It is common practice between employers and the employees that if a disciplinary hearing is about to take place the parties discuss the possibility of settling their differences and parting ways before a dispute ensues.  The nature of these agreements are being questioned by our Courts.  In a recent judgment Metjielies vs Stratostaff (Pty) Ltd t/a Adecco Justice Lallie looked into the settlement agreement and said that the agreement terminating the employment relationship by mutual consent was rendered null and void.  The Judge looked into the nature of the agreement and whether the agreement is entered into freely and voluntarily and with full knowledge.  In this particular case the employee (Applicant) said that he was not aware of what he was signing, it wasn’t explained to him and he didn’t sign with full knowledge.  He also did not read the agreement and was merely presented with it for his signature.  The Applicant (employee) stated in Court that he thought the document was a confirmation that he had received it and that he still believed what was done to him was unfair and not by mutual consent.

Our Courts and especially the Labour Court often look into these agreements when they are challenged.  It is vital for the agreement to be fully explained, read and understood before signature is appended hereto.  Furthermore, it would be useful to have witnesses present when the explanation does take place so that people can come forward and testify that the employee was fully aware of the nature of the agreement and entered into it freely and voluntarily.

MICHAEL BAGRAIM
BAGRAIMS ATTORNEYS