Suppose a scenario in which the employee was guilty of a fault and the employer dismisses the employee without a trial. The employer acknowledges that he made a mistake and then negotiates a settlement contract for the termination clause in the employment contract. In this case, the employer may be problematic when a dispute is reported. The Tribunal found that, as it did not waive the requirements that the employer must meet under the 1995 Labour Relations Act 1995 as amended („LRA“), the worker may challenge the material and procedural fairness of his dismissal. The Tribunal then awarded the worker 12 months` compensation less the amount of „compensation“ paid to him under the agreement. To this day, I am still faced with a case in which the Commissioner of the CCMA effectively decides on the validity of a transaction agreement when the validity and/or applicability of such an agreement is disputed by the worker. This is a court case and, since the CCMA is a creature of the law, which in this scenario means that the legislation and rules it regulates do not imply the CCMA`s jurisdiction to decide the validity of a transaction contract is generally a proverbial „cut and dryer“ for the benefit of the employer. An employer cannot require a worker to sign savings contracts if the employer does not pay the worker more than the worker would legally do. It is unlikely that the employer will avoid liability in such circumstances.
Click on the link to learn more about Werksman`s expertise in work and employment. Paul and his team are happy to discuss any questions you have about your employment contract or the negotiation process. On the same day, you provide advice on whether the billing offered is appropriate, and if not, what are your options. If you decide to sign the agreement, you must also be aware of the rights you are waiving. As soon as you sign a contract for dismissal, your employment ends and therefore waives the following rights: the applicant went to the CCMA because his dismissal was unfair. He stated that he had entered into the agreement to obtain what was owed by law and that he had to (the transaction agreement provided no benefit beyond the benefits that the law provided for, which he had to obtain if he was withdrawn) and that he had no intention of resolving the dispute over the fairness of his dismissal. The CCMA refused to consider the litigation because it found that there was no dismissal (due to the resolution of the dispute) and therefore was not competent to consider the matter.