Regular readers of the Consolidated Employers Organisation forums would be very familiar with the various manners in which the employment relationship can come to an end. The more common termination methods, to name a few, are dismissal for misconduct, dismissal for incapacity, dismissal for poor work performance, dismissal for operational requirements and then, of course, retirement.
In certain situations, the employment relationship may come to an end through what is called a mutual termination agreement. As the name suggests, this agreement comes about when both parties, being the employer and the employee, collectively decide that the employment relationship will cease to exist.
This form of termination is unique in nature in that where other forms of termination are primarily unilateral in their nature, i.e., resignation, where the employee decides to end the relationship, or dismissal for misconduct, where an employer, after following the correct processes, can prove that a continued employment relationship is impossible, mutual termination implies that both parties to the employment relationship concur in its termination.
An employer might believe that concluding an agreement like this brings finality to all past and/or future issues pertaining to the employment relationship. And while, yes, this is what the purpose of such an agreement sets out to achieve, the fact is, in practice, things are very seldom so straightforward.
After concluding a mutual termination agreement, the common problem is that they still find themselves on the receiving end of CCMA and Bargaining Council referral forms for unfair dismissals. There clearly was not a dismissal, yet employers will still need to attend to defend themselves.
The manner in which these matters play out at the CCMA / Bargaining Councils is almost always carbon copies of one another. The employer presents the mutual termination agreement, and the employee states one of the following:
- “I did not know what I was signing.”
- “The employer forced me to sign this document.”
- “I did not know what the employer was saying because I do not understand their language.”
Although there are, of course, exceptions, generally speaking, a former employee may well attempt to mislead a Commissioner in a last-ditch attempt to get their old job back or to try and make some money from their former employer.
It is therefore paramount that employers safeguard themselves when entering into mutual termination agreements. Manners in which this can be done are as follows:
- Ensure that the contents and implications of the agreement are clearly communicated to the employee.
- If there is a language barrier, ensure that there is an individual who is able to translate the contents and implications of the agreement to the employee.
- Have a witness present when the contents and implications are explained, and the agreement is signed.
- Ensure that the employee enters into the agreement voluntarily and free of any duress.
Employers should ensure that the above tips are adhered to as far as possible to give themselves their best possible chance to succeed with these types of matters at the CCMA and Bargaining Councils.
Article by: Wesley Field
Provincial Manager – Bloemfontein