Our specialized lawyers help employers develop fair, binding and legally flawless separation 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. A mutual separation agreement must be written, signed and certified by both parties. It is important to ensure that the agreement provides for at least the following: In Cook4Life CC/ Commission for Conciliation, Mediation and Others (2013) 34 ILJ 2018 (LC), the labour tribunal has considered whether the Conciliation, Mediation and Arbitration Commission (CCMA) has jurisdiction to determine the validity of mutual separation agreements. This view was confirmed by the Schroeder Labour Court and another v Pharmacare Ltd t/a Aspen Pharmacare. The applicants and their employer had terminated the employment relationship by entering into reciprocal separation agreements. The applicants then referred a wrongful dismissal dispute to the Bargaining Board. The arbitrator found that there had been no dismissal with respect to Section 186 of the LRA because his employment had ended by mutual agreement. The arbitrator found that the bargaining board was not competent to review the dispute because of a lack of dismissal.
The applicants then went to the labour tribunal to request the cancellation of the agreements. 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. However, the position may change if a worker signs the agreement under undue coercion or influence. Harsh or inappropriate influence must be present if a party is afraid, as this could have led it to sign an agreement that it may not have done of its own volition. This issue was dealt with in the case of Gbenga-Oluwatoye against Reckitt Benckiser South Africa (Pty) Limited and another  JOL 36648 (CC). In that case, the worker requested a mutual separation in order to avoid dismissal. He signed the agreement in full and final count and therefore waived his right to go to any competent authority in order to obtain relief against his employer. With regard to the agreement, it also agreed to sign the contract without undue constraint or influence. The question then is whether a mutual separation agreement can be cancelled when a worker feels that he or she has been treated unfairly. The simple answer is no.