UD581/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Angela Thompson       -claimant

                                                                                                                           UD581/2012

against

County Wexford Education Centre   -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Browne

                    Mr N. Dowling

heard this claim at Wexford on 25th February 2014

Representation:

Claimant:         Ms. Caragh Cunniffe B.L. instructed by McDonald Solicitors,

7 Lower Rowe Street, Wexford

Respondent:    Mr. Anthony H Ensor, Ensor O'Connor, Solicitors,

4 Court Street, Enniscorthy, Co Wexford

Preliminary Issue:

It was the respondent’s case that the Tribunal did not have jurisdiction to hear the claim in circumstances where a signed severance agreement existed as a full and final settlement of any claims.

The claimant stated in evidence that she attended a meeting with the respondent’s management committee on the 14^th September 2011. This was a short meeting at which the claimant was informed that her position was being made redundant. The claimant was given a severance agreement document, told to take a week off work and take legal advice. The documents were not reviewed with the claimant at this meeting. The claimant understood that if she did not sign the documents she would not even receive her entitlements. At the time she signed the documents she was satisfied that her position was redundant but later she understood it came to her knowledge that the position still existed.

The severance agreement allowed for the claimant to enter the name of a person from whom she had sought independent legal advice. The claimant entered a name (BH) in this section and returned the severance agreement to the respondent. The claimant did speak to (BH) on the telephone about the redundancy but not about the ex-gratia part of the agreement. The claimant also spoke with her union representative when she received the documents. Having returned the agreement the claimant requested not to have to work the notice period and the respondent agreed to this. The claimant commenced new employment on the 19^th September. She had sought this working following the meeting on the 14^th September. The claimant gave evidence as to her state of mind at this time.

The determination of the Tribunal was as follows:

There is nothing to prevent parties entering into a binding compromised agreement. In this instance is the employer entitled to rely on the severance agreement? In considering this matter the Tribunal considered such issues as:

• was the claimant’s consent informed
• is the agreement clear as to the rights (and legislation) waived
• was there written advice that the employee should take independent legal advice
• was there consideration
• any issues of capacity raised

Capacity:

(a)    There was no evidence that the employer was advised or aware that the claimant

was labouring under incapacity.

(b) The agreement itself indicated that the claimant consulted BH which would

certainly reassure an employer.

(c)    The evidence is that the claimant is of full capacity as she negotiated for and took up a new role in a matter of days.

Consideration:

(a)    Yes there was consideration.

(b)   The adequacy of that consideration is not an issue against a background where the claimant had informed the employer that she had taken independent legal advice.

Advised to take independent legal advice:

(a)    The claimant was not only verbally advised but also in writing.

(b)   The claimant herself informed the employer that she had taken independent legal advice.

The Tribunal believes that the agreement is clear even at a simple reading. All indications are that the consent of the claimant when signing the document was informed as she had spoken both with the union when she received the documentation and with BH, and the employer was entitled to believe this was the case. The Tribunal therefore finds it does not have jurisdiction to hear the case. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)