Voluntary Separation Agreement South Africa

The staff member then spoke to the CC. Prior to the CCA, the question was whether full and final regulation limited its constitutional right to legal action with the CCMA and the courts. The CC found that there was no violation of its constitutional right to access to justice, as the employee, as a leader, fully understood the consequences of the agreed waiver and gave him the same bargaining power. In the application of the pioneering Barkhuizen/Napier 2007 (5) SA 323 (CC) case, the CC found that there was no indication that the worker had unequal bargaining power, given his position and knowledge and design of the contract. The CC also found that, in determining the legality of the waiver, constitutional rights may be limited to the extent that such a restriction is appropriate. Full and final settlement clauses providing for the conclusion of a dispute are daily and lawful and are not contrary to public policy. The CC concluded that the intentions of the parties were clear, as the worker separated from his employer on final terms. The CC found that the agreement itself was clear and that a valid compromise prevailed over all other contractual rights that the worker might have had. Initially, the worker went directly to the CC, but the CC dismissed his appeal, ruling that the matter was not in the public interest.

He then quickly went to the labour tribunal („lc“) on the grounds that he had been forced to sign the separation agreement against his will and that he was constrained and that the terms of the agreement restricted his constitutional right to judicial speaking and that they were from the outset contrary to public order and not valid. However, LC found that its claim to duress was not supported by the facts and that the separation agreement was a valid compromise, since the circumstances were created by its own misrepresentation. The LC dismissed his complaint. The court confirmed that an agreement can be struck down if it is established that the employee entered the same thing under duress, but the weight of the evidence of these constraints rests with the worker and the court has decided that the worker did not prove the same thing on the evidence before him. In a case recently decided by the Labour Appeal Court [ABSA Investment Management Services (Pty) Ltd vs Crowhurst 2006, 2 BLLR 107], Ms Crowhurst went to the labour court to demand unfair deductions. ABSA lost the case and stated on appeal that the employee`s employment had been terminated by mutual agreement, to which the employee replied in the negative. However, in Hodges/Urban Task Force Investments CC e.a. (JR840/12) [2013] ZALCHB 295 (November 7, 2013), the Labour Tribunal found that a worker could not waive his fair dismissal rights in exchange for payments against the worker.

For this reason, a voluntary savings contract is valid and enforceable only if a „sweetener“ is paid or granted to the worker in the form of an amount or benefit, in addition to the one to which he is entitled. The worker then appealed the case to the labour tribunal (`LAC`), which held that the separation agreement should be treated in law like any other agreement between the employer and the worker. In addition, the LAC confirmed that a contract was not valid if it was entered into under duress, if the intimidation or undue pressure does not render the employee`s consent to execution and that, therefore, the burden of proof of abstention was due to the applicant.