The South Gauteng High Court had no hesitation in relying on information posted on an ex-employee’s Linked-In online account in confirming that he indeed fostered a relationship with his previous employer’s clients. According to Johan Botes, Employment Director at business law firm Cliffe Dekker Hofmeyr, the case serves as another reminder of the unintended consequences and perils of posting information on social networking platforms like Facebook, Twitter and Linked-In.
“In Experia South Africa (Pty) Ltd v Haynes and another (judgment delivered on 18 May 2012) the employee’s previous employer sought to hold him to a restraint of trade agreement. In terms of this agreement, the employee was prohibited from taking up employment with a competitor for a period of 12 months after termination of employment,” explains Botes.
“It was not in dispute that the employee then indeed took up employment with a competitor during this restraint period,” Botes notes. “The employee sought to assail the agreement by claiming inter alia that that he signed the agreement under duress, the agreement was unfair, that the agreement is against the provisions of section 197 of the Labour Relations Act 66 of 1995 (LRA) and that there was no protectable interest the previous employer could enforce.”
“The Court made short shrift of the arguments advanced on behalf of the employee. It confirmed that hard bargaining by parties, even where the power relationship is unequal, does not mean that the agreement was concluded under duress. It held further that their agreement was not unfair ….”.
Botes explains that in terms of section 197 of the LRA, employees transfer on their existing terms and conditions of employment (or similar terms) from the old to the new employer when there is a transfer of a business as a going concern.
In the case of the employee, his services were transferred to his ex-employer when the latter acquired that business. Turning to the facts of the restraint, the employee argued that he should not be held to the terms of the restraint of trade as his (now) ex-employer got him to sign the restraint of trade agreement after he had transferred from the old employer to the new employer in terms of section 197.
He argued that he should have been transferred on his existing terms and that the new agreement was thus invalid. The court confirmed that section 197 does not prevent the new employer and transferred employee from entering into a new employment contract or any other agreement. This was indeed what happened when the employer presented the employee with a restraint of trade agreement that he was expected to sign. By entering into this agreement “… consensually and voluntarily, without demur …” the court rejected his pleas not to be held to the restraint of trade agreement.
“It was, though, the employee’s status on Linked-In that assisted in swaying the court that the restraint of trade agreement ought to be enforced against him. The court had regard to meetings evidenced by the information available on Linked-In to conclude that the employee indeed had contact with key clients of his erstwhile employer. In this regard, Judge Mbha stated that “His conduct in my view, affirms the necessity for the restraint which the applicant seeks to enforce.”
“The judge further had regard for the employee’s Linked-In profile in concluding that his previous employer indeed had an interest in seeking to restrain him from competing with it. The employee argued that his position did not afford him access to customer connections and confidential information. The judge stated as follows:
“One only has to have regard to his Curriculum Vitae which appears in his Linked-In profile to conclude that first respondent was a senior employee who was steeped in the business of the applicant and was privy to and possessed of its confidential information and customer connections.”
Botes says this case again shows that social networks are a mine of information for litigants and web-surfers. Employees, in particular, should be exercise extreme caution in posting information that could have a negative effect on the relationship with their employer.
“We see a growing trend of social network-related disputes that covers the entire span of the employment relationship. More employers are using information posted by job applicants on social network platforms when making decisions about hiring staff.
“Employers are also wising up to the reality that they may take disciplinary action against employees posting negative remarks about their employer, managers or clients. This case now shows us that employers can also use online information to take action against previous employees.
He adds, “The bottom line when it comes to posting remarks on social networks still remains: if you do not want to see it in the newspaper tomorrow, don’t post it.”
