Labour Court ruling: Employees can't be fired for job hunting
Both the CCMA and the Labour Court described a company's misconduct charges against a former employee as “trumped-up”.
Image: File
A Labour Court ruling in Johannesburg has confirmed that South African employees cannot be dismissed for searching for new job opportunities, even if those jobs are with competitors.
In a recent judgment, the Labour Court in Johannesburg found that Lucchini South Africa unfairly dismissed its Safety, Health, Risk and Quality manager, Vishen Mahabeer, after less than six months of employment.
Lucchini South Africa took the Commission for Conciliation, Mediation, and Arbitration (CCMA) to court to overturn its finding that Mahabeer was fired unfairly. Both the CCMA and the court described Lucchini’s misconduct charges as “trumped-up”.
The charges included claims that he secretly negotiated a job with a direct competitor while still employed, and tried to pressure the company by raising the value of its intellectual property during settlement talks.
Mahabeer was also charged with failing to disclose his job negotiations during retrenchment consultations, refusing to hand over a work laptop password after being suspended, and dishonestly claiming a R20,000 relocation allowance despite allegedly not relocating.
The CCMA ruling under challenge found the dismissal substantively unfair and ordered Lucchini to pay Mahabeer 12 months’ compensation.
The Labour Court reduced the award to six months’ salary, it upheld the finding that the dismissal itself was unfair.
Central to the judgment was the court’s finding that Mahabeer was legally entitled to seek alternative employment, even with a competitor, while still employed.
The court held that a clause in Mahabeer’s employment contract purporting to prohibit him from taking steps to work for a competing business during his employment was unenforceable and contrary to public policy.
“Mahabeer did nothing wrong other than seek greener pastures, which he was legally permitted to do, and he lost his job for doing what the law allows,” the court found.
It rejected Lucchini’s argument that his conduct created a conflict of interest or amounted to dishonesty during a retrenchment process earlier in 2021. The judge found he had no obligation to disclose that he was exploring other job opportunities.
The court also dismissed claims that Mahabeer attempted to extort the company.
On the charge of insubordination, the court found Mahabeer’s refusal to provide a laptop password after being suspended did not amount to gross misconduct. The company was still able to access the device through its IT service provider.
The court further rejected allegations that Mahabeer acted dishonestly in relation to the relocation allowance.
The judge also noted Mahabeer commenced work in January 2021 but was only charged with ‘not relocating’ in June, after he announced his intention to resign and join Cast Products.
Mahabeer secured new employment within three months of his dismissal.
The court ordered Lucchini South Africa to pay Mahabeer’s legal costs.
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