However, after the agreement was signed, the employee applied to the Labour Court (“LC”) to annul the agreement and declare that the agreement was signed under duress. The employee also claimed that the agreement was contrary to public policy, as it restricted his constitutional right to a judicial remedy. The Labour Court rejected the worker`s claim on the grounds that there were no facts based on the coercion of his appeal. However, the position may change if a staff member signs the agreement under duress or unlawful influence. Coercion or undue influence is when a party is afraid, as this may have led them to sign an agreement that they may not have entered into of their own free will. This issue was addressed in Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and another  OJL 36648 (CC). In this case, the worker requested mutual separation in order to avoid dismissal. As a result, he signed the agreement in full and definitively and therefore waived his right to apply to a competent authority to remedy his employer`s situation. With regard to the agreement, he also agreed to have signed the agreement without coercion or undue influence. Unfortunately, the parties are not always satisfied with the settlement agreement they have signed.
We recently consulted with various clients after signing a reciprocal separation agreement with their employer. They often settled for adverse conditions because they thought it was the only option they had. It was only later that they found that the employer had received most of the windfall. Unfortunately, in most cases, it is too late for employees to renegotiate new transaction terms, especially when these agreements are reached to fully and definitively settle all future claims. The Labour Court in Schröder and another against Pharmacare Ltd t/a Aspen Pharmacare confirmed this view. The candidates and their employer had terminated the employment relationship by entering into mutual separation agreements. The applicants then referred a dismissal dispute to the Collective Agreements Board. The arbitrator found that there had been no termination within the meaning of section 186 of the LRA because their employment relationship had ended by mutual agreement. The arbitrator concluded that the Board of Negotiations was not competent because it did not dismiss to examine the dispute. The applicants applied to the Labour Court for annulment of the agreements. A mutual separation agreement is an agreement between an employer and an employee to terminate the employment relationship.
The Labour Court concluded that the agreement separating the parties constituted a valid concession and dismissed his appeal. The employee then went to the Labour Court of Appeal. The Labour Court of Appeal decided that a separation agreement should be legally considered in the same way as any other agreement. The employer and the worker may agree to enter into a mutual separation agreement to terminate the employment relationship. And the best part is that a mutual separation agreement is not considered a dismissal within the meaning of the Employment Relations Act and is a widely accepted practice by the CCMA and the Labour Court. In Cook4Life CC v Commission for Conciliation, Mediation and Arbitration &others (2013) 34 ILJ 2018 (LC), the Labour Court considered whether the Conciliation, Mediation and Arbitration Commission (CCMA) had jurisdiction to determine the validity of mutual separation agreements. . . .