When Contracts Can't Replace Culture: The Judgment That Should Alarm Every Employer

John Botha
2 hours ago
3 min read

A Sherq manager started job-hunting. His employer fired him for it. The Labour Court just declared that it's unconstitutional.

In February 2021, Mahabeer, a Safety Manager at Lucchini SA, did what millions of employed South Africans do quietly every day—he began exploring alternative employment opportunities. He opened negotiations with competitor Cast Products. His crime, according to his employer? Breaching a contractual clause that prohibited him from seeking work with any competitor while still employed.

Less than six months into his employment, Mahabeer was dismissed. Not for poor performance. Not for misconduct that harmed the business. For the act of job-hunting itself.

The Labour Court's response was unequivocal: this non-solicitation clause was contrary to public policy, unconstitutional, and unenforceable. Judge Tapiwa Gandidze struck down the clause entirely, upholding the CCMA's finding and reducing Mahabeer's compensation only because he'd secured alternative employment within three months—a mitigation factor that undermines the employer's entire argument.

The Constitutional Principle Employers Cannot Ignore

This case isn't merely about one unfair dismissal. It establishes a critical constitutional precedent: employers cannot contractually restrict an employee's fundamental right to seek alternative employment.

The Court anchored its decision in Section 22 of the Constitution, which guarantees every citizen freedom of trade, occupation, and profession. This isn't a minor technical right—it's a foundational freedom that recognises labour mobility and free competition as essential to a functioning economy and individual dignity.

The message is clear: while you can protect legitimate proprietary interests through reasonable restraint of trade clauses after employment ends, you cannot use contracts to prevent employees from looking for better opportunities while still working for you. That crosses a constitutional line.

Public policy, the Court emphasised, favours labour mobility and free competition. Any clause that operates contrary to these principles—no matter how eloquently drafted—will not survive judicial scrutiny.

Trust Renders Restrictions Unnecessary

Often the cause of such circumstances is the absence of trust.

Think about the relationship dynamic: instead of asking, "Why is our employee looking elsewhere?" some employers ask, "How can we punish him for it?" That's not management. That's surveillance and control dressed up as employment relations.

Organisations characterised by high trust don't need non-solicitation clauses because:

Employees believe their contributions are recognised and fairly compensated
Career paths are transparent and advancement is genuinely achievable
Problems are addressed through open dialogue, not discovered through monitoring job search activity
The psychological contract is honoured: promises made during recruitment are kept during employment

When trust exists, employees who do eventually move on become ambassadors for your employer brand.

The Proactive Alternative: Diagnose Before You Lose

Forward-thinking employers are implementing diagnostic tools that identify disengagement while it's still fixable:

Propensity to Leave Surveys

These confidential assessments measure actual flight risk by examining:

Job satisfaction across multiple dimensions (work content, relationships, compensation, development)
Career trajectory perceptions: Do employees see a future here?
Managerial relationship quality: The primary driver of retention or attrition
Work-life balance and wellbeing indicators
Organisational commitment levels
Active job search behaviour (yes, measured honestly rather than policed punitively)

The power? These surveys identify the Mahabeers of your organisation before they start conversations with competitors—when intervention, not investigation, can make a difference.

Climate Surveys: Reading the Cultural Temperature

Comprehensive climate assessments go beyond individual flight risk to examine systemic issues:

Trust in leadership: Do employees believe senior management has their interests at heart?
Fairness perceptions: Are policies applied consistently? Is compensation equitable?
Psychological safety: Can people raise concerns without fear of retaliation?
Recognition adequacy: Is good work noticed and appreciated?
Communication effectiveness: Do people understand the "why" behind decisions?
Growth opportunities: Can ambitious employees build careers here?

The Annual Employment Conference #AEC2026 brings together South Africa’s leading labour, HR, and employment-relations experts for a deep dive into the most urgent challenges facing employers in a changing world of work.

2026's conference promises to unpack the economic, technological, and legislative forces reshaping the workplace, offering practical insights on navigating organisational change, managing workforce risks, strengthening compliance, and preparing for the next wave of policy reform. Delegates will gain forward-looking guidance from top practitioners, case-based analysis of emerging employment trends, and strategic tools to build resilient, future-ready workplaces. Register now: https://www.globalbusiness.co.za/gbs-event-details/annual-employment-conference-2026

View our upcoming events: Upcoming Events and Qualifications, like AI Compass Capacitation Programme 2026, From Parental Leave to AI: Your 2026 HR Playbook, Annual Employment Conference 2026, Advanced Occupational Certificate: HRM Officer (NQF 6), and Advanced Occupational Certificate: HRM Officer (NQF 6).