My current letter of employment includes a restraint of trade clause.My company is moving from Randburg to Linbro Park and I do not want the extra expense and incionvenience of moving to Linbro Park s I am looking for anothetr job.I have been for an interview with a competitor company but they are afraid to employ me because of this "restraint of trade" clause. Can they take legal action against me ?????Your opinion would be greatly appreciated.Andrea XXXXXXXXXX
Nothing. But I am scared of being sued if I go to a competitor company.
Good day. This is an info request to assist you better. Please continue on this thread.Have you been retrenched by your previous company?
No, but most people have left the company based in Lazer Park as no one wants to travel to Heriotdale or Linbro Park which are the two alternative places of employment. They have poffered me another position but said I can have time off to look for aniother job so I am feeling very insecure.
At an interview this morning, my prospective employer was worried that he would get into trouble as the job is in the same (catering) industry and I have this restraint of trade clause in my current contract.I now feel locked-in but also very insecure as I could face retrenchment....where do I stand ?
Did your current company indicate that they will enforce the restraint of trade? Clearly, if they have given you an opportunity to find another job, the possibility exist that they will not enforce the clause?
I have not asked them yet as I am afraid it may stir up a horets nest when they gfind out where I am going as it is a competitor company.
Generally a speaking, a contract of restraint of trade will, in the absence of factors like fraud and duress, be enforceable even if its terms are unreasonable or unconscionable. Since it is not the function of the court to remake the contract, it will not relieve one party from any term which he or she finds onerous or unexpectedly harsh. But an agreement in restraint of trade may, on the ground of public policy, be unenforceable.The onus of proving that a restraint of trade is contrary to the public interest and hence unenforceable rests upon the opponent to the restraint. This burden of proof is not easily discharged. In deciding whether or not a contract in restraint of trade is contrary to the public interest, regard should be had to two considerations: agreements freely concluded should be honored, and everyone should be free to enter the business or professional world. An unreasonable restraint of trade between parties would in general probably also be contrary to the public interest. On the other hand, a restraint which is reasonable between parties might nevertheless, for a reason not peculiar to the parties, be in conflict with the public interest, and possibly also vice versa. Reasonableness is first of all determined with reference to the protectable proprietary interest(s) of the party in whose favour the restraint operates, which interest must have been infringed (actually, or there must at least have been a likelihood of or potential infringement). This interest should then (qualitatively and quantitatively) be weighed up against the interest of the other party (to be economically active and productive). If the latter interest surpasses the former interest, the restraint would as a rule be unreasonable and accordingly unenforceable. An important guideline in the weighing-up process is that the restraint should, as far as activities, area and duration are concerned, be necessary to protect the infringed or threatened interest. Other factors that may also play a part in judging the question of reasonableness, are facets of the public interest which have nothing to do with the relationship between the parties but may nevertheless require that the restraint should (or should not) be maintained, the inequality of bargaining power between the parties, the parties’ own view as to the reasonableness of the restraint, as well as the values underpinning the Constitution. The court will have regard to all the circumstances obtaining at the time when it is asked to enforce the agreement (and not when the agreement was concluded). The court is not limited to a finding in regard to the contract in restraint of trade as a whole, but may declare the contract partially enforceable or unenforceable. The party seeking partial enforcement must establish a proper basis for such enforcement. In determining whether partial enforcement is justified, the court may take into consideration matters such as whether the restraint was unduly oppressive or designed to terrorize, and whether partial enforcement would not operate too harshly or unfairly towards the party bound by the restraint. An unreasonable restraint will not be partially enforced if it would require major plastic surgery, in the form of a drastic re-casting of its provisions, to make it reasonable. The court is therefore not obliged in all cases to whittle down an unreasonable restraint of trade until it eventually becomes reasonable. Normally, where employment agreements is terminate by the employer, or where the termination is not the fault of the employee, a court will deem it contrary to the public interest that such a clause may be invoked. So, although nothing can prevent your employer from suing, chances are that they will not be able to enforce this clause under these circumstances.
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