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Quotes from Darcy du Toit’s latest Comment Letting the law take its course on IR Network published by LexisNexis [subscription required]
QUOTE
“Law” is sometimes contrasted with “fairness”, often wrongly so. In the case of labour law, the LRA and other statutes were designed precisely to incorporate fairness. Of course, legislation does not cover every aspect of employment; important areas remain subject to the law of contract. But the law of contract is not necessarily unfair, and in many instances fairness is best served by applying it correctly.
Take the case of Minister of Justice and Constitutional Development v Myburgh & Others (Case no: JA 46/15, undated), where the Labour Appeal Court had to decide on the enforceability of a settlement agreement. The employees in this matter were state law advisers who had claimed sums of money from their employer which, they alleged, was due in terms of their contracts of employment. In the course of the litigation the State Attorney, acting for the employer, proposed a settlement to the employees which stated, among other things, that the agreement had to be signed by the employer.
. . . . .
Thus, there was no evidence that an agreement had been entered into. And, even if a verbal agreement had existed, it could not have been binding in a situation where – as in the present case – the parties had intended their agreement to be in writing. The State Attorney had done no more than drawing up a draft agreement for signature, which had never materialised. The need for signature also made clear that the State Attorney had not been given authority to conclude an agreement on the employer’s behalf. The employees’ claim therefore had to fail.
Is this a case where the strict application of contractual principles clashed with the requirements of fairness?
This is by no means evident. The “fairness” of dismissing the employees’ case could only be judged in light of the merits of their original contractual claim. But it was they who chose not to pursue this claim and, instead, to rely on a compromise offer by the employer which they had initially rejected and only belatedly purported to accept as an alternative to arguing their case. Whether fairness might have weighed in their favour was not a question which the court would have been able to decide.
UNQUOTE