Mutual Termination Agreement South Africa

“The applicant must be bound. If the parties end a full resolution dispute, no one should be released seriously and voluntarily by a company. This is particularly true when, as here, the agreement was reached in favour of the party trying to escape the consequences of its own behaviour. Even if the clause that excludes access to justice was in itself invalid and unenforceable, the applicant must nevertheless fail. The reason is that he entered into an enforceable agreement that ultimately resolved his dispute with his employer.¬†These agreements are fully and definitively concluded. This means that a worker renounces his rights when he goes to the courts, courts such as the CCMA, etc., with respect to the alleged irregularities resulting from the employment relationship. The company also waives the rights or rights of such an employee. That the applicant was “involved in a completely masterish deception and misrepresentation”, that he himself admitted to having no defence, and that he then “entered into a final agreement to bring to bed a current dispute” and “knowingly” did so. In addition, the applicant intended (within the meaning of the agreement) to separate from Reckitt (his former employer) on final terms that also protected him from further action by Reckitt. Such a finality “involved an agreement that the courts should not be associated”; Reciprocal separation is not the same as dismissal or reduction Avoid leaving redundancy strategies and procedures to those who are not fully aware of labour law.

The employee then appealed the case and went to the Labour Court of Appeal (“LAC”). In reviewing the validity of the agreement, the LAC found that, in the case of Gbenga-Oluwatoye/Reckitt Benckiser South Africa (Pty) Limited and Another (JA 95-2014) [2016] ZALAC 2 (February 3, 2016), the Labour Appeals Tribunal reviewed the validity of mutual separation agreements in South Africa. The question then is whether a mutual separation agreement can be cancelled when a worker feels that he or she has been treated unfairly. The simple answer is no. Mutual separation agreements continue to engage the worker, regardless of the regrets he may feel when signing the contract. The employer believes that the worker and another person in the organization are incompatible and that an amicable separation would be preferable; In this case, a separation agreement was reached between the parties, which “acquires in full and definitively all claims of any kind, but which arise between the parties.” The worker also acknowledged in the agreement that he had accepted the agreement without undue coercion or influence and that he had voluntarily and unconditionally waived his right to severance pay and his right to go to any competent authority, including the CCMA and/or the labour tribunal, to obtain remedies arising from the agreement against his employer. Given that the issues of termination are important, employers are cautioned not only to formulate their mutual redundancy documents in order to make it clear that dismissal is not a dismissal, but also to register their reduction consultations to ensure that they are able to prove to the courts what has actually been said and what has not been said.

Fotos: Kathrin Leisch
Impressum | AGB