{"id":14061,"date":"2012-05-31T13:59:50","date_gmt":"2012-05-31T11:59:50","guid":{"rendered":"http:\/\/businesstech.co.za\/news\/?p=14061"},"modified":"2012-06-01T11:28:46","modified_gmt":"2012-06-01T09:28:46","slug":"linkedin-used-as-court-proof-in-company-dispute","status":"publish","type":"post","link":"https:\/\/businesstech.co.za\/news\/government\/14061\/linkedin-used-as-court-proof-in-company-dispute\/","title":{"rendered":"LinkedIn used as proof in court dispute"},"content":{"rendered":"

Law firm, Cliffe Dekker Hofmeyr<\/a> says that the South Gauteng High Court had no hesitation in relying on information posted on an ex-employee\u2019s LinkedIn account in confirming that he fostered a relationship with his previous employer\u2019s clients.<\/p>\n

Johan Botes<\/a>, employment director at Cliffe Dekker Hofmeyr noted that the case serves as another reminder of the unintended consequences and perils of posting information on social networking platforms like Facebook<\/a>, Twitter<\/a> and LinkedIn<\/a>.<\/p>\n

\u201cIn Experia South Africa v Haynes and another, the employee\u2019s previous employer sought to hold him to a restraint of trade agreement. In terms of this agreement, the employee was prohibited from taking up employment with a competitor for a period of 12 months after termination of employment,\u201d Botes said.<\/p>\n

\u201cIt was not in dispute that the employee then indeed took up employment with a competitor during this restraint period. The employee sought to assail the agreement by claiming inter alia that that he signed the agreement under duress, the agreement was unfair, that the agreement is against the provisions of section 197 of the Labour Relations Act 66 of 1995 (LRA) and that there was no protectable interest the previous employer could enforce,\u201d he explained.<\/p>\n

According to Cliffe Dekker Hofmeyr, the court made short shrift of the arguments advanced on behalf of the employee. \u201cIt confirmed that hard bargaining by parties, even where the power relationship is unequal, does not mean that the agreement was concluded under duress. It held further that their agreement was not unfair \u2026\u2026.\u201d<\/p>\n

Botes explained that in terms of section 197 of the LRA, employees transfer on their existing terms and conditions of employment (or similar terms) from the old to the new employer when there is a transfer of a business as a going concern.<\/p>\n

The legal expert added that in the case of the employee, his services were transferred to his ex-employer when the latter acquired that business. Turning to the facts of the restraint, the employee argued that he should not be held to the terms of the restraint of trade as his (now) ex-employer got him to sign the restraint of trade agreement after he had transferred from the old employer to the new employer in terms of section 197.<\/p>\n

He argued that he should have been transferred on his existing terms and that the new agreement was thus invalid.<\/p>\n

Cliffe Dekker Hofmeyr said that the court confirmed that section 197 does not prevent the new employer and transferred employee from entering into a new employment contract or any other agreement. This was indeed what happened when the employer presented the employee with a restraint of trade agreement that he was expected to sign. By entering into this agreement \u201c\u2026 consensually and voluntarily, without demur \u2026\u201d the court rejected his pleas not to be held to the restraint of trade agreement.<\/p>\n

Linked into social media<\/strong><\/p>\n

\u201cIt was, though, the employee\u2019s status on LinkedIn that assisted in swaying the court that the restraint of trade agreement ought to be enforced against him,\u201d Botes said, adding that the court had regard to meetings evidenced by the information available on LinkedIn to conclude that the employee indeed had contact with key clients of his erstwhile employer. In this regard, Judge Mbha stated: \u00a0\u201cHis conduct in my view, affirms the necessity for the restraint which the applicant seeks to enforce,\u201d Botes said.<\/p>\n

\u201cThe judge further had regard for the employee\u2019s LinkedIn profile in concluding that his previous employer indeed had an interest in seeking to restrain him from competing with it. The employee argued that his position did not afford him access to customer connections and confidential information, the lawyer added.<\/p>\n

The judge stated as follows: \u201cOne only has to have regard to his Curriculum Vitae which appears in his LinkedIn profile to conclude that first respondent was a senior employee who was steeped in the business of the applicant and was privy to and possessed of its confidential information and customer connections.\u201d<\/p>\n

Botes said this case again shows that social networks are a mine of information for litigants and web-surfers. Employees, in particular, should be exercise extreme caution in posting information that could have a negative effect on the relationship with their employer.<\/p>\n

\u201cWe see a growing trend of social network-related disputes that covers the entire span of the employment relationship. More employers are using information posted by job applicants on social network platforms when making decisions about hiring staff.<\/p>\n

\u201cEmployers are also wising up to the reality that they may take disciplinary action against employees posting negative remarks about their employer, managers or clients. This case now shows us that employers can also use online information to take action against previous employees,\u201d Botes said.<\/p>\n

Related articles<\/strong><\/p>\n

SA law protects against employer Facebook prying<\/strong><\/a><\/p>\n

Can open social access actually benefit business?<\/strong><\/a><\/p>\n

The 4 Cs of business security<\/strong><\/a><\/p>\n

A history of social networks<\/strong><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

South Gauteng High Court had no hesitation in relying on information posted on an ex-employee\u2019s LinkedIn account in confirming that he fostered a relationship with his previous employer’s clients.<\/p>\n","protected":false},"author":9,"featured_media":14125,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[1523,45,26,2975,2976,93],"class_list":["post-14061","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government","tag-cliffe-dekker-hofmeyr","tag-facebook","tag-headline","tag-linked-in","tag-south-gauteng-high-court","tag-twitter"],"_links":{"self":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/14061","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/users\/9"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/comments?post=14061"}],"version-history":[{"count":9,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/14061\/revisions"}],"predecessor-version":[{"id":14127,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/14061\/revisions\/14127"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media\/14125"}],"wp:attachment":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media?parent=14061"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/categories?post=14061"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/tags?post=14061"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}