- 2011/09/25 -

I had a matter at the CCMA recently where I represented an employee who contended that he had been unfairly dismissed. When I arrived at CCMA the respondent’s representative argued that the CCMA had no jurisdiction because the applicant had signed a settlement agreement in which he had agreed to accept payment of R100.00 in full and final settlement of all claims related to the termination of his employment. The agreement also recorded that what wages and leave pay was due to the employee. He thought that when he signed it he was acknowledging receipt of this wages. What he did not know was that he was signing away his rights to refer an unfair dismissal dispute to the CCMA. Cynical conduct on the part of the employee; undoubtedly.

In FNB v Wellman the Labour Court held that the powers of commissioners of the CCMA to rule on the interpretation and application of agreements is limited to collective agreements in terms of section 24 of the Labour Relations Act.  The Labour Appeal Court up held this decision.

The commissioner in my matter therefore correctly held that the CCMA had no jurisdiction and that if the applicant wished to challenge the settlement agreement he was required to launch an application in the Labour Court.

The effect of these judgments is that employees’, such as my poor applicant who was duped into signing the settlement agreement, are now required to apply to the Labour Court and argue that the agreement ought to be set aside.
It does not matter whether the employee signed under duress or that he did not understand what he was signing, the CCMA will not entertain the subsequent referral of an unfair dismissal dispute. The only time that the CCMA will deal with a settlement agreement is if the employee disputes that he signed the agreement and the commissioner is required to determine whether there is a settlement agreement signed by the employee. If the employer cannot prove the agreement the CCMA has jurisdiction.

So in order to protect yourself I suggest the following.
If you have been dismissed and you are required to sign for your last salary and leave pay make sure that you read the document in full. The document should amount to nothing more than a receipt. If there are conditions contained in the document ask the employer to explain them. If no acceptable explanation is forthcoming, simply put a line through the offending clauses and sign the document.

Often an employer will insert the following clause. “Received in full and final settlement” or “Payment is made and received in full and final settlement of all claims that the employee may have against the employer”. If you come across these clauses simply put a line through them and initial the amendment. If your employer refuses to pay you take a copy of the letter and go to the Department Of Labour and lodge a complaint for non-payment of wages.

But what about my client who unknowingly “settled” for R100.00 ?.
In Roberts & other v WC Water Comfort Pty Ltd the employees had signed an agreement accepting payment of severance benefits in full and final settlement of any disputes arising out of their retrenchment. The employees argued that they had not waived their rights to refer a dispute because they had only signed because they were desperately in need of money. The Court was not satisfied that the agreement was an unequivocal waiver of the employees’ rights to refer an unfair dismissal case and dismissed the employer’s argument. This point however was decided on affidavit in which there were material disputes of fact that could not be resolved by cross-examination.
In short my client, had he the resources, could have challenged the agreement in the Labour Court.
For more information contact Kevin Allardyce on Kevin@allardyce.co.za or 011-694-4060.