Summary: Claim for automatically unfair dismissal on grounds of discrimination section 187 (1)(f). Respondent’s defence was that this Court has no jurisdiction as the parties signed a separation agreement. Applicant contended that the agreement was invalid as she signed under duress. Point in limine re jurisdiction. Absolution from the instance granted.
The Applicant approached this Court for a relief in terms of the provisions of section 187(1)(f) of the Labour Relations Act. She challenges her dismissal and stated that the Respondent directly and unfairly discriminated against her on the basis of ill health and injury on duty. The Applicant claims damages and maximum compensation.
The Respondent opposed the matter and raised a point in limine in respect of jurisdiction. The point in limine is that the Applicant signed a document titled “Mutual termination agreement between DHL supply chain South Africa (Pty) Ltd and Erika Moseleni” (the agreement) on 17 December 2010 and that the agreement constituted a full and final settlement of all disputes between the parties and therefore the Applicant is precluded from approaching this Court for relief as she waived all her rights to do so.
In respect of the agreement the Applicant’s case is that it is not a valid agreement and that she has in fact not waived any of her rights when she signed the agreement.
The parties agreed that the point in limine should be determined prior to the matter proceeding to trial as the point in limine could dispose of the trial in its entirety. If the agreement is valid, this Court will not have jurisdiction to adjudicate the unfair dismissal dispute.
The parties agreed that oral evidence should be adduced in respect of the point in limine. The Applicant, Ms Moseleni and her husband, Mr Johny Moseleni, testified. The testimony will be dealt with only insofar as it provides a background to the matter and is relevant to the agreement and the signing thereof.
The Applicant’s claim:
The Applicant’s statement of case deals with the settlement agreement and Mr Ford on behalf of the Applicant indicated that the grounds for invalidity as raised in the statement of case and which the Applicant would persist with are as follows:
Par 5.36 of the statement of case: The Applicant was placed under duress and coercion into signing the termination agreement;
Par 5.38 of the statement of case: The settlement agreement is contrary to public policy, the Applicant did not waive any of her rights when the agreement was signed and she lacked sound judgment and concentration due to her physical and medical condition;
The agreement is contra the provisions of section 142 A of the Labour Relations Act.
Background and evidence adduced
The Applicant commenced employment with the Respondent (DHL) on 1 October 2009 as an inventory manager. On 10 November 2011, she fell ill and was admitted to hospital and booked off on sick leave. The Applicant reported for duty approximately two weeks later and she testified that on the first day she reported for duty, she was called to a meeting with Mr Campbell, the general manager of DHL at the warehouse where she was employed and he raised the issue that the staff members reporting to her were not performing. She was surprised as she was off sick and not present when the staff allegedly did not perform.
Ms Moseleni testified that she was called to another meeting at Mr Campbell’s office and she attended this meeting without her manager. The meeting lasted for approximately 10 minutes. Two days after this meeting and on 7 December 2010 the Applicant consulted her treating psychiatrist, Dr Valli, who issued a medical certificate in respect of the Applicant’s ‘stress related condition’ and he stated that ‘Kindly arrange light duty for patient through her recovery over the next 1 month. A period of leave will be beneficial’”
After consulting Dr Valli on 7 December 2010, Ms Moseleni went back to work and handed the medical certificate to Mr Campbell. He indicated that DHL does not have light duty for her and he was of the view that the Applicant should rather take a package. He said he would speak to the human resources manager, Ms Rene van Rensburg, and that she should come back in the afternoon. In the afternoon when she went back, Mr Campbell indicated that he did not have an opportunity to speak to Ms van Rensburg and the issue was not further explored. Ms Moseleni testified that she felt worthless and hopeless and she went home to discuss the matter with her husband. Her husband told her not to take a package.
On 15 December 2010 the Applicant was handed the agreement. Ms Moseleni testified that the agreement was already typed and she made no inputs into the contents of the agreement. She understood it to mean that the Respondent no longer wanted her in its employ. She took the agreement home and discussed it with her husband who did not want her to sign the agreement.
