EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
PW359/2013
APPEAL OF:
Michael Angland
against the recommendation of the Rights Commissioner in the case of:
DHL Supply Chain (Ireland) Limited
under
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Mr R. Murphy
Ms E. Brezina
heard this appeal at Dublin on 30th September 2015
Representation:
Appellant: Mr Des Courtney, SIPTU, 9th Floor, Liberty Hall, Eden Quay, Dublin 1
Respondent : Mr David Farrell IBEC Ltd., 84/86 Lr. Baggot Street, Dublin 2
Determination on Preliminary Issue
The Appellant’s employment with the Respondent company terminated on the 29th June 2012 due to redundancy. A ‘Compromise Settlement Agreement’ was signed on the 1st June 2012 under which the Appellant (employee) received a redundancy gross sum of €102,273.82 (‘the Severance Payment’). Under the ‘Compromise Settlement Agreement’ the Appellant relinquished his rights under several Acts which were set out in the body of the Agreement, including the Payment of Wages Act 1991. The Agreement also stipulated that the payment of the severance payment was in full and final settlement of all claims against the respondent howsoever arising.
The Appellant claims that he is entitled to a payment of €3,303.08 under the Payment of Wages Act 1991.
The Severance Agreement states inter alia:
“The employee has given (sic) the opportunity to take independent advice from a Solicitor or SIPTU Official, prior to signing this Agreement and understands the full meaning and effect of same”.
The respondent contends that the EAT does not have jurisdiction to hear the claim because the appellant has signed a Severance Agreement which precludes him from bringing a case before the Tribunal.
The Tribunal considered the law on this matter.
In Hurley v the Royal Yacht Club [1997] ELR 225 Buckley J.in the Circuit Court considered a waiver clause in an agreement in the context of the Unfair Dismissals Acts and having concluded that there must be informed consent to such a waiver later in his judgement set out what this requires:
“I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in this case, would have been legal advice. In the absence of such advice I find the agreement to be void”
This statement of the law was applied by Smyth J. the High Court in Sunday Newspapers Ltd vKinsella and Brady [2008] ELR 53.
The test set out in Hurley is a twofold one. Notwithstanding that the Payment of Wages Act forms the basis of the claimant’s case was specified in the purported waiver clause it is not sufficient to deny the Tribunal jurisdiction as the second element of the test in Hurley had not been satisfied. In what is frequently a traumatic situation for an employee it is vital that he be advised to seek appropriate advice.
The requirement that ‘informed consent’ be obtained is not satisfied by incorporating a paragraph into a Severance Agreement that the Appellant (Employee) ‘was given the opportunity to take independent advice from a Solicitor or ….Union official’.
There is no evidence that the appellant took appropriate advice from a Solicitor or Union Official.
Accordingly, the Tribunal finds that it has jurisdiction to hear this appeal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
CHAIRMAN