Mutual Separation Agreements: Caveat Subscriptor

In many cases, and for various reasons, an employer and employee will choose to conclude a mutual separation agreement, bringing to an end an employment relationship by way of mutual consent, rather than unilateral termination.

Both employers and employees should take note of the conclusions in the recent case of Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Limited and Another (JA 95-2014) [2016] ZALAC 2 (3 February 2016), in which the Labour Appeal Court considered the validity of mutual separation agreements in South Africa and re-affirmed the law in this regard.

In this case, Muyiwa Gbenga-Oluwatoye ("the employee"), a Nigerian citizen, was in the employ of Unilever in Dubai. In January 2013, he was approached by a recruitment agent with an opportunity in South Africa, which he did not take up. In February 2013, he left Unilever and took up employment at Standard Chartered Bank in Dubai. Shortly thereafter, the employee contacted the aforementioned