EDA1626

This matter came before the Court by way of an appeal brought by Mr Raymond Maguire (“the Complainant”) against a decision of an Equality Officer/Adjudication Officer (DEC-E2016-049) dated 14 March 2016. Mr Maguire’s notice of appeal was received by the Court on 22 April 2016. The Court heard the appeal on 27 July 2016.

The Complaint

The Complainant was employed by RTE (“the Respondent”) for some 33 years until he voluntarily chose to avail himself of an “Early Retirement and Redundancy Facility for Staff Age 55 and Over” (hereafter “the Scheme”) which was offered by the Respondent to eligible employees in April 2012. Approximately 100 employees of the Respondent availed themselves of the Scheme. The Complainant’s employment ended on 17 December 2012 although he had requested and been refused an extension of his period of employment until March 2013 in order to oversee the completion of two significant projects he had been managing at the time.

The terms of the Scheme as offered in 2012 specified, inter alia, that anyone who wished to avail themselves of it would have to do so prior to December 2012. The Complainant applied for the Scheme on 28 May 2012. He received a detailed written offer of severance terms on 27 August 2012 which he signed and returned on 12 September 2012.

The Complainant alleges that five former female colleagues were permitted to avail themselves of the Scheme’s terms in 2013 despite the aforementioned provision that stipulated that the Scheme was only available to those employees whose employment was to terminate on or before 31 December 2012. He submits that no male colleague was permitted to access the Scheme in 2013. The Complainant’s case is that, as a consequence of the alleged more favourable treatment received by his former female colleagues, he has been discriminated against on the gender ground, contrary to the Employment Equality Act 1998 (“the Act”) to a value of up to €76,500.00.

The Respondent denies that that any female colleague was permitted to avail herself of the Scheme after 31 December 2012. It accepts that one former female colleague who did benefit from the Scheme (and retired under the Scheme in 2012) was offered and accepted a three-month fixed-term contract in 2013. It also confirmed in its written submission to the Court that one male colleague retired under the Scheme in 2013. However, the Respondent raised a number of preliminary issues that go to the Court’s jurisdiction in this matter.

Preliminary Issues

In its advance written submission to the Court, the Respondent raised a number of preliminary issues, as follows:

(a) Time Limit: Section 77(5)(a) of the Act prescribes that a claim for redress for discrimination must be initiated within six months of the most recent occurrence of the alleged act of discrimination. The Complainant retired under the Scheme on 17 December 2012. The Respondent submits that – in so far as the Complainant claims he was treated less favourably by the Respondent’s decision not to defer his retirement to a later date – the date of his retirement is the latest date on which the alleged discrimination could have occurred. The Complainant did not refer his Complaint to the (then) Equality Tribunal until 14 March 2014, which is manifestly outside the relevant timeframe for seeking redress permitted by the Act. The Respondent further submits that more favourable treatment of others (which it denies) cannot be an act of discrimination against the Complainant so as to revive any expired time limit.

(b) Waiver: The Complainant signed a comprehensive waiver when, on 27 August 2012, he accepted the terms of the written offer made to him under the Scheme by the Respondent. The Respondent submits that the Complainant, by virtue of having signed the aforementioned waiver, is estopped from bringing and maintaining his complaint under the Act.

Waiver Agreement

It seems to the Court, that as a matter of logic, the second preliminary issue raised in the Respondent’s submission falls to be considered by the Court ahead of any other preliminary or substantive issues that may need to be considered by it in dealing with this appeal.

The wording of the waiver signed by the Complainant is as follows:

• “I irrevocably accept the offer set out above. I acknowledge that by doing so I am releasing RTE from all claims under statute, contract or common law, arising out of my employment with RTE and termination of that employment. I have had the opportunity to take appropriate professional advice on this offer and I accept it of my own free will and with full knowledge of its meaning and effect.”

(i) There is an inherent “technical ambiguity” in the waiver which should be construed against the Respondent, applying the rule ofcontra proferentem;

(ii) The waiver does not expressly list those employment enactments which the waiver was intended to apply to. In this regard, Counsel refers to the judgment of the High Court inSunday Newspapers Limited v Kinsella[2008] ELR 53;

(iii) The right being asserted by the Complainant is a “higher order right” derived ultimately from an EU Directive and consequently there was a more onerous obligation on the Respondent to ensure that the Complainant fully understood the import of that right before he purported to waive it and the Respondent had manifestly failed in this regard. Counsel referred the Court to a passage from page 107 of Murnaghan J’s judgment inMurphy v Stewart[1973] IR 97 in support of this argument.

The Respondent’s solicitor, on the other hand, submitted that there was no ambiguity, technical or otherwise, in the wording of the waiver agreement signed by the Complainant. The Complainant was a manager of some considerable experience and he signed the waiver having voluntarily applied to avail himself of the scheme, after a period of two weeks to consider the offer. He was a member of the Respondent’s Managers’ Association from which he could have taken professional advice before signing the agreement. He could also, or in the alternative, – but neglected to do so – have taken legal advice before signing the waiver. The terms of the Scheme offered in 2012 were substantially the same as those that had been previously agreed with the Trade Unions and Staff Associations that represent the Respondent’s workers and that had been offered in 2009 and 2011.

Decision on the Preliminary Issue

Having carefully considered the wording of the impugned waiver signed by the Complainant, and having regard to the respective submissions made by the parties’ representatives and the authorities opened to it, the Court finds that the wording of the waiver is clear and unambiguous. There was no duress placed on the Complainant to sign it. He voluntarily applied for the scheme and signed the waiver having had some two weeks to reflect on it and take professional advice in respect of it. The Complainant was not placed at any disadvantage, in the circumstances that gave rise to his decision to voluntarily leave his employment in consideration for a very generous pay out, by virtue of the Respondent’s decision not to append to the relevant agreement a list expressly identifying every current employment enactment that was intended to be encompassed by the words “all claims under statute … arising out of my employment with RTE and termination of that employment”. It would be unconscionable for the Court to permit the Complainant, at this point in time, to resile from such a clear and unambiguous agreement that he freely and voluntarily entered into, without any form of duress.

In all the circumstances thecontra proferentemrule has no application to the facts herein and the Court does not accept that the passage cited by counsel for the Complainant fromMurphy v Stewart[1973] IR 97 has any relevance to the within appeal.

Determination

Having regard to its decision on the efficacy and binding nature of the waiver agreement entered into by the Complainant in consideration for the benefits he received from his former employer, the Court determines that it has no jurisdiction to deal with the substantive element of the Complainant’s case on appeal. The decision of the Equality Officer/Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
JD______________________
16 August 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.