Reply To: Judicial Precedent

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Taurai Mrewa

*Important remarks on mutual separations*

Lawrence Shumbayaonda v Madhatter Mining (Private) Limited:
“If he was entitled to cash-in-lieu on three months’ notice why would he signed an acknowledgement of debt of a lesser amount? In my view this shows that the parties agreed to terminate mutually their relationship. *Plaintiff waived his rights and agreed to leave the employ of the defendant on the terms set out in their discussion. He is not entitled at this stage to claim that which he renounced and expressly signed away”.*

Gauntlet Security Services (Pvt) Ltd. v Hlabangani:
“If that is the case, he is entirely to blame for having misled Gauntlet Security into believing what he intended it to believe that is to say that the contract of employment was being terminated by mutual agreement. He must have known that he was not entitled to the payment of the money he received as terminal benefits without the contract of employment having been terminated in terms of agreement embodied in the document that he signed.”

Nei Zimbabwe (Private) Limited v Zane Brown and 10 Others:
“The employees wanted to terminate their employment with the appellant, that was their prerogative, but they were not entitled to retrenchment packages in terms of section 2 of the Act and the Regulations. The employer offered them some payment, which I might add, it was not obliged to pay in terms of the law. The employees accepted the payment offered. *They received the payment and resigned, squandered the payment and now claim that they are entitled to more money or re-instatement in terms of the Act. That claim is not sustainable”.

“That is to say retrenchment means termination of an employee’s employment for the purpose of reducing expenditure or costs. The termination of employment in casu was not for the purposes of reducing expenditure or costs. Retrenchment also means termination of employment for the purposes adapting to technological change. Again, termination in casu had nothing to do with technological change. Retrenchment can also be effected for the purposes of reorganizing the undertaking in which the employee is employed”.

Ferguson v Basil Read (Pty) Ltd
“The applicant entered into a termination agreement with the respondent in full and final settlement of any disputes arising from his employment. He did so voluntarily, waiving the opportunity to engage in a consultation process in which he could have requested the respondent to consider alternatives to dismissal, such as future employment at the Saldanha project once it commenced. He was not induced to enter into the agreement by misrepresentation. Hence, he was not dismissed”.