reversed; an employer wanting employee to leave straight away would pay out the notice period.
So if 3 weeks notice and no notice given, 3 weeks is the in lieu of pay.

[Houses4Rent]

Me suing her is pointless. And same applies for her to get her money too (suing me).

So she gave me 10 days notice, 1 months is in the contract, so I withhold 20 days?

Someone else said its statutory law that in probation period notice is one week. Is that correct? Trouble is there was no probation period agreed as the entire contract is as a contractor (INDEPENDENT CONTRACTOR AGREEMENT), not as an employee.

[sterne.law@gmail.com]

The BCEA sets out different notice periods.
A contract can only vary it if it is to the benefit of the employee.
A longer notice period is considered beneficial.

[Houses4Rent]

Ok, so that makes my case even stronger then? However, is a contractor really an employee? I guess she is as >80% of her income would have come from me.

[sterne.law@gmail.com]

I do not believe there is any issue of a contractor vs employee issue.
You refer to salary. Also the use of a contract that refers to contractor does not make the person a contractor, substance over form.
If she is a contractor then she could send her 'employee' to perform.

In terms of maths, on the supposition that it is lawful to withhold money, then clearly you do not owe any money.
You owe the employee 10 days and she owes the 4 weeks notice, thereby leaving her owing you.

[Houses4Rent]

oK, salary was the wrong word then.

Not every contractor has employees to delegate to, but I know what you tried to say.

She is not a bad person (I thin) and she still does her job during the notice period properly it seems, but I am still pissed off about her sudden change which I have difficulties to believe that it was so sudden due to various reasons. Anyway. I will probably just pay her for the days worked and move on with my life and focus on finding a new contractor instead. I am so drained and I never ever has so low energy levels before. I am about to fall asleep right now while I normally work until midnight no problem.
Finding staff now is pretty hard as people are all in sleep mode now and nobody is keen to work, never mind looking for work...