Voluntary Separation Agreement South Africa

However, in Hodges/Urban Task Force Investments CC e.a. (JR840/12) [2013] ZALCHB 295 (November 7, 2013), the Labour Tribunal found that a worker could not waive his fair dismissal rights in exchange for payments against the worker. For this reason, a voluntary savings contract is valid and enforceable only if a „sweetener“ is paid or granted to the worker in the form of an amount or benefit, in addition to the one to which he is entitled. The court confirmed that an agreement can be struck down if it is established that the employee entered the same thing under duress, but the weight of the evidence of these constraints rests with the worker and the court has decided that the worker did not prove the same thing on the evidence before him. If a voluntary separation package is accepted by a worker, the parties may agree that the payment is calculated in the same way as the payment used to calculate a legal savings plan. In other words, the calculation can be based on the number of years of service of the employee. See also: Mutual Separation Agreements: Reserve Subcontractor The worker then accepted the case on appeal to the Labour Appeals Tribunal (`LAC`), which held that the separation agreement should be treated in law like any other agreement between the employer and the worker. In addition, the LAC confirmed that a contract was not valid if it was entered into under duress, if the intimidation or undue pressure does not render the employee`s consent to execution and that, therefore, the burden of proof of abstention was due to the applicant. However, on the basis of the evidence presented, the LAC approved the LC`s decision and dismissed the appeal with costs. In Gbenga-Oluwatoye/Reckitt Benckiser South Africa (Pty) Limited and Another (2016) 37 ILJ 2723 (CC), the Constitutional Court (CC) considered the validity of a mutual separation agreement and reaffirmed that: that these agreements are legal, even if they waive a worker`s right to seek legal action by the Conciliation, Mediation and Conciliation Commission (CCMA) and the courts. Mutual separation is not the same as dismissal or reduction The following aspects must be taken into account before the adoption of a voluntary austerity plan: in a section 189 reduction, the employer does not need to obtain the agreement of the workers to proceed with the reduction. Instead, it must only comply with the provisions of the LRA. On the other hand, a consensual separation is by definition an agreement.

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