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admin | Category: Male Dysfunction Treatment 2016 | 15.08.2014
Chicago Botanic Garden Healthcare Garden Design Certificate Program – There’s still time to register! I ripped into my zucchini bed last week when my elderly friend Lauris visited for an inspection and rolled her eyes at the enormous zucchini jungle. I've planted broadbeans and climbing beans and I have to get some autumn type veg into seed trays soon.
I've learnt that green capsicums and red capsicums are the very same plant, you just have to wait wait wait for them to turn red!! Based at the Royal Hospital Chelsea, home of the Chelsea Pensioners, the charity Gardening Leave wanted to provide an area for veterans to find to tranquility. The South African Labour Courts have, until now, not had the opportunity to consider what impact, if any, a so-called “gardening leave” provision may have on the enforceability of a restraint of trade. As a general principle, an employee does not have a right to work (with some exception) and the employer therefore does not breach the contract of employment if it does not provide work to the employee.
Vodacom sought to enforce Mr Motsa’s six-month notice period, and expressly communicated to him that he would be placed on gardening leave until the termination of his notice period on 23 June 2016.
Mr Motsa had access to significant confidential and proprietary information relating to Vodacom’s business and such information had a useful life span of more than one year in some instances. Van Niekerk J first dealt with the issue of the enforcement of Mr Motsa’s contract of employment insofar as his notice period was concerned. Mr Motsa furthermore argued that even if the Labour Court were to enforce his notice period and find that his engagement with MTN constituted a breach of his restraint undertakings, Vodacom should not be entitled to enforce his restraint undertakings for a further period of six months after the termination of the employment relationship on 23 June 2016.
Van Niekerk J concluded that the Labour Court was entitled to have regard to both the gardening leave sterilisation period and the restraint period in determining the reasonableness and necessity of the restraint period. The Labour Court held that Mr Motsa had access to significant confidential and proprietary information and that Vodacom clearly had a proprietary interest worthy of protection (for a period exceeding one year).

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The term “gardening leave” arises from this general principle and refers to an employer’s legal right to require (usually senior) employees not to report for duty during the notice period, but where the employee is still entitled to his or her full benefits during the period of gardening leave. With effect from 1 April 2015, he was appointed as Vodacom’s Chief Officer: Consumer Business Unit in terms of a written contract of employment concluded in June 2015. It also contained a gardening leave provision, which entitled Vodacom to require him not to report for duty during his notice period. Importantly, the day prior to his resignation, it came to Vodacom’s attention that Mr Motsa had apparently been engaged in discussions with MTN to commence employment with it, with effect from 1 January 2016. Mr Motsa, however, alleged that Vodacom had waived its right to enforce his notice period and was now estopped from seeking to enforce it. Ordinarily, where an employee breaches his employment contract insofar as notice is concerned, an employer would be entitled to enforce the contract (i.e. It was argued on behalf of Mr Motsa that any confidential and proprietary information held by him would effectively be sterilised during the gardening leave period, and that it would therefore be unreasonable to also enforce his restraint for a further period of six months after 23 June 2016. The Labour Court held that there is no reason why a different approach ought to be adopted in South Africa. On such basis, the Labour Court enforced Mr Motsa’s restraint undertakings, in addition to, and notwithstanding, the six-month gardening leave period. He specialises in all aspects of employment law with particular emphasis on integrated employment solutions and global mobility, executive terminations, restructuring and retrenchments, employment equity and unfair discrimination, collective bargaining, employment related pension law matters, the drafting and enforcement of restraint of trade agreements and the law relating to confidentiality and privacy. She specialises in advising clients on their obligations in terms of all employment legislation (including the Labour Relations Act, the Basic Conditions of Employment Act and the Employment Equity Act) and on all employment law related issues such as dismissals, unfair labour practices, unfair discrimination, retrenchments (including large scale retrenchments), restructuring, transfers of employment in terms of section 197, changes to terms and conditions of employment and collective bargaining.
Gardening leave clauses are often inserted into the contracts of employment of senior employees, with the aim of “sterilising” the confidential and proprietary information held by them, and to prevent such employees from immediately taking up employment with competitors and utilising such confidential and proprietary information to unfairly compete with their erstwhile employers.

In this regard, Mr Motsa sought to rely on an internal communique issued to Vodacom’s employees, which stated that he was “leaving with immediate effect”.
Vodacom, on the other hand, argued that both the period of gardening leave and the post-termination restraint should be enforced and that there was no basis on which it could be said that this is unreasonable, having regard to the nature of the information Mr Motsa had access to. Veterans returning from Iraq and Afghanistan are experiencing high rates of post-traumatic stress disorder, or PTSD. The Labour Court was also called upon to pronounce on the issue of whether specific performance is an appropriate remedy given the personal nature of an employment contract. Mr Motsa argued that, given the personal nature of an employment contract, specific performance is not an appropriate remedy even if the Labour Court finds that he breached his notice obligations (which is denied).
Horticultural and animal-assisted therapy have both been found to be very helpful for people with PTSD, and in Scotland, one charity is addressing the issue in a very thoughtful and pragmatic way.
Van Niekerk J held that Mr Motsa had failed to discharge the onus of proving that Vodacom had elected to waive its right to enforce his notice period in terms of his contract of employment.
Someone who you invite for coffee who just wants to poke around your pots and beds and see what you're growing and talk about how do you control cabbage moth organically? The Labour Court held that, in such circumstances, there is no reason why specific performance should not be awarded. The Labour Court accordingly held that Mr Motsa remains an employee of Vodacom until the end of his notice period on 23 June 2016.

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