Green v Hartog (C88/2016) [2017] ZALCCT 40 (5 September 2017)

Green v Hartog (C88/2016) [2017] ZALCCT 40 (5 September 2017)

The court found, on a balance of probabilities, that the applicant was not dismissed but agreed to retire rather than face disciplinary action. The evidence showed that she signed the amended contract containing a retirement age clause in the presence of witnesses and initialled every page. There was no credible evidence of misrepresentation or mistake by the respondent. The principle of caveat subscriptor applied, binding the applicant to the contract she signed. As there was no dismissal, the claim of automatically unfair dismissal under section 187(1)(f) of the Labour Relations Act did not arise. The claim was dismissed with costs.

Citation
[2017] ZALCCT 40
Parties
Applicant: Johanna Green; Respondent: Dr Frikkie Hartog
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
5 September 2017
Case Number
C88/2016
Procedural Posture
Labour Dismissal Application / Trial
Outcome
Claim dismissed with costs.
Judges
Steenkamp
Legal Topics
Automatically Unfair Dismissal, Age Discrimination, Retirement Agreement, Disciplinary Procedure, Caveat Subscriptor, Quasi Mutual Assent
Labour Law Automatically Unfair Dismissal Age Discrimination Retirement Agreement Disciplinary Procedure Caveat Subscriptor Quasi Mutual Assent

Case Brief

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Parties

Johanna Green

Applicant

Dr Frikkie Hartog

Respondent

Procedural Posture

Labour Dismissal Application / Trial

Legal Issues

  1. 1 Was the applicant dismissed or did she agree to retire voluntarily.
  2. 2 Does the retirement agreement constitute an automatically unfair dismissal under section 187(1)(f) of the Labour Relations Act.
  3. 3 Was there any misrepresentation or mistake regarding the retirement clause in the contract.

Ratio Decidendi

The court found, on a balance of probabilities, that the applicant was not dismissed but agreed to retire rather than face disciplinary action. The evidence showed that she signed the amended contract containing a retirement age clause in the presence of witnesses and initialled every page. There was no credible evidence of misrepresentation or mistake by the respondent. The principle of caveat subscriptor applied, binding the applicant to the contract she signed. As there was no dismissal, the claim of automatically unfair dismissal under section 187(1)(f) of the Labour Relations Act did not arise. The claim was dismissed with costs.

Court Disposition

Claim dismissed with costs.

Orders

  • The claim is dismissed with costs.