It sometimes happens that employers and employees sign a mutually agreed separation agreement wherein the employee contractually agrees not to refer to the CCMA a dispute arising out of the employee’s termination. It is already common law that, despite such a clause, the CCMA will still accept a referral of an unfair dismissal dispute lodged by the employee. However, that having been said, could the employer successfully sue the employee for breach of a separation agreement that specifies that, if the employee refers the matter to the CCMA in breach of his undertaking not to do so, he will be liable for damages and costs?
If I was representing the employee I would argue as follows.
• The definition of “dispute” includes an “alleged dispute”
• The employee has the right to refer any dispute or alleged dispute to the CCMA.
• The clause in the contract which prohibits the employee from referring his dispute to the CCMA is unlawful in terms of section 5(3) of the LRA and therefore it is unenforceable.