On 17 December 2010 Ms Moseleni signed the agreement at work, as she knew her husband did not want her to sign. She testified that she signed the agreement as she could see the Respondent did not want her there and it was the best way for her to go. She conceded it was irresponsible to sign the agreement as she had no other employment but stated that she could not do anything else but sign the agreement, as the Respondent no longer wanted her. She testified that she lacked sound judgment at the time she signed the agreement. Ms Moseleni did not elaborate on the reasons why she lacked sound judgment at the time of signing the agreement.
Under cross-examination Ms Moseleni stated that to her duress means ‘unfair’. She conceded that on 15 December 2010 when she was handed the agreement she was not threatened or intimidated by Mr Campbell or Ms van Rensburg. She was told that they do not have light duty for her and she felt hopeless.
In respect of the agreement the Applicant conceded that it was given to her on 15 December 2010 and that she was not asked or forced to sign it immediately but was asked to take it home and to consider it. She conceded that she had an opportunity to read and consider the agreement from 15 to 17 December 2010 when she signed it.
Ms Moseleni conceded that the decision to sign the agreement was her decision but stated that she had no choice as she was told that the Respondent had no light duty for her. She had no alternative but to sign the agreement.
Ms Moseleni conceded that she was paid the amount of money as set out in the agreement and she accepted it and never tendered to pay it back to DHL. It was put to Ms Moseleni that there was no evidence before Court that she was so incapacitated that she could not sign the contract or understood its terms. It was further put to her that she was not physically and mentally so ill that she did not understand the terms of the agreement. She did not dispute these propositions and conceded that she read the contract and emphasized that her husband did not agree with it.
The Applicant was referred to clause 8 of the agreement, which reads as follows: ‘This agreement is in full and final settlement of all disputes between the parties either as a result of the employment or the termination thereof’Ms Moseleni testified that she signed the agreement and she understood it to be a settlement. She agreed that she compromised all the issues she had when she signed the agreement.
Mr Moseleni testified about the health condition of the Applicant and most of his evidence is not relevant for purposes of determining the point in limine. He testified that he told the Applicant not to sign the document but to go back to the Respondent and to discuss the matter with her employer. He said that the Applicant never told him that she was going to sign the agreement.
The Applicant called no further witnesses and closed her case.
At the close of the Applicant’s case Mr Venter on behalf of the Respondent moved for an application for absolution from the instance.
The facts before Court
From the Applicant’s testimony and concessions she made under cross-examination I accept the following:
The Respondent was not inclined to grant the Applicant leave and did not have light duty for her;
The Applicant, after being advised that there was no leave or light duty, did not pursue the issue further but felt hopeless. She did not tell the Respondent that she wanted to resume her normal duties or that she wanted to discuss the matter further nor did she make any alternative proposals. According to her she felt that the Respondent no longer wanted her;
The Respondent handed the agreement to the Applicant on 15 December 2010 and she was advised to study the agreement and discuss it with her husband. She was not expected or requested to sign the agreement on 15 December 2010;
The Applicant took the agreement home and discussed it with her husband, who told her not to sign the agreement and advised her to rather discuss the matter further with the Respondent. There was no evidence that the Applicant accepted this advice and attempted to discuss the matter any further with the Respondent prior to signing the agreement;
On 17 December 2010 the Applicant signed the agreement;
The Applicant was not threatened or intimidated when she signed the agreement, nor did she experience any fear;
The Applicant read, considered and understood the terms of the agreement;
The Applicant signed the agreement after she took the decision that it would be the best way out for her;
The agreement signed and entered into by the Applicant and Respondent on 17 December 2010 provided that ‘This agreement is in full and final settlement of all disputes between the parties either as a result of the employment or the termination thereof.’ Ms Moseleni testified that she signed the agreement and she understood it to be a settlement. She agreed that she compromised all the issues she had when she signed the agreement;
The Applicant was paid in terms of the agreement and she accepted the payment and has not, until to date, made any tender to pay back the money she received in terms of the agreement.
Absolution of the instance:
Mr Venter submitted that having heard the evidence presented by the Applicant, the Court cannot reasonably find for the Applicant as Ms Moseleni conceded that she has knowledge of the contents of the agreement, there was consensus on the terms of the agreement, she received payment in terms of the agreement and never tendered to pay back the money she so received.
