Restraint of trade: Fair or not?

Employers often elect to enforce the provisions of a restraint of trade clause incorporated in contracts of employment of former employees who act in breach of such an agreement. A restraint of trade clause is in principle valid and the party seeking to avoid the restraint [the employee] bears the onus of proving that the restraint was unreasonable, contrary to public policy and therefore not deserving of enforcement. This test, in effect, made it easier for an employer to enforce the restraint of trade provisions as long as they were reasonable.

In the context of the constitutional right freely to choose one`s trade, occupation or profession and the right to dignity, courts are now deciding that the employer bears the onus to prove the reasonableness of the restraints in question.

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