By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
Both employers and employees are entitled to want to part ways. However, how the parties behave in bringing this wish to reality is subject to legal scrutiny. For example, where an employee has signed a restraint of trade agreement a court might find fault with him if he then joins a competitor of his employer. On the other hand, where an employer satisfies its desire to be rid of an employee by firing him unfairly, the CCMA and Labour Court are likely to intervene.
In the matter between Lucchini South Africa (Pty) Ltd vs Mahabeer (Lex Info 19 December 2025. Labour Court Case No: JR1794/22) the employee was found guilty of five charges and dismissed. The CCMA found that the dismissal was substantively unfair. The employer took the matter to the Labour Court on review and lost again. As regards the five charges based on which the employee had been fired the Court had this to say:
Charge 1: The employee was found guilty of taking preparatory steps to join a new employer in contravention of the restraint of trade agreement he had signed. The Court found that such a clause in a contract breached the employee’s constitutional right to engage in trade and that, at the point when he was making the said preparations, the employer had no protectable right.
Charge 2: The employee was found guilty of informing the HR Manager that the Managing Director should consider how much Lucchini’s Intellectual Property (IP) was worth to him. The court found that his action had not constituted an offence.
Charge 3: The employee was found guilty of dishonestly withholding from Lucchini during retrenchment consultations the fact that he was negotiating his employment with a competitor of the employer. The Court found that this did not constitute dishonesty.
Charge 4: The employee was found guilty of insubordination in that, when Mahabeer was informed of his suspension and instructed to hand in company property, he refused to provide the employer with the laptop password despite repeated requests, and told her, ‘you can get it from the IT service provider’. The Court found that the password had been Mahabeer’s property. This, and the fact that the employer could have obtained the password from the IT service provider rendered the employee’s action one that did not constitute a dismissible offence.
Charge 5: The employee was found guilty of gross dishonesty, in that when he had been hired, Mahabeer received a relocation fee of R20 000, but had failed to ‘relocate’ from Durban to Gauteng, thereby deceiving Lucchini. The Court found that Luchini had elected to live in a guesthouse in Johannesburg instead of buying or renting a property and that this constituted a relocation. The relocation agreement had not obligated Mahabeer to buy a property. The the R20 000 relocation amount paid to him had been to enable him to buy furniture and appliances, and he had used it for that purpose.
The Court found that the dismissal had been unfair and awarded the employee six months’ compensation. The Court also ordered the employer to pay Mahabeer’s costs.
This expensive outcome is a warning to employers to avoid bringing invalid charges against employees. As the difference between valid and invalid charges can be difficult to distinguish employers need to make sure that their managers have been properly trained in the complexities of labour law.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