Mr Venter further submitted that it is imperative for the Applicant to demonstrate the grounds for duress as she raises it as a reason why the agreement should be invalid and she should be able to claim relief from this Court for reasons related to her dismissal. He referred to the case of Arend v Astra Furnishers and requested that the principles laid down in this case be followed and applied.
Mr Venter submitted that it was simply not true that the Applicant had no other option but to sign the agreement as she could have told the Respondent that she wanted to continue with her normal duties or she could have requested to discuss the matter further or could have made more proposals on how to resolve the matter. She did none of that but merely signed the agreement, as it was the best way for her to deal with the matter.
It was submitted that the Applicant conceded the Respondent’s defence and that the agreement is valid. There was a compromise entered into between the Applicant and the Respondent and she failed to satisfy the basic requirements of duress.
Mr Ford opposed the application for absolution from the instance.
Mr Ford submitted that the Respondent views the Applicant’s case from one angle only to wit ‘duress’ and he emphasized that the Applicant relies on five grounds why the agreement is in fact invalid. Those grounds are duress, coercion, the agreement was contra public policy considerations, the Applicant lacked sound judgment and concentration due to her physical condition and the agreement is contra the provisions of section 142A of the Labour Relations Act.
Mr Ford submitted that the Applicant relied on vis compulsiva and she was not denying that she signed the contract. Her case is that she was not well when she signed the agreement and she did not so out of her free will as her free will was interfered with. Mr Ford submitted that the test is whether the Applicant signed the agreement voluntarily or whether she was coerced
It was further submitted by Mr Ford that the Applicant requested that she be given light duty and alternatively suggested that she be granted leave, but Mr Campbell denied these requests and pressurised her to sign the agreement.
The Applicant made a positive claim and the Respondent has to answer to that and the application for absolution from the instance should be refused.
In an application for absolution from the instance at the close of the Applicant’s case the test to be applied is not whether the evidence led by the Applicant establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might find for the Applicant. This implies that the Applicant has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim in order to survive absolution because without such evidence no court could find for the Applicant1.
This is the test I have to apply in determining the point in limine. Did the Applicant adduce evidence relating to all the elements of her claim that the agreement is indeed invalid as it was signed under duress and coercion and contra public policy and therefore she did not compromise her claim and waived her rights to pursue an automatically unfair dismissal claim before this Court?
It is common cause that the agreement signed and entered into by the Applicant and Respondent on 17 December 2010 provided that ‘This agreement is in full and final settlement of all disputes between the parties either as a result of the employment or the termination thereof.’
Ms Moseleni testified that she read, considered and signed the agreement and she understood it to be a settlement. She agreed that she compromised all the issues she had when she signed the agreement.
In SA Municipal Workers Union and others v City of Johannesburg Metropolitan Municipality2the Court considered the nature of an agreement and held that:
‘An agreement more often is a product of compromise between two or more parties. In most cases, it is embodied in a written document which records the compromise made and is held up as an enforceable deal. The written agreement is therefore conclusive as to the rights and obligations of the parties…’
A contract or agreement may however be vitiated by duress as intimidation or improper pressure renders the consent of the party subjected to duress no true consent. Where a person seeks to set aside a contract or resist the enforcement of the contract on the grounds of duress, the principles relating to duress as set out in Arend and Another v Astra Furnishers (Pty) Ltd3should be considered. The Court held that the following elements should be established:
‘(i) The fear must be a reasonable one;
(ii) It must be caused by the threat of some considerable evil to the person concerned or his family;
(iv) The threat or intimidation must be unlawful or contra bonos mores;
(v) The moral pressure used must have caused damage.’
In Buthelezi v Liberty Group Ltd4this Court accepted the principles laid down in the Arend matter and held that:
‘Is the settlement agreement valid and binding between the parties? If yes cadit quaestio. It is correct as submitted by the respondent's representative that as a general rule a person is bound by the terms of a signed agreement - the caveat rule. The rule applies even where the signatory has not read the agreement. …
A party seeking to resile from the agreement has to prove that the agreement is not binding on him or her.
..A party seeking to raise duress, like the applicant before me, must allege and prove a threat of considerable evil to the person or his family which induced fear, that the fear was reasonable, that the threat was imminent or inevitable, that the threat was unlawful and that the contract was concluded as a result of a threat (Arend v Astra Furnishers (Pty) Ltd).’
The Applicant testified that she signed the agreement because she knew the Respondent ‘no longer wanted her’. Nowhere in her testimony did she mention any threat whatsoever, nor did she adduce any evidence that she was pressurised to sign the agreement. In fact, she conceded that she was not threatened or intimidated and her knowledge or perception that the Respondent no longer wanted her does not constitute a threat or intimidation. Ms Moseleni did not tell this Court what the Respondent did to make her feel that she was no longer wanted, apart from handing her the agreement.
In my view the Applicant had an option. A person who is under threat will ordinarily be without an option. Although the Applicant paints a picture that she had no option, she was not herself and still recovering from illness, the evidence proves otherwise. The Applicant had the option to reject the agreement and to refuse to sign it, she had the option to tell the Respondent that she wanted to resume her normal duties or that she was prepared to take unpaid leave or that she wanted to discuss the matter further or any other alternative that she could have proposed to her employer. She was even advised by her husband to discuss the matter further and not to sign the agreement. She did nothing of the sort but signed the agreement as she accepted that it was the best way for her to deal with the matter.
I accept that the Applicant had an opportunity to read and consider the agreement. She took it home on 15 December 2010 and only signed it on 17 December 2010. The Applicant failed to show any compulsion. She was afforded an opportunity to study the agreement and it was not her evidence that she was at any point forced or threatened to sign the agreement.
One of the grounds relied on by the Applicant is that she lacked sound judgment and concentration due to her physical condition. There was no evidence before this Court to support this. The medical certificate she obtained from Dr Valli on 7 December 2010 indicated that she was fit for light duty. There was no evidence that she was incapacitated by her physical or medical condition to such an extent that her sound judgment was affected and that she lacked judgment and concentration.
Mr Venter relied on the matter of Makiwane v International Healthcare Distributors5with reference to the payment and acceptance of money to the Applicant in accordance with the terms of the agreement. In the Makiwane matter the Court dealt with the effect of an agreement where payment was effected as full and final settlement of all claims the employee might have against the employer. The Court held as follows:
‘It is common cause between the parties that the applicant has been paid all the monies set out in the settlement agreement, that he has kept such monies and has made no tender to return them to the respondent. To my mind this clearly signifies his acceptance of such monies in full and final settlement of his claims against the respondent.
Our law is trite that where a party accepts the benefits under any settlement agreement in full and final settlement of the benefits owing to him by his former employer arising from the termination of his employment relationship with such employer, and has abided by such acceptance of those benefits, he has placed himself beyond the jurisdiction of this court (see United Tobacco Co Ltd v Baudach(1997) 18 ILJ 506 (LAC)).
Similarly, in the present case I am of the view that when the applicant signed the agreement, thereby signifying his acceptance of its terms, and later accepted the benefits paid to him in terms thereof, the dispute between him and the respondent was finally settled. From that time onwards there was no live dispute between the parties (see also Spillhaus & Co (WP) Ltd v CCMA & others  BLLR 116 (LC)). There being no live dispute for this court to determine, it follows that this court has no jurisdiction to deal with this matter.’
The Applicant accepted the money paid to her and she never made any tender to pay back the monies she received, even after being questioned about it in cross-examination. The Applicant cannot challenge the validity of an agreement on the one hand and retain the benefits she received from the same agreement on the other hand. That is simply incompatible. Ms Moseleni cannot have her cake and eat it.
The Applicant did not demonstrate the requisite elements of coercion and duress. Ms Moseleni did not convince me that the agreement she entered into was contra public policy considerations, that she lacked sound judgment and concentration due to her physical condition and the agreement is contra the provisions of section 142A of the Labour Relations Act.
This is a case of a person who afterwards felt that she had made a mistake by signing or who perhaps felt pressure from her husband who never supported the idea of her signing the agreement.
In summary,the Applicant has failed to adduce such evidence that, at this stage, this Court could reasonably find that the agreement Ms Moseleni signed and which constituted a full and final settlement of the disputes between the parties, is invalid. It follows that the application for absolution from the instance should succeed.
In relation to costs, the Respondent did not seek an order for costs and after a careful consideration of all the relevant facts I have decided to make no order as to costs.