So long, and thanks for all the business
By Amien Hoosain
In ABSA Insurance and Financial Advisors v Jonker, a decision of the Labour Court, Cape Town on 17 November 2017, the employer endeavoured to enforce restraints of trade despite the employment agreements not containing express restraint provisions.
Mr and Mrs Jonker were both employed by ABSA as financial advisers in Robertson. Mr Jonker retired and Mrs Jonker resigned from ABSA; and both of them took up employment with Momentum. News of this “spread like wildfire” in the small community, and the Jonkers’ clients followed them to Momentum in droves, despite ABSA’s efforts to retain the clients.
ABSA was aggrieved, and brought an urgent application against the Jonkers. ABSA had a “shotgun” approach, and claimed many things against the Jonkers, but the two main claims were for orders:
- – compelling the Jonkers to return ABSA’s confidential information, and to delete confidential information from their electronic devices; and
- – interdicting and restraining the Jonkers from contacting ABSA’s clients, and from taking up employment in competition with ABSA.
As the Jonkers had in fact dutifully returned ABSA’s confidential information, and deleted confidential information from their electronic devices, the first claim failed.
As the Jonkers were not bound by restraints of trade, ABSA based the second claim on unlawful competition. However, on the facts, the Jonkers were not using ABSA’s confidential information to attract clients, the clients were contacting the Jonkers (unhappiness with the ABSA call centre was a main reason for this). So the second claim also failed.
The judge quoted from an old UK case:
“It is settled law that a servant, having left his master’s service, may, without fear of legal consequences, canvass for the custom of his late master’s customers, whose names and addresses he has learned during the period of his service, so long as he does not take a list of them away with him.”