The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2011-189
PARTIES
Ilona Kasztelan
AND
Fingal County Council
File reference: EE/2008/672
Date of issue: 6 October 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Marital Status - Promotion - Victimisation - settlement - jurisdiction
1. DISPUTE
1.1. This dispute concerns a claim by Ms Ilona Kasztelan that she was discriminated against by Fingal County Council on the grounds of marital status contrary to section 6 of the Employment Equality Acts in relation to promotion contrary to section 8 of the Acts and that she was victimised in accordance with section 74 (2) of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 13 October 2008 under the Employment Equality Acts. On 9 March 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both parties. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 2 September 2011.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started working for the respondent on 18 January 2006 as an Executive Engineer, on a five year contract.
2.2. She submits that she twice applied for permanent positions and was unsuccessful. One of the posts was offered to someone who started working in a similar position after the complainant. She submits that after she made these applications she noticed people who were trying to damage her work and personal reputation.
2.3. She also submits that behind her back people were describing her as being on 'disability'. She reported this to Human Resources but they said they didn't know anything and they did not think she was disabled. Although she was not asked she supplied a medical report from a psychiatrist confirming she was well.
2.4. The complainant submits that she was paid less than others with less seniority and she was not paid for after-hours call outs. She was told she could take time off in lieu but she says this was not possible because of her workload.
2.5. The complainant submits that her concerns were met with negative reports and disciplinary warnings. She was dismissed after making these reports.
2.6. The complainant submits that she is divorced with two children and she was not treated the same as if she were a married woman. Her husband lives in Poland and never visited Ireland.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the complainant was employed as a temporary Executive Engineer from 18 January 2006 on a five year contract. On 2 October 2008 her employment was terminated.
3.2. The respondent submits that on 23 February 2009 there was a Rights Commissioner hearing into a claim the complainant made under the Unfair Dismissals Acts. With the assistance of the Rights Commissioner a financial settlement was drawn up and signed by the complainant, her representative and the respondent. The agreement states the respondent make a settlement offer "as a termination payment to mark the resolution of the matter in full and final settlement of all matters in dispute between the parties regarding the employment and its termination.
3) Ilona Kasztelan accepts the offer in full and final settlement of all matters relating to the employment and its termination and withdraws the complaint under the Unfair Dismissals Act".
3.3 The respondent submits that this claim under the Employment Equality Acts should be dismissed as it is within the meaning of the settlement agreement.
3.4 The respondent submits that the complainant twice applied for a permanent position as an Executive Engineer; firstly in September 2006 and secondly in June 2007. She was advised of the outcome of her second interview on 20 June 2007. This is well over one year before she made this claim to the Equality Tribunal which is therefore out of time in accordance with section 77 (5) of the Acts.
3.5 The respondent submits that they had difficulty in understanding the nature of the claims of discrimination made by the complainant but deny that she was treated in a discriminatory manner at any time whilst in their employment.
4. PRELIMINARY ISSUE
4.1. Before I can consider the substantive issues I have to consider whether the settlement agreement means that I do not have jurisdiction to investigate this claim. The Labour Court set out an approach to settlements, in Sunday World Newspapers Limited and Steven Kinsella & Luke Bradley, Determination No. FTD066 said:
"It is clear from the authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is, however, often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, and an attempt to exclude or limit the Act, which is void and of no effect. The case law indicates that the following considerations are relevant in distinguishing the former from the latter: -
1. The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.
2. An agreement to wave statutory rights must be supported by adequate consideration.
3. The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.
4. The waiver should list the various Acts being taken into account.
5. The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.
6. It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver."
4.2. The settlement agreement was drafted with the assistance of a Rights Commissioner who had been due to hear a claim under the Unfair Dismissals Act. The complainant was represented on the day by a solicitor and received the settlement payment "without prejudice or liability". The respondent contends that the settlement was clearly intended to include all claims regarding the complainant's employment, including this claim before the Equality Tribunal. The complainant contended that she considered the settlement only to be in relation to her unfair dismissal claim.
4.3. The settlement agreement appears to be clear in stating the payment was accepted by the complainant in "full and final settlement of all matters relating to the employment and its termination". I have to decide if the complainant signed the settlement agreement with the benefit of "informed consent" or if the complainant had an honest belief that the settlement only dealt with the unfair dismissals claim that was due to be heard by the Rights Commissioner. The settlement specifically mentions that the complainant will withdraw her complaint under the Unfair Dismissals Act but makes no mention of any other legislation, including the Employment Equality Acts. At the hearing the then HR Manager for the respondent confirmed that the Equality Tribunal claim was not mentioned during discussions on the settlement agreement. After the agreement was signed he says that he said something to the effect that he presumed that 'this puts an end to the Equality Tribunal claim'. He remembers the complainant's representative responding to the effect that 'we're not talking about that now'.
4.4. The complainant was legally represented throughout the discussions on the settlement agreement. If there was any doubt that "all matters relating to the employment and its termination" did not include this claim then that should have been clarified by the complainant's representative. Clearly the claim under the "termination" part of the settlement refers to the Unfair Dismissals Act claim. Ideally the settlement would have specifically mentioned all claims, including that under the Employment Equality Acts. However, given the number of pieces of employment legislation it seems reasonable that they can be included in the catch-all "all matters relating to the employment and its termination" If the settlement was only intended to relate to the unfair dismissals claim then it would have stated that. It also included "all matters relating to the employment" and I take this to refer to this claim as, as far as I am aware, there were no other claims.
4.5. Accordingly, I find that the settlement signed by the complainant was "a genuine bargain to settle or dispose of a claim, which is lawful and enforceable" and that includes this claim under the Employment Equality Acts. I find that this claim is not validly before me.
5. DECISION
I have investigated the above complainant and find that I have no jurisdiction to investigate this claim.
____________________
Hugh Lonsdale
Equality Officer
6 October 2011