🚪 Job Hunting While Employed: Courts Say It’s Not Automatically Misconduct

 🚪 Job Hunting While Employed: Courts Say It’s Not Automatically Misconduct

Introduction In 2026, South African Labour Court and CCMA rulings have once again reminded employers that employees are entitled to seek alternative employment while still employed. Updating a CV, attending interviews, or even speaking to competitors is not misconduct in itself.

The law draws a sharp distinction between lawful job hunting and actual misconduct. Unless there is dishonesty, disclosure of confidential information, or demonstrable prejudice to the business, disciplinary action will not survive scrutiny at the CCMA or Labour Court.

⚖️ General Guidance from the Courts (2025–2026)

• Restraint clauses that attempt to prevent employees from exploring opportunities are contrary to public policy. They infringe on the constitutional right to seek employment and improve one’s livelihood.

• Dismissals based only on job hunting are substantively unfair.

• Employers must prove actual prejudice — such as disclosure of trade secrets, breach of fiduciary duty, or reputational harm.

• Commissioners and judges look for aggravating facts: dishonesty, conflict of interest, or operational disruption.

📚 Case Study 1: Mokoena v SteelTech Manufacturing (CCMA, 2026)

• Facts: Mokoena, a production supervisor, applied for new roles and attended interviews while on approved annual leave. His employer dismissed him for “disloyalty,” arguing that seeking other work undermined trust.

• CCMA finding: The dismissal was unfair. The commissioner emphasized that taking leave to attend interviews is lawful and does not amount to misconduct.

• Key reasoning:

  • No dishonesty (he applied for leave openly).

  • No disclosure of confidential information.

  • No operational prejudice (his absence was planned and covered).

• Outcome: Reinstatement with partial back pay.

• Lesson: Job hunting during leave is not misconduct. Employers must show actual harm, not just suspicion.

📚 Case Study 2: Naidoo v FinServe Consulting (Labour Court, 2026)

• Facts: Naidoo, a senior analyst, applied to a direct competitor and shared her client portfolio during the interview process. The employer dismissed her for breach of trust and confidentiality.

• Court finding: The dismissal was upheld. The judge ruled that while job hunting is lawful, sharing confidential client data created actual prejudice and breached fiduciary duty.

• Key reasoning:

  • Disclosure of sensitive information.

  • Conflict of interest (competitor relationship).

  • Breach of confidentiality clause in contract.

• Outcome: Dismissal confirmed as substantively fair.

• Lesson: Job hunting is fine — but crossing into disclosure of confidential information is misconduct.

🔎 Aggravating Facts the CCMA/Labour Court Look For

When employers discipline someone for job hunting, commissioners and judges ask:

• Was confidential information disclosed (client lists, pricing, trade secrets)?

• Was there dishonesty (false sick leave, misrepresentation)?

• Was there a conflict of interest (working for or negotiating with competitors in a way that undermines current duties)?

• Was there operational prejudice (job hunting during critical work hours, missing deadlines)?

• Did the employee breach fiduciary duty (especially senior staff using their position to benefit a competitor)?

Without these aggravating facts, disciplinary action almost always fails.

💡 Why Employers Should Think Twice

Employment litigation is expensive — not only in legal spend, but also in management time, operational distraction, and years of uncertainty. Before escalating a matter, employers should critically assess:

• Prospects of success: Is there evidence of misconduct beyond job hunting?

• Procedural risk: Were fair processes followed?

• Commercial cost: Will litigation cost more than the alleged harm?

• Business sense: Does pursuing the case align with operational priorities?

📌 The Takeaway

• Mokoena’s case: Job hunting + leave taken = lawful, dismissal unfair.

• Naidoo’s case: Job hunting + disclosure of confidential data = misconduct, dismissal fair.

👉 Lesson for employers: Job hunting is not misconduct. Misusing confidential information or creating actual prejudice is. Knowing the difference saves both money and reputation.

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