Debunking general misconceptions
Updated: Sep 8, 2020
Author: Imraan Mahomed - Practice Area Lead, Employment/Labour Law
Some general misconceptions we encounter in practice:
Restraints of trade
Arising from the constitutional right to work, I've been told around the Sunday braai that restraint undertakings "are not worth the paper they written on". By Monday, I believe this to be true. This is simply not the case, as restraint agreements are enforceable by our courts. We routinely represent employers who seek to enforce restraint agreements against former employees and also employees who seek to resist the enforcement of their restraint undertakings.
The general principle is that courts consider restraints of trade enforceable, unless it is unreasonable and thus contrary to public policy. A restraint will generally be considered to be unreasonable if it does not protect some legally recognisable interest of the party in whose favour it is granted, but merely seeks to eliminate competition. A party seeking to enforce a restraint agreement is required only to invoke the restraint and to prove a breach of its terms. Thereafter, the onus is on the other party to prove that the restraint agreement is unenforceable because it is unreasonable. The enquiry into the reasonableness of a restraint is a value judgment that involves a consideration of two policy considerations, namely the public interest, which requires that parties to a contract must comply with their contractual obligations, and the principle that a person should be free to engage in or follow a trade, occupation or profession of his or her choice. The Labour Court is now routinely being called upon to enforce restraints of trade. Employers are entitled to seek the enforcement of these forms of agreements.
A summary dismissal means an "on the spot" termination
This is not the case. Our law recognises the right to a hearing before dismissal. A summary dismissal only means that notice is not paid or worked, once dismissal is established.
The Labour Court has no power to interdict disciplinary enquiries
This is not the case. The court has such power. It will, however, only exercise the power in exceptional circumstances. Employees who approach court without exceptional circumstances run the risk of paying the employers legal costs in opposing such applications.
Protected disclosures are there for the taking
This is not the case. An employee who alleges an occupational detriment arising from a protected disclosure must meet the requirements set out in the Protected Disclosures Act when approaching court for relief. These forms of claims come before the Labour Court often in the context of disciplinary proceedings.
If Union XXX has a strike certificate, only its members may strike on the strength of the strike certificate
This is incorrect. Any employee who identifies with the grievance/demand (even if not a member of the union) may participate in a protected strike relying on the strike certificate.
Dismissal during probation
The employee can simply be provided with one week's notice. This is not the case. There must be a fair process before effecting the dismissal. The dismissal may not simply be effected without some form of hearing.
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