This means, in the end, that termination is not a fault of one of the parties, based on the agreement of both parties to terminate the working relationship in a friendly manner. The working relationship, like any other relationship, has its back-and-forth and can be terminated by both parties. This raises the question: if normal relationships can result in consensual mutual dismissal, why can`t labour relations do the same? I often use transaction agreements in which a mutual agreement is reached to terminate the employment relationship, regardless of the reasons for the termination. I also use settlement agreements under ordinary procedures to resolve the issue in order to avoid litigation after the fact. Mutual separation is not the same as dismissal or dismissal Our labour law professionals help employers develop fair, binding and legally sound reciprocity agreements. We also support staff members who have been equipped with an MSA, in an advisory capacity, to ensure that their interests are taken care of within the signed MSA. This article does not address the aspect of a worker`s right to review and abrogate a reciprocal redundancy contract (whether cancelled), in particular because of alleged coercion, coercion or inappropriate influence. This would go beyond the line of the article. 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. The court then found that the agreement was unconstitutional, and the Tribunal found that there was no violation of Article 34 of the Constitution (the right of access to justice), as the worker had fully understood the consequences of the contractual restrictions on the separation contract. I thought it was a mere formality, but I was surprised by the Commissioner, who felt that the CCMA was indeed empowered to decide the validity of the agreement. The Commissioner did not present any authority for this opinion.
In this case, a separation agreement was reached between the parties, which “acquires in full and definitively all claims of any kind, but which arise between the parties.” The worker also acknowledged in the agreement that he had accepted the agreement without undue coercion or influence and that he had voluntarily and unconditionally waived his right to severance pay and his right to go to any competent authority, including the CCMA and/or the labour tribunal, to obtain remedies arising from the agreement against his employer. In Gbenga-Oluwatoye/Reckitt Benckiser South Africa (Pty) Limited and Another (JA 95-2014)  ZALAC 2 (February 3, 2016), the Labour Appeals Tribunal examined the validity of mutual separation agreements in South Africa. The employee went to the labour tribunal and claimed that he was harassed to sign the agreement, and he signed it against his will and under duress, and that the terms of the agreement restricted his constitutional right to go to court and were therefore contrary to public order and not valid.