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The case law is not yet clear enough, but in the case of Schroeder and another vs Pharmacare Ltd (Aspen Pharmacare) in 2015, the judge found that the labour tribunal and the CCMA were not empowered to determine the validity of such a transaction contract. However, I was recently confronted with a case in which the worker questioned the validity of a settlement agreement for the reciprocal termination of his employment relationship. Based on this information, Reckitt Benckiser negotiated a compensation package including a $40,000 registration bonus, housing assistance and an extended work permit. The employee started in July 2013 as regional human resources director of Reckitt Benckiser. However, when Reckitt Benckiser found in early 2014 that the employee was not employed by Unilever at the time of his representation, he was summoned for a disciplinary hearing and dismissed because of his substantial distraction. The employee then asked for a « softer exit » and Reckitt Benckiser agreed. The worker entered into a separation agreement with Reckitt Benckiser in order to fully and definitively oppose any claims that the parties might have against each other. In the agreement, the worker acknowledged and accepted that the termination of his employment relationship was without undue coercion or influence and that he had voluntarily and unconditionally waived his right to apply to the CCMA and any other jurisdiction for discharge. The judge also noted that a transaction agreement was not an interim item that would devid the jurisdiction of the CCMA. This means that the CCMA is not prevented from considering a transaction agreement when it is established whether or not there is dismissal. This is in itself a difficult concept, given that I believe that the CCMA can consider a transaction agreement and, although it cannot ignore the agreement, it can nevertheless find that, regardless of an amicable comparison with termination of employment, there is still a layoff. Given the particular circumstances of a case, there may also be wrongful dismissal. Section 191 [of the Labour Relations Act (LRA)] is the defamation that the CCMA must make a decision in the event of a dismissal being called into question in deciding whether a worker claiming a right to unfair dismissal has been rejected in the service recognized by Section 186 (1) of the LRA].

In this example, I do not end on the reason that the CCMA does not have the authority to make this decision in the exercise of its jurisdiction to determine the existence or absence of dismissal in areas such as this, when it is claimed that an agreement may be annulled because of its forced source.

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