These agreements are in full and final settlement. This means that an employee waives his or her right to appeal to the courts, tribunals such as the CCMA, etc. with respect to alleged deficiencies arising from the employment relationship. The Company also waives any right or claim against such employee. Whether such a waiver of another right (or right of access to a court) is contrary to public policy and therefore unlawful (unenforceable) has been examined by the South African Constitutional Court. In the recent judgment of the Constitutional Court [CC] gbenga-oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another  ZACC 33 (hereinafter «Reckitt»), this question was put to the Central Committee for decision. Reckitt`s facts are as follows: the applicant, Mr Gbenga-Oluwatoye (former employee), concluded a settlement agreement, that is to say. a mutual termination agreement following allegations he has admitted, false statements to his employer. Presumably, in order to avoid the longevity (among other things) of an internal investigation/labour dispute, etc., the parties have entered into a mutual termination agreement. One of the conditions of the agreement was that the claimant waive any recourse to the Conciliation, Mediation and Arbitration Commission (CCMA), the Labour Court or any other competent authority. After his conclusion, the applicant lodged an appeal with the Labour Court, arguing, inter alia, that his waiver of the right of subsequent appeal or the right of access to the court was contrary to public policy (contra bonos mores). He was unsuccessful before the Labour Court and appealed to the CC for a final decision.
In the Reckitt judgment, the Constitutional Court ruled that the Labour Court had found that the separation agreement concluded by the parties constituted a valid concession and rejected his claim. The employee then applied to the Labour Court of Appeal. The Labour Court of Appeal has ruled that a separation agreement must be legally examined in the same way as any other agreement. `Article 191 [of the Law on Industrial Relations (LRA)] provides that the CCMA must take a decision where the existence of a dismissal is called into question by determining whether an employee who has brought an action for unfair dismissal has been dismissed within the meaning of Article 186(1) of the [LRA]. In these circumstances, I do not understand why, in matters such as this one, where it is alleged that an agreement is countervailable because it was concluded by coercion, the CCMA does not have the power to take that decision in the exercise of its jurisdiction to establish the existence or absence of dismissal. Requiring a claimant, in those circumstances, to refer a contractual dispute to that court as a condition of arbitration on an action for wrongful dismissal would nullify the legal objective of informal and expeditious dispute resolution and introduce a requirement that is not reflected in the [LRA]. » Home > General > Mutual Separation Agreements – Who is responsible? As a way to avoid cumbersome, often costly and disruptive disciplinary processes, a mutual separation agreement is a winner. However, extreme caution should be exercised when handling this method of terminating an employee`s contract. The fact that once signed, the mutual separation is binding, can be a disadvantage, especially if the employee has not been assisted by a lawyer. This is due to the fact that an employee is often satisfied with adverse conditions because he believes that this was the only option he had. It is important that the employee has received the necessary support before entering into a mutual separation agreement and that he is fully aware of his rights.
Unfortunately, after the agreement is signed, it is too late for the employee to renegotiate new settlement terms. When the parties reach a point where their relationship is broken for one reason or another, they may choose to have a disorderly divorce or amicable separation. If the parties decide to separate amicably, they can negotiate the relevant separation terms. Once a consensus is reached between the parties, they sign a binding mutual separation agreement. This article does not address the aspect of an employee`s right to review and cancel a mutual termination agreement (whether questionable or not) on the basis, among other things, of alleged coercion, coercion or undue influence. That would be beyond the scope of the article. In conclusion, the question of whether an employee can waive his right of appeal (right of access to justice) against his employer has now been ruled by the Constitutional Court as not contrary to public order (bonos mores) and therefore lawful. However, it is important that an employer and an employee who actually decide to enter into a mutual termination agreement clearly formulate such an intention in order to give full effect to the waiver under the other terms of the agreement. In order to avoid ambiguities or their partial application, it is recommended to seek appropriate legal advice when entering into a mutual termination agreement. Our labour lawyers assist employers in the preparation of amicable separation agreements that are fair, binding and legally secure.
We also support employees who have been equipped with an MSA in an advisory capacity to ensure that their interests are taken into account in the final signed MSA. In these cases, the state must decide who initiated the separation and whether unemployment benefits should be granted. As we mentioned in our previous blog, the state plays the role of an impartial third party and determines who receives unemployment benefits and who does not. If the employer has dismissed the employee, the state must assess whether the reason for the dismissal is due to bad behavior during employment. If bad behaviour during employment was not the cause, the applicant usually receives unemployment benefits. On the other hand, if a former employee is the one who initiated the dismissal, then the state must determine whether the plaintiff had a good reason. If no valid reason is found, the State cannot grant unemployment benefits. As I briefly mentioned in my previous article, previous circumstances and negotiations on a mutual separation agreement must be managed properly. This is due to the fact that if they are mismanaged, there is a risk that if the negotiations fail and you subsequently fire the employee, they can claim that you have already decided to get rid of them. .