The Labour Court held that the former employees and their new employer had breached a restraint of trade order and that the breaches were willful and contemptible.  The one former employee was incarcerated for 30 days, but the order was suspended until 30 April 2016, being the expiry date of the restraint, on condition that she is not found to be in contempt of court again.  The new employer was ordered to pay a fine of R30 000 subject to the same condition.  The former employee and the new employer were ordered to pay the applicant’s costs, jointly and severally, the one paying, the other to be absolved.

Orthocraft (Pty) t/a Advanced Hair Studios v AM (J1636/15) [2016] ZALCJHB 12 (14 January 2016) per Steenkamp J.

Contempt requirements

Steenkamp J referred to the requirements for an order to be granted in civil contempt proceedings,  eloquently summarised by Cameron JA in Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para [42]:

“To sum up:

  1. The civil contempt procedure is a valuable and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.

  2. The respondent in such proceedings is not an ‘accused person’, but is entitled to analogous protections as are appropriate to motion proceedings.

  3. In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.

  4. But once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.

  5. A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities”.

Comment:

It is striking that Cameron JA [as he then was] went out of his way to confirm that the person alleged to be in contempt must not be regarded as ‘an accused person’.  This sends a strong message to senior managers not to treat any employees as ‘accused persons’ when enforcing discipline.  Once again it is necessary to repeat that management is entitled to protect its business operations and should not even contemplate trying to punish employees.

As has been repeatedly pointed out when disciplining employees senior managers also need to distinguish between the employees as persons and their behaviour.  The fact that an employee misbehaves does not automatically mean that the employee deserves to be dismissed.  Whilst it may be a valid reason to dismiss it may well be an unfair reason if the incident does not in fact destroy or seriously damage the relationship of trust and confidence.  It is here where account has to be taken of the various factors, including the employee’s character and employment history.

This approach was clearly expressed by Rabkin-Naicker J.in a recent Labour Court judgment: see Tasting policy: Unfair dismissal despite valid reason concerning Pick ‘n Pay Retailers (Pty) Ltd v CCMA  (C1083/14) [2015] ZALCCT 73 (3 December 2015).