Good MorningMy previous employer we will...

Asked by Vernon Swart on 27-03-2023 12:25:27
Question posted in the General Law category relating to Mpumalanga

Good Morning

My previous employer we will call Company A. An Engineering design firm primarily related to structural, mechanical and civil design. I was a design draughtsman for them.

I received an offer from Company C which is in a completely different industry. So due to verbal abuse, working up to 80 hours overtime a month, being punished for small things going wrong, as well as not taking lunch breaks in 6 years due to it being frowned upon by the owner, I decided to take the offer at Company C. Just a side note, the company A owner is a workaholic and if anything didn't go his way, he would "flip his lid". Since January 9th, 5 people, out of a company of 9 permanent employees, have resigned from the business due to being mistreated and overworked. One of them has even been withheld his overtime pay of at least 50 hours for mistakes that were made.

I had a restraint of trade for 12 months with my previous employer (Company A) that i may not work for any of his clients for a period of 12 months after resigning. However, there is nothing unique about the work that we did. It was all common practice in the industry and very generally accepted knowledge and processes. Thus i do not posses anything that gave Company A a leading edge in the market. There were a few small designs which they did which are unique to them but also designs that could not be patented due to them being readily available in the market but i signed an NDA to not talk about it with anyone which is acceptable. It is not anything i can use in future anyway.

A few weeks after starting at Company C, I was contacted and offered a position at a third company (Company B) which is one of Company A's former clients. When these clients had heard that i had resigned, they immediately contacted me due to my in depth knowledge of their company and operations. We had worked well together and they feel that i would be a valuable asset to their company. Due to Company A's owner's behavior and being so unprofessional, Company B refused to send any more work to them before i had even resigned. So effectively they were no longer a client.

Due to the wording in the document i personally feel that this point is null and void because they are no longer a client. It states as follows:

25.1. The employee will not during the period of employment with either the Company and for a period of 1 (one) year after the termination of employment, or on behalf of another Company or either for himself/herself, do business with or become employed by any other business undertaking which directly or indirectly trades or carries on business in competition with the business carried out by the Company, or any of the Company’s clients or customers.

The Company B CEO contacted my former employer and requested that they do not pursue any legal action against me to which he initially agreed verbally over the phone. Then a few hours later he sent a message to Company B CEO and said he doesn't think he can allow it and must take time to think about it. After the weekend, he changed his mind and said he will pursue legal action against me. However i feel that due to the lack of uniqueness of the business and the fact that Company B (who wishes to employ me) is no longer a client, that he will lose the case if he takes legal action against me.

Company C made me a good offer which Company B has said they will definitely beat and increase the offer. I feel that basically due to spite, Company A wont let me improve on my working conditions and improve on my salary which is potentially holding me back. If i have to wait until January 2024, i will most likely have lost the offer completely.

Any advice would be appreciated and if you could also advise on what the probability is of Company A winning the case would be.

Thank you

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