EQUALITY OFFICER’S DECISION No. DEC-E2015-054
PARTIES
A CHEF
Represented by SIPTU
-v-
A HOSPITAL
File No. EE/2012/476
Date issued: 27 July, 2015
Background
The Claimant is employed as a Chef. She has claimed that she has been discriminated on grounds of race, religion, disability, harassment and salary.
The complaint was referred under the Acts to the Director of the Equality Tribunal on 11th September 2012. In accordance with his powers under Sec 75 of the Act, the Head of Employment Equality an Equal Status delegated the case on 27th February 2015 to me Eugene Hanly, an Equality Officer, for investigation and decision. Submissions were received from both parties. As required by Sec 79 (1) of the Acts a hearing was held on 25th June 2015.
In reaching a decision I have taken into account the written and oral submissions of both parties.
Preliminary Point – Jurisdiction
Employer’s Position
The employer’s representative stated that a final settlement was agreed and signed on 17th February 2014. It stated that the Claimant “accepted the sum of (details supplied at the hearing) as a final settlement of all claims arising from my employment both at common law and under statute.
I understand that this sum is inclusive of any entitlement or claims under the Safety, Health and Welfare at Work Act 2005, Payment of Wages Act 1991, the Industrial Relations Acts 1969-2004, the Organisation of Working Time Act 1997, the Employment Equality Acts 1998 -2004 and all other relevant legislation.
This agreement was accepted following a time to reflect on its contents and to take professional advice. She and her SIPTU Official signed their acceptance of this agreement. The consideration was paid and accepted. This matter has now been concluded. She does not have the right to take a claim under the Employment Equality Acts. This matter is now closed and the Equality Officer does not have jurisdiction to deal with this case.
Claimant’s Position
The Claimants representative stated that SIPTU was representing her on the matter under the Health & Safety at Work Act. She had her own solicitor dealing with the equality matter. SIPTU never represented her in respect of the equality issue. The consideration that was agreed was in respect of a complaint under the Safety, Health and Welfare at Work Act 2005 and in particular a loss of earnings claim. This is confirmed by the employer’s letter dated 6th February 2014, which provides for the payment of the exact amount including cents for the Safety, Health and Welfare at Work Act claim as the final settlement for all matters. While it is accepted that both the Claimant and the SIPTU representative signed the settlement terms, the reference to equality was “slipped in” by the employer. That settlement agreement was in respect of the Safety, Health & Welfare at Work Act only
The Equality Officer has jurisdiction to hear this complaint.
Findings
I note the wording of the settlement agreement.
I note that it states, “accepted the sum of (details supplied at the hearing) as a final settlement of all claims arising from my employment both at common law and under statute.
I note that it also stated, “I understand that this sum is inclusive of any entitlement or claims under the Safety, Health and Welfare at Work Act 2005, Payment of Wages Act 1991, the Industrial Relations Acts 1969-2004, the Organisation of Working Time Act 1997, the Employment Equality Acts 1998 -2004 and all other relevant legislation.
I note that it also contained the following: “I, confirm that this document has been read over and explained to me prior to my signing same, that I have been given the opportunity to seek legal or trade union advice prior to my signing same and that accordingly I both understand and accept the contents thereof in full.
I find that the only aspect of this settlement agreement that was somewhat confusing was the inclusion of the following: I (Claimant) wish to withdraw my complaint under the Safety, Health and Welfare at Work Act 2005, which I submitted to the Labour Relations Commission”. There was no mention of the other Acts previously referred to in the agreement.
I note that in the High Court case Sunday Newspapers Ltd v Kinsella & Bradley (2008 19 E.L.R. 53) it stated, “in the instant case, the agreement is expressly stated to be in full and final settlement and that means what it says …there was some meaningful discussion and negotiation… professional advice of an appropriate character before the agreement was signed”..
The Supreme Court in Doran v Thompson [1978] IR223 “Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly , and the other party has acted on it by altering his position to his detriment , it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and the he may be restrained in equity from acting inconsistently with such promise or assurance”.
I find that “a final settlement “means just that, it is final.
I find that the settlement was subsequent to the presentation of the claim to the Equality Tribunal.
I find that she had the benefit of professional representation.
I find that she had time to reflect on the terms of this agreement.
I find that she signed an agreement which explicitly states that it is a final agreement and that it encompasses the Employment Equality Act
I find that she cannot now ignore the obligations placed upon her by signing that agreement.
Decision of the Equality Officer
I hereby make the following decision in accordance with Sec 79(6) of the Acts.
I have decided that I do not have jurisdiction to hear this case.
________________________
Eugene Hanly
Equality Officer
27 July, 2015