LLA 370 Dismissals: termination by agreement

Categories: 300 Dismissal
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About Course

LLA 370 Dismissal: termination by agreement

This course forms part of the programme* LLA 300: Dismissal. All the courses in that programme deal with the same issue in dispute: was an employee “dismissed” as defined by section 186(1) of the Labour Relations Act, 1995.

This course is part of the series discussing the first issue in an unfair dismissal dispute: was the employee dismissed? The article deals with the ‘defence’ to such an allegation that the employee’s employment was terminated by consent.

The course examines in detail and with reference to relevant case law the elements of this form of defence.

A contract of employment is entered into by agreement between two persons. The fact that there is agreement is the key. There are no formalities which the parties need to follow or comply with in order for a valid and lawful contract of employment to be entered into. In the same way a contract of employment can be terminated by agreement.

The context in which the termination takes place is during the employment period – not after the employee has been dismissed. An example is where the employee has been charged with serious misconduct and is given the option of resigning voluntarily.[1]

Academic authority for this form of termination of a contract of employment is the following statement: “Just as the consensus of the parties brings the employment contract into existence, so too consensus may end a contract”

[1] See for example Nkoana & another and Trio Hardware Distributors (Pty) Ltd (2010) 31 ILJ 2746 (CCMA)

* A ‘programme’ is a series of courses on a particular subject or theme.

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What Will You Learn?

  • On completion of this module and the assessment questions you will be able to-
  •  Understand the context in which these disputes arise
  •  Explain the legal authority for the conclusions reached
  •  Appreciate the background in which these disputes take place
  •  Define which party bears the onus
  •  Explain what the employee must prove
  •  Explain what the employer must prove
  •  Direct the process or procedure to be followed and explain why it is best practice
  •  Understand what needs to be proved to show an agreement to terminate
  •  Advise a party what evidence needs to be lead and why
  •  Assist employer and employee to terminate the employee’s contract of employment by agreement
  •  Consider and apply the issues over which negotiation should take place
  •  Analyse if duress has taken place and if so how such evidence should be presented and assessed
  •  Advise when an agreement is not an agreement to terminate
  •  Explain why an agreement to terminate should be in writing
  •  Apply the law to a set of facts fairly.

Course Content

LLA 370 Module 1: Overview and outcomes
An overview of the course as well as its outcomes are discussed and explained

  • Download the workbook and watch the video

LLA 370 Module 2: Introduction
The context in which these disputes arise is discussed

LLA 370 Module 3: Elements
This module discusses the elements of this form of dispute- what must be proved and how a claim like this can be defended.

LLA 370 Module 4: Bona Fides
The requirement that an agreement to terminate a contract of employment be entered into honestly is discussed.

LLA 370 Module 5: Duress
The question of duress and its impact on an agreement to terminate is explained

LLA 370 Module 6: Agreement
The nature and form of an agreement to terminate a contract of employment is explained in this module.

LLA 370 Module 7: Writing
This module discusses why an agreement to terminate a contract of employment should be in writing

LLA 370 Module 8: Case study 1
A case study is used to explain the pitfalls to avoid when terminating a contract of employment by agreement.

LLA 370 Module 9; Case study 2
a further case study explains how an agreement to terminate a contract of employment may be concluded.

LLA 370 Module 10: Conclusion
This module concludes the discussion.

LLA 370 Assessment: Quiz and assignment.
Take this test to reinforce your understanding of the course material