EMPLOYEE DISMISSED FOR JOB HUNTING

A Dismissal Born of Suspicion, Not Misconduct

When Vishen Mahabeer joined Lucchini South Africa (Pty) Ltd in January 2021 as its Safety, Health, Risk and Quality Manager, the relationship was meant to be a long-term one. Instead, it unravelled in less than six months, ending not with a resignation, but with a dismissal that would later be described by the Labour Court as desperate, contrived, and vengeful.

Lucchini was already under pressure. Shortly after Mahabeer’s appointment, the company introduced short time and embarked on a section 189 retrenchment process. Facing financial uncertainty and reduced income, Mahabeer began reconsidering his future. He reopened discussions with Cast Products, a competitor he had previously approached before joining Lucchini.

That decision proved to be the turning point.
Once Mahabeer indicated that he intended to resign and accept employment elsewhere, the employment relationship shifted dramatically. He was placed on precautionary suspension and, soon after, charged with a litany of misconduct allegations—five in total. Each charge, though framed differently, was tied to one underlying grievance: Lucchini’s belief that Mahabeer had betrayed it by looking for “greener pastures”.

The disciplinary hearing took place in June 2021. Mahabeer was dismissed with immediate effect. His internal appeal failed. With little choice, he referred an unfair dismissal dispute to the CCMA.

The CCMA Sees Through the Charges

At arbitration, Mahabeer represented himself. Lucchini called three senior witnesses. The commissioner was confronted with five charges that, taken together, painted Mahabeer as dishonest, disloyal, insubordinate, and untrustworthy.
But when the evidence was examined carefully, that picture began to fade.
The commissioner found that Mahabeer had not breached his contract by seeking employment with a competitor. A clause purporting to prohibit an employee from even preparing to seek alternative employment was, in substance, unenforceable and contrary to public policy. Employees are not indentured to their employers, particularly when their salaries are reduced and retrenchments loom.

Nor did the commissioner accept that Mahabeer had attempted to extort Lucchini by raising intellectual property concerns during settlement negotiations. Hard bargaining, even uncomfortable bargaining, is not misconduct.

The allegation that Mahabeer acted dishonestly during retrenchment consultations by failing to disclose his job search also failed. An employee has no obligation to announce future employment intentions during a consultation process, particularly when seeking alternative work is lawful.

The accusation of gross insubordination—based on his refusal to provide a laptop password—likewise fell short. The password was self-created, IT access remained possible, and the instruction was not issued by someone in a clear position of authority over him.

Finally, the relocation allowance charge collapsed under scrutiny. The evidence showed that the R20 000 payment was intended to allow Mahabeer to purchase new items rather than move furniture, and there was no requirement that he purchase property or enter into a long-term lease. He lived in Gauteng. Lucchini knew where he lived. No concern had been raised—until he decided to leave.

The commissioner concluded that the charges were trumped up, motivated not by misconduct but by Lucchini’s desire to remove an employee who had chosen to exit.
The dismissal was substantively unfair. Mahabeer was awarded the maximum compensation of twelve months’ salary.

The Review: An Appeal in Disguise

Lucchini was not prepared to accept that outcome. It approached the Labour Court, seeking to overturn both the finding of unfair dismissal and the compensation award.

The Court was unmoved by the attempt to re-argue the merits.

Again and again, Lucchini framed its complaints as “reviewable irregularities”. In truth, the Court found, it was simply dissatisfied with the commissioner’s conclusions. That is not enough. Review is not appeal, and the test is not whether the Court would have decided differently, but whether the outcome falls outside the bounds of reasonableness.

On each of the five charges, the Court found that the commissioner’s conclusions were not only reasonable but correct. An employer cannot lawfully prevent employees from seeking alternative employment. Negotiating a settlement is not extortion. Silence about future job prospects is not dishonesty. A refusal to hand over a personal password is not automatically insubordination. And a relocation allowance does not entitle an employer to dictate how an employee lives.

The Court went further. It agreed with the commissioner’s broader assessment that Lucchini, once faced with Mahabeer’s resignation, “was desperate to get rid of him” and manufactured misconduct to achieve that end.

On substantive fairness, the review failed entirely.

But Compensation Is Another Matter

There was, however, one issue that troubled the Court.

The commissioner had recorded that Mahabeer was unemployed at the time of arbitration. That was incorrect. Mahabeer had secured new employment within three months of his dismissal.
This factual error mattered.

While compensation for unfair dismissal is not strictly limited to actual financial loss—and may include a solatium for humiliation and indignity—it must still be just and equitable. The mistaken belief that Mahabeer remained unemployed clearly influenced the decision to award the maximum twelve months’ compensation.
That error justified limited interference.

Taking into account that Mahabeer had done nothing unlawful, that he had been suspended and publicly accused of serious misconduct, that the charges were contrived, and that the dismissal caused humiliation and distress—but also recognising that his financial loss was relatively short-lived—the Court reduced the compensation to six months’ salary.

This, the Court held, struck the proper balance between acknowledging harm and avoiding punishment.

The Final Word

Lucchini succeeded only in reducing the compensation. On everything else, it failed.
Because the review was largely an attempt to appeal an arbitration award under the guise of section 145, and because Mahabeer was forced to incur significant costs defending a fundamentally sound award, the Court ordered Lucchini to pay his legal costs.

In the end, the story was not one of employee misconduct, but of an employer unwilling to accept an employee’s lawful decision to leave—and prepared to dress that decision up as discipline.
The Labour Court was not persuaded.