Searching for Greener Pastures Is Not Dismissible Misconduct

A recent Labour Court judgment has delivered a strong reminder to employers: An employee does not commit misconduct simply by looking for another job while still employed. Even where the potential opportunity lies with a competitor, dismissal for job-seeking conduct is unlikely to withstand legal scrutiny.

The decision in Lucchini South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2025] is a significant development in South African labour law and carries important implications for how employers draft contracts, manage retrenchments, and respond to resignations.

The Facts Behind the Dispute

The case concerned a senior SHERQ Manager who had been employed for less than six months. During his short tenure, the employer introduced short-time measures and initiated a section 189 retrenchment process. Faced with reduced earnings and growing uncertainty about his future, the employee reopened discussions with a direct competitor regarding potential employment.

When this came to the employer’s attention, the employee was charged with multiple allegations of misconduct and dismissed. The employer relied heavily on contractual provisions which it argued prohibited the employee from engaging with competitors while still employed.

The Central Question

At the heart of the matter was a critical legal question: can an employer lawfully prevent an employee, through contract, from seeking alternative employment during the employment relationship—and can doing so justify dismissal?

The Labour Court’s answer was unequivocal.

The Labour Court’s Finding: Public Policy Prevails

The Court held that contractual clauses which seek to prevent employees from pursuing alternative employment while still employed are unenforceable and contrary to public policy. Dismissal based on the breach of such a clause was therefore found to be substantively unfair.

Importantly, the Court rejected the argument that merely engaging in employment discussions with a competitor creates a conflict of interest. An employee does not act unlawfully by exploring other opportunities, provided they do not:

Solicit the employer’s clients
Disclose confidential information
Divert business or misuse company resources

The judgment is firmly grounded in section 22 of the Constitution, which protects every person’s right to choose their trade, occupation or profession freely. The Court made it clear that this right does not pause simply because an individual remains employed.

During Employment vs After Termination

A crucial distinction was drawn between during-employment restrictions and post-employment restraints. While reasonable post-termination restraints of trade may still be enforceable if they protect legitimate business interests, blanket prohibitions on job-seeking during employment are not.

The Court emphasised that employers are already protected during the employment relationship through existing duties of confidentiality, fidelity and good faith. Attempting to go further by restricting an employee’s right to seek security elsewhere crosses the line.

Disciplinary Charges Must Withstand Scrutiny

The Court was also critical of the additional misconduct charges brought against the employee, finding them to be largely pretextual. The timing of the disciplinary action—closely linked to the employee’s intention to resign—raised red flags.

Where disciplinary processes appear to be triggered by an employee’s job search rather than genuine misconduct, courts will interrogate the employer’s motive closely. “Trumped-up” charges are unlikely to survive scrutiny.

Why This Judgment Matters for Employers

This ruling sends a clear warning to employers who attempt to control employee mobility through overly broad contractual clauses or punitive discipline. Business interests can—and should—be protected, but only through lawful means.

Appropriate protections include:

Clear confidentiality obligations
Robust information security controls
Reasonable and enforceable post-employment restraints

What employers may not do is attempt to trap employees in unstable or uncertain employment by prohibiting them from exploring alternatives.

Key Takeaways for Businesses

Job-seeking is not misconduct: Even where discussions involve competitors.
Public policy limits contractual restrictions: Clauses banning job searches during employment are unenforceable.
Conflict of interest requires real prejudice: Mere negotiations are not enough.
Timing of discipline matters: Charges following resignation disclosures will be closely examined.
Use the right tools: Protect your business through lawful restraints and confidentiality—not overreach.

Final Thoughts

This judgment reinforces a fundamental principle of South African labour law: fairness and constitutional rights remain central, even in times of commercial pressure and workforce instability.

At HR Consult, we assist businesses with drafting enforceable contracts, managing retrenchment risks, and navigating resignations and competitive threats lawfully and strategically.

If you are unsure whether your employment contracts or disciplinary practices cross the line, our Labour Law team can help you assess and mitigate that risk before it becomes a dispute.

📌 HR Consult can help. Contact us for reliable labour law support and practical HR solutions.

Office: 012 997 0037

E-mail: info@hrconsultsa.co.za

Adapted by HR Consult, specialists in South African labour and employment law compliance.

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