ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003295

Complaint for Resolution:

Date of Adjudication Hearing: 2nd August 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:                                                                                                                                  .

The Complainant was employed by the Respondent from 1^st May 2007 to 3^rd January 2016, when his employment was terminated by the Respondent by reason of redundancy.   The Complainant received an ‘ex-gratia’ payment of €10,316.34c in addition to his statutory redundancy entitlement of €10,912.66c.     The Complainant was submitting that he was unfairly dismissed by reason of unfair selection for Redundancy and the Respondent was denying the complaint.

Preliminary Issue:                                                                                                                                      . A preliminary issue arose as to whether or not the Complainant was estopped or prevented from proceeding with the instant case under the Unfair Dismissals Acts by his acceptance of the ‘ex-gratia’ payment of €10,316.34c and his signing of the document in relation to same on 11^th February 2016.

Summary of Respondent’s Position on Preliminary Issue:                                    . The Respondent said that the Claimant was estopped or prevented from proceeding with this claim or complainant under the Unfair Dismissals Acts on the basis of his acceptance of the ‘ex-gratia’ payment in addition to his statutory redundancy payments.

The Respondent said that for operational and business reasons their named client had instructed them that it was imperative for numbers on the site where the Complainant was employed to be reduced for economic and operational factors.   Following these direct instructions from their client the Respondent had to “carry on the business with fewer employees”

Following protracted negotiations with the named trade union (of which the Complainant was a member) the Respondent was initially unable to reach an agreement on the required redundancies.

By the end of October 2015, with the assistance of a named independent outside facilitator and the