Settlement agreement: Consensual and not reviewable

2 Comments

1. 

   GilesFiles on August 17, 2015 at 7:08 pm

   Extract from the comment How far can commissioners go in persuading parties to settle at conciliation? by Prof Darcy du Toit in the Weekly Comment on IR Network published by LexisNexis today [subscription required].

   In essence, Ms Cindi claimed that she had been induced to enter into a settlement agreement which she regarded as unfair because the conciliating commissioner had told her that her claim of unfair dismissal had no prospect of success. Although the judgment does not spell it out, the result was presumably that the commissioner issued a certificate that the dispute had been settled, thus preventing Ms Cindi from pursuing any claim based on unfair dismissal to which she might have believed herself – but for the commissioner’s advice – to be entitled. The remedy she sought was apparently to have the settlement agreement reviewed and set aside in terms of section 158(1)(g) and (j) of the LRA.
   These provisions empower the Labour Court to review the performance of “any function provided for in this Act on any grounds that are permissible in law” and to “deal with all matters necessary or incidental to performing its functions in terms of this Act or any other law”.

   Did Ms Cindi have a case? Cited in her favour was the judgment in Kasipersad v CCMA & others [2002] 11 LC 1.11.36 also reported at [2003] 2 BLLR 187 (LC], where the conciliating commissioner had advised the applicant that his chances of success were “50/50” and warned him of the dire consequences of losing a case in the Labour Court. As a result he had entered into a settlement agreement in which he dropped his claim. Pillay J held that the commissioner had exceeded her powers by providing legal advice; the advisory function of the CCMA is limited to procedural issues. Furthermore, by warning the applicant of negative consequences only, the commissioner had displayed bias against him.

   . . . .

   If there is any doubt as to the Labour Court’s powers under section 158(1)(g), it also has the power under paragraph (j) to “deal with all matters necessary or incidental to performing its functions in terms of this Act” – including promotion of the right to fair labour practices and effective dispute resolution. Anything else, it would seem, would be contrary to these crucial purposes of the Act.

   That, at least, is the message of Kasipersad, which thus far remains unchallenged.

2. 

   GilesFiles on January 11, 2016 at 11:22 am

   Now reported: [2015] 12 BLLR 1207; (2015) ILJ 3080 (LC)
   BLLR Headnote:
   Review – Under section 158(1)(g) of LRA – Conduct of conciliating Commissioner preceding settlement agreement by parties not subject to review.