THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-033
PARTIES
John Whelan
-V-
Dublin City Council
(represented by Byrne Wallace Solicitors)
File Reference: EE/2005/047
Date of Issue: 28th February 2011
Decision DEC - E2011-033
John Whelan
-V-
Dublin City Council
(represented by Byrne Wallace Solicitors)
Keywords
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment , - Section 6(2)(g) - disability, Section 8- conditions of employment, Section 8(6)-discriminatory dismissal, status of voluntary severance package- is the complaint compromised?
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the disability ground, in terms of Sections 6(1), and 6(2) (g) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to conditions of employment and dismissal. The complainant also claimed that the respondent failed to provide him with reasonable accommodation.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 15th February 2005 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008, the Director delegated the case on 16th July, 2010 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 7th April 2009, and from the respondent on the 17th June 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 20th January, 2011
3. Summary of the Complainant's Case
3.1 The complainant has a visual disability and commenced employment as a telephonist with the respondent in 1993. He worked in various offices and was transferred to an office of the respondent in Stanley Street around August 2002. An incident arose at work in February 2004 and the complainant was accused of committing an act of misconduct. He was placed on special leave with pay. He was called to a disciplinary hearing where he was represented by an Assistant General Secretary of IMPACT union. The meeting was conducted by Mr. Jim Lynch who worked in the Council as an Industrial Relations Administrator. As a result of this meeting the complainant was issued with a letter of dismissal and he was informed of his right to appeal. The appeal was not proceeded with because the complainant contacted his union official to negotiate a severance deal with the respondent. The complainant accepted that his union official informed him about the respondent offer and explained the contents of the agreement to him. The complainant said that he signed the agreement on the 27th July 2004 in the Council offices in the presence of his union official and Mr. Lynch who also countersigned the severance agreement.
3.2 The complainant submitted that he was forced into signing the agreement by the Council. He stated that there were telephone calls made to his home urging him to take the severance deal. He said that he knew that there was a strong possibility that if he did not take the settlement terms he would be dismissed and this would have impacted on his ability to retain his recently acquired home.
4 Respondent's Case
4.1 The respondent's case is that the complainant entered into and signed a voluntary severance agreement on the 27th July 2004 which provided for inter alia: I John Whelan .... accept the terms of the severance package as set below in full and final settlement of all matters in relation to my employment" . It was submitted that this is a binding settlement agreement entered into by the complainant on the termination of his employment with the Council which arose following a recommendation that the complainant's employment should be terminated. This recommendation arose following a finding of gross misconduct at a disciplinary hearing which was held in accordance with the disciplinary procedures. The complainant was informed of his right to appeal. He submitted an appeal, but before the appeal hearing he entered into negotiations on a severance package. He was represented at all times by a fulltime IMPACT official and all the negotiations were conducted through him. The complainant attended the Council offices on the 27th July 2004 and signed the voluntary severance agreement in the presence of his union official. Mr Jim Lynch who conducted the negotiations said that the complainant was not forced to sign the agreement and expressed no reservation on the day about its contents. In order to facilitate the complainant's disability, he produced a copy of the agreement in large print and the complainant signed it without raising any issue with his union official or with Mr. Lynch who also signed it.
4.2 The respondent's solicitor submitted that the complainant entered into a binding agreement with the respondent and resolved all matters in relation to his employment. He had the benefit of advice from his union and it is clear that all the concerns raised by him were within his knowledge at the time of the negotiations. The respondent submitted that the complainant is bound by the agreement, which comprises the statutory rights he is now invoking under before the Tribunal, and therefore his claim should be struck out. The respondent further submitted that the matters before the Equality Tribunal were matters that must have been within the knowledge of the complainant at the time he entered into the agreement following advice from his union.
5. Conclusions of the Equality Officer
5.1 The first matter I have to consider relates to the severance agreement entered into by the complainant with the respondent. The severance agreement which provides the complainant with a pension and a lump sum was signed by both parties and stated that it was "in full and final settlement of all matter in relation to my employment". I have to consider whether this agreement precludes the complainant from taking a case under the Acts in relation to his conditions of employment and his dismissal.
5.2 The complainant entered into the agreement following a recommendation to dismiss him after a disciplinary hearing and a finding of gross misconduct. The complainant did not avail of his right to appeal, but through his union representative entered into a course of negotiations with the company which lasted about 2 months and concluded with the signing of the severance agreement in or about a month later on the 27th of July 2004. I am satisfied from the evidence outlining the sequence of events between the initiation of the talks in relation to the severance package and the signing of the agreement that the respondent put no pressure on the complainant to accept the package. I am also satisfied from the evidence of both parties that the complainant was fully advised by his union representative in relation to the agreement. I note that the complainant said that he had several conversations with his union official and when he was not satisfied with the terms on offer originally; his union went back to the company with his concerns. I am satisfied that the complainant knew he had a right of appeal against the recommendation to dismiss him and that if he did not accept the severance offer he could exercise that right. I am also satisfied that he was mindful of the fact that if he lost the appeal he could be dismissed and would no longer have the option of the severance package.
5.3 In considering this case I have taken into account the jurisprudence of the High Court Judgment of Smyth J in the case of Sunday Newspapers -v- Kinsella & Anor [2007] IEHC 324. The case concerned a severance agreement purporting to compromise entitlements under the Protection of Employees (Fixed Terms Workers) Act 2003. Smyth J. held that the question of whether not statutory rights have been compromised is a matter for the proper construction of the agreement itself and that informed consent and appropriate advice is crucial if the compromise is to be upheld. He went on to say that where an employee is being offered a severance package he or she is entitled to be advised of his or her entitlements under the employment protection legislation and any agreement should list the various applicable statutes or at least make it clear that the same has been taken into account by the employee. In applying the jurisprudence to the case in hand, I am satisfied that the complainant had the advice of his union representative during the course of the negotiations with the respondent. In his evidence he accepted that his union explained the Agreement to him. While the agreement does not explicitly cite the Employment Equality Acts it does provide that the severance package was in was in full and final settlement of all matters in relation to the employment.
5.4 Having examined the course of the negotiations between the parties before signing of the agreement, I am satisfied from the complainant's own evidence that his consent to the agreement was informed and that his union representative had advised him of the various options open to him. I note that the complainant was of the opinion that an appeal from the recommendation that he should be dismissed would not be successful and he was worried that if he was dismissed he could lose his new home. It is clear from the evidence that the complainant voluntarily entered the negotiations to seek a deal for the ending of his employment in the knowledge that if he was dismissed on appeal such a voluntary severance package would not be available to him. I am satisfied when the complainant signed the voluntary severance agreement, which provided that in return for a lump sum and a pension he accepted the terms of the severance in full and final settlement of all matters in relation to his employment with the Council and his consent to such an agreement was fully informed. I find therefore that the severance package as signed by the parties compromises any claim the complainant has under the Employment Equality Acts and precludes me from hearing the case.
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Marian Duffy
Equality Officer
28th February 2011