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15 Indus. L.J. (Juta) 1365 (1994)
Marshall v Vistech Communications (PTY) Ltd

handle is hein.journals/iljuta15 and id is 1379 raw text is: MARSHALL v VISTECH COMMUNICATIONS (PTY) LTD INDUSTRIAL COURT 30 June; 18 August 1994 A PRETORIA Before BULBULIA, Deputy President Contract of employment- Repudiation-On grounds that restraint of trade B precluded employee from being engaged-Not an unfair labour practice. Restraint of trade-Precluding employer from employing employee-Repudia- tion of contract with employee-Not an unfair labour practice. Termination of employment-Repudiation of contract before commence- ment- On grounds that restraint of trade precluded employee from being C engaged-Not an unfair labour practice. After the applicant had signed a letter of employment with the respondent but before she could commence her duties, the respondent repudiated the contract between itself and the applicant. It did so after it came to light that D the applicant had signed a restraint of trade agreement with her previous employer which threatened to institute interdict proceedings to prevent the applicant from taking up employment with the respondent. At that stage the respondent had already been involved in costly litigation with the same employer over the employment of another of its former employees and had E paid a substantial amount in damages as part of a settlement agreement in that matter. In s 46(9) proceedings the applicant alleged that the respondent had wrongfully resiled from the employment contract before she could take up employment and that this breach of contract gave rise to an unfair labour practice. The court was satisfied that the applicant and the respondent had entered into a F valid employment contract. The court found that the repudiation of a valid employment contract by an employer before an employee commences his or her duties may constitute an unfair labour practice, provided the repudiation is capricious and without just cause. G The court found, however, that the respondent, in repudiating the employment contract, had not acted capriciously or unfairly because it had been precluded from employing the applicant by virtue of the restraint of trade agreement between her and her former employer. Furthermore, the respon- dent, in arriving at the decision not to take on the applicant in breach of a H contractual obligation to do so, had been entitled to take into account the serious risk of costly litigation between itself and a third party and to take steps to avoid such litigation. The court found, accordingly, that the respondent had not committed an unfair labour practice. It was open to the applicant to institute a civil claim for damages or apply for an order for specific performance against the respondent arising from the breach of contract in another forum, but she had no claim in the Industrial Court under the court's equitable jurisdiction. Application in terms of s 46(9) of the Labour Relations Act 28 of 1956. The facts appear from the reasons for judgment. J 1365

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