IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS 25/2021
In the matter between:
JOHANNES MARA Applicant
and
TEMS MEAT WHOLESALERS First Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The date f or hand-down is deemed to be
19 January 2024.
JUDGMENT
MAHOSI, J
Introduction
[1] The issue in this matter relates to the a pplicant’s claim of automatically unfair
dismissal, as provided for in section 187(1)(f) of the Labour Relations Act1 (LRA),
by the respondent . In essence, the applicant claims that the respondent unfairly
discriminated against him when it dismissed him because of his age.
1 No. 66 of 1995, as amended.
[2] The respondent denied any dismissal and averred that the applicant voluntarily
entered into an early retirement agreement. Although the applicant conceded that
he had signed the agreement above, he averred that the respondent coerced him
into signing it.
[3] The parties sought that this Court determine, inter alia, whether the agreement
entered into on 27 August 2020 w as valid and binding . On the one hand, t he
applicant testified in support of his case and filed heads of arguments. On the
other hand, the respondent’s representative cross -examined the applicant and
only filed heads of arguments.
Background
[4] The applicant commenced employment with the respondent as a driver in
November 2009. Before that, the applicant was a Temporary Service Employee
placed at the respondent. At the time of his dismissal, the employee earned a
salary of R8 000.00 per month.
[5] On 01 July 2020, whilst at work and offloading a truck , the applicant sustained
injuries which rendered him unfit for work . As a result, the applicant attended
various medical evaluations, reports of which he submitted to the respondent .
Whilst the medical report dated 15 July 2020 showed that the applicant was likely
to be fit to do light duty from 17 July 2020, the one dated 04 September 2020
revealed that the applicant was fully recovered and had been fit for work from 01
September 2020.
[6] The applicant subsequently returned to work. On 27 August 2020, the applicant
and the respondent signed a Mutual Separation Agreement titled “Early
Retirement”. The circumstances surrounding the signature of the aforementioned
agreement are in dispute. The respondent paid the applicant in terms of the
agreement and the latter withdrew his funds from the Provident Fund.
[7] Dissatisfied with the amount of money he received as per the agreement and
from the Provident Fund, the applicant referred an unfair dismissal dispute to the
Bargaining Council for the Meat Trade Gauteng (the bargaining council) for
conciliation. The bargaining council could not resolve the dispute through
conciliation. As a result, it issued a certificate of outcome ce rtifying that the
matter remained unresolved as of 17 November 2020. The ruling directed the
applicant to refer the matter to the Labour Court for adjudication. Accordingly, the
applicant launched this application.
The evidence
[8] The applicant testified that after recovering and resuming his dutie s, the
respondent’s director, Mr Steven de Pina (Mr Steven) , offered him early
retirement and showed him the settlement agreement. He requested to take the
agreement to his children for their advice. However, Mr Steven refused, told him
he had no time, and pointed him to where he was supposed to sign. When asked
how he was forced to sign the agreement, the applicant stated that Mr Steven
shouted and told him that he had no time.
[9] Under cross -examination, the applicant conceded that he withdrew his funds
from the Provident Fund on 15 September 2020. Thereafter, he instructed a firm
of attorneys to refer, on his behalf, an alleged unfair dismissal dispute to the
bargaining council . Further, the referral form disclosed that the respondent
offered him early retirement and a severance pay that was less than what he was
entitled to. Furthermore, the respondent failed to allow the applicant to return to
work after the proposed early retirement.
Applicable law and analysis
[10] The dispute between the parties mainly turns on the validity or otherwise of the
settlement agreement, and the finding in the affirmative settles the matter.
[11] It is an established principle that contracts are binding on parties and are
therefore enforceable unless it can be shown that the parties were not on an
equal footing when entering into the contract, or that the contract was invalid ab
initio, or that it is contrary to public policy or it is an illegal contract. In Gbenga-
Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another 2 the Labour
Appeal Court (LAC) held that:
‘[12] Contractual principles apply to any agreement entered into between an
employer and employee, including an agreement of compromise in terms
of which parties agree to settle any dispute, or claims, that may exist
between them.
[13] It is not in issue that the appellant and respondent signed the mutual
separation agreement. Neither is there any dispute that the agreement
records that it was entered into “ in full and final settlement of all claims of
whatsoever nature and however arising between the Parties ”; that the
appellant waived his right to notice pay and his right to approach both the
Commission for Conciliation Mediation and Arbitration (CCMA) and any
court for relief against the respondent “ emanating from his Employment,
his resignation and/or [the] [a]greement.”
[14] The appeal against the judgment of the Labour Court turns, in the first
instance, on whether the separation agreement was signed under duress
by the appellant and is, as a consequence, invalid ab initio and whether
the Court a quo erred in finding that it was not.
[15] A contract may be vitiated by duress where “ intimidation or improper
pressure renders the consent of the party subjected to duress no true
consent”. Compulsion may be exercised by way of physical force, or
indirectly, by way of a threat of harm. In order to obtain an order setting
aside a contract on the grounds of duress, actual violence or reasonable
fear must be shown. The fear must be caused by the threat of some
2 (2016) 37 ILJ 902 (LAC) at para 12 onwards.
“considerable evil” to the person concerned, or to his, or her, family. The
threat or intimidation must be unlawful, or contra bonos mores and the
moral pressure used must have caused damage . The burden of proving
the existence of duress rests on the party raising it.
[Footnotes omitted]
[12] In the current matter, the applicant contended that he signed the agreement
under duress as the respondent told him that he had no time, pointed to where
he had to sign and was not allowed to take it home to consult his children. When
asked if he complained to the respondent about the settlement amount before
signing, he explained that his relationship with the respondent was that of a " boy
and boss". The picture painted by t he applicant did not show actual violence or
reasonable fear caused by considerable evil to him. He had a choice to leave Mr
Steven’s office without signing the agreement, but he chose not to.
[13] The applicant did not immediately refer the dispute to the bargaining council.
Instead, he raised concerns about the settlement agreement when he was
unhappy with the payment amount from the Provident Fund. In the referral to the
bargaining council, he did not raise the complaint about being coerced to sign a
settlement agreement. Additionally, he could not, under cross-examination give a
reason why he chose not to, save to state that it was his attorneys who referred
the dispute. Therefore, the only reasonable conclusion that the Court could draw
is that he read and understood the contents of the settlement agreement prior to
signing it.
[14] The Constitutional Court in Gbenga-Oluwatoye v Reckitt Benckiser South Africa
(Pty) Limited and Another3, held as follows:
3 2016 (12) BCLR 1515 (CC) at para 24
‘The public, and indeed our courts, have a powerful interest in enforcing
agreements of this sort. The applicant must be held bound. When parties settle an
existing dispute in full and final settlement, none should be lightly released from an
undertaking seriously and willingly embraced. This is particularly so if the
agreement was, as here, for the benefit of the party seeking to escape the
consequences of his own conduct. Even if the clause excluding access to courts
were on its own invalid and unenforceable, the applicant must still fail. This is
because he concluded an enforceable agreement that finally settled his dispute
with his employer.’
[15] In casu, the applicant accepted the conditions of the agreement to be in full and
final settlement of all claims of whatever nature that he may have against the
respondent. On the conspectus of all the evidence , the applicant failed to prove
the existence of duress or coercion. Thus, with the signature of the agreement not
being in dispute, the settlement agreement is binding on the parties . The fairness
of the applicant's dismissal does not arise in light of the above. Therefore, it
follows that the applicant's claim ought to be dismissed.
Costs
[16] Whilst the applicant was ill-advised in bringing this application, I am not inclined
to order costs against him, considering the principles of equity and fairness.
[17] Accordingly, the following order is made:
Order
1. The applicant’s claim is dismissed.
2. There is no order as to costs.
D. Mahosi
Judge of the Labour Court of South Africa
Appearances:
For the applicant: Mr Goerge Leshaba, an attorney of MM Mitti Incorporated
Attorneys
For the respondent: Mr George Jonker, an official of the South African United
Employers’s Organisation