THE CCMA’S JURISDICTION IN CASES OF SEPARATION AGREEMENTS

The applicant alleged dismissal for an unknown reason after signing a separation agreement, which he claimed was drafted in his absence. The commissioner found that the applicant failed to prove his alleged verbal dismissal, noting his continued cordial communication with management and the voluntary nature of the agreement. Therefore, the CCMA lacked jurisdiction and the application was dismissed.

Lerooibaki / 303 Security and Cleaning Services (Pty) Ltd (2024) 33 CCMA 7.1.9

Case summary

The applicant was suspended with full pay pending an investigation into allegations of serious misconduct on 8 August 2023. Thereafter, the applicant and the respondent entered into a separation agreement on 4 September 2023.

The applicant held that he was verbally dismissed by the respondent, supporting his claim with his own oral and documentary evidence. Conversely, the respondent maintained that the applicant had not been dismissed, but that the parties had entered into a separation agreement, as demonstrated by the oral evidence of a sole witness, a voice note and documentary evidence.

The commissioner took into account the case of SA Rugby (Pty) Ltd and others v SARPU and others [2008] 9 BLLR 845 (LAC), where the Labour Appeal Court held that the issue before the commissioner was whether there had been a dismissal or not, which is a jurisdictional matter for the CCMA. Establishing whether a dismissal occurred is crucial to determine the CCMA’s jurisdiction to entertain the dispute. If no dismissal occurred, the CCMA lacks jurisdiction under section 191 of the Labour Relations Act.

The commissioner also considered the case of Stellenbosch Farmers’ Winery Group Ltd and another v Martell & Cie and others 2003 (1) SA 11 (SCA), where it was held that when faced with two conflicting versions, the commissioner must assess the credibility of witnesses and the probabilities of the versions to determine the truth.

The commissioner ruled that the evidence presented did not substantiate the applicant’s claim of dismissal by the respondent on 29 August 2023. The applicant continued to communicate amicably with the respondent after the alleged dismissal, as shown by WhatsApp messages and voice notes between him and the respondent. Notably, in these communications, the applicant did not mention being verbally dismissed on 29 August 2023.

Furthermore, the applicant’s claim that he signed the separation agreement under duress from the respondent was unconvincing. The communications between the applicant and the respondent demonstrated no undue pressure to sign the separation agreement. The commissioner deemed it significant that the separation agreement was signed on 4 September 2023, after the alleged dismissal. This raised the question of why the applicant signed the agreement if he had indeed been dismissed on 29 August 2023. Therefore, the argument that the applicant was forced to sign the separation agreement to secure statutory entitlements was rejected.

The commissioner held that the respondent’s version that no dismissal occurred and that the parties entered into a voluntary separation agreement was more persuasive. Clause 3.8 of the separation agreement confirms the voluntariness of the parties’ conduct: “This agreement is entered freely and voluntarily by the employee who warrants that he was not forced and/or coerced to do so in any way.” The documentary evidence also demonstrated, on the balance of probabilities, that the respondent did not dismiss the applicant. The evidence provided by the respondent’s sole witness was deemed reliable, credible and more probable than the applicant’s, whose demeanour and candour were not genuine and had internal contradictions.

Given that the employment relationship ended due to the voluntary separation agreement, the applicant failed to prove, on the balance of probabilities, that he was dismissed by the respondent. Consequently, the applicant was not entitled to the relief of retrospective reinstatement. Due to the applicant’s failure to prove the existence of a dismissal, it was ruled that the CCMA lacked jurisdiction to entertain the dispute.

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

We will continue to keep you informed and updated

Inform Empower Comply

Since 1998