Is there a difference between an organ of state, such as a municipality, offering employment to settle a claim and an employer in an unfair dismissal dispute offering such a settlement?
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In Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG), the following approach was adopted:
- the municipality argued that it was ‘not really’ making an appointment but legitimately settling a claim
- the high court held that it was not correct that the municipality could rely on a transfer policy, seeing that it was only applicable to employees in the employ of the municipality and Erasmus (seeing that she had resigned) was not an employee at the stage the offer was made – this is different from settling a dismissal matter by means of reinstatement because reinstatement does not entail the conclusion of a fresh contract of employment
- furthermore, it was held that an organ of state is not entitled to fill vacancies for ulterior purposes, such as the settling of litigation
- consequently, it was further held that an agreement reached by Erasmus to fill a vacancy would not pass constitutional muster, would be contrary to public policy and thus unenforceable (Corruption Watch NPC and Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC and Others 2018 (10) BCLR 1179 (CC), at paragraph [29])
