Garden Leave Meaning & Policy in South Africa

Garden leave is a practice where a senior employee leaving a job is restricted to looking for opportunities in the marketplace. In return, the employer is subjected to pay the employee full salary during the notice period. Here is all you need to know about the conditions and applicability of garden leave in South Africa.

Garden Leave in South Africa

In South Africa, the labor courts have not provided a clear ruling, rather referring that if an employee gives notice of their resignation, the employer may ask the employee to spend the entire notice period or part of it at home. It will allow confidential information to which the employee had access to keep out of the competitor’s reach. However, the choice of a gardening leave solely depends on the employee.

The aim of gardening leave is to keep the employees out of the job market long enough, so the company can protect its confidential and proprietary information. During the leave period, the employment contract continues to exist and both parties are expected to comply with its terms and conditions. Here are some expectations from both parties in the gardening leave arrangement.

• The employer is required to pay the employee his/ her full salary along with contractual benefits during the notice period.
• The employee is required to be available throughout the notice period for any adjustment the employer demands. They must not also look for employment opportunities in the marketplace.

Advantages of Gardening Leave

• The advantage of such leave for the employer would be that it would keep the employee commercially inactive in the labor market.
• Plus, it ensures a smooth handover process, as the employee is required to be available throughout the leave period.
• It makes sure that the employees are bound by the contract and will keep confidentiality intact during the notice period.
• Such an arrangement prevents the employees from misusing the data they receive from the employer.
• This arrangement protects the goodwill of the company.

Disadvantages of Gardening Leave

• One disadvantage of garden leave for employers is that they are subjected to pay the full remuneration to the employee during the entire notice period.
• In some cases, the employee may also feel forced to give up and claim constructive dismissal.
• There is no guarantee that things will go smoothly. The chances of breaching the contract from both sides are extremely high.

Applicability of Gardening Leave

In consideration of the applicability of the gardening leave in South Africa, the Mr. Motsa Case is by far the most popular. Godfrey Mr. Motsa was appointed as a chief officer business unit at Vodacom with a written contract of employment, concluded in June 2015. His contract has a six-month notice period with a provision for gardening leave, under which he was also bound by the restraint of trade for six months, following the end of his employment.

In December 2015, Mr. Motsa resigned from his position. It was also observed that Mr Motsa has been communicating with MTN for employment, which would come into effect from January 2016. Given the situation, Vodacom communicated to Mr Motsa that he would be placed on gardening leave for a period of six months up until 23 June 2016.

However, Mr Motsa alleged that Vodacom had already waived its right to garden leave during the notice period. In this regard, he signified an internal communique, stating a condition for “leaving with immediate effect.” During this time, Mr. Motsa had access to important Vodacom confidential information, which may have had a useful lifespan of a year or more.

In such a condition where the employee breaches the conditions of the employment agreement, especially regarding the notice period, the employer has the right to enforce the contract or sue the employee for damages. However, even in such a situation, there is no reason why the company may not award the employee on specific performance.

Restraint of Trade

The restraint of trade usually refers to a clause in a contract that restricts a person’s right to carry on their profession in the job market. Referring to the Mr. Motsa case, the employee argued that if the court decision should be taken to extend the notice period till June 2016, any confidential information held by him would be sterilized during the six months of the garden period. Hence, the clause asking for restraint of trade is not justified.

However, Vodacom requested the court to enforce both the sterilization period as well as restraint period, and there is no basis on which it would be called unreasonable. After giving due consideration, the Labor court decided that Mr. Motsa to service both periods, as he had access to significant proprietary and confidential information. Moreover, Vodacom clearly had a proprietary interest worthy of a protection clause for over one year in the contract.

FAQs

In conclusion, gardening leave is a business strategy for companies to protect their interests when an employee is ending his/ her employment contract. I hope this article was helpful in learning more about your garden leave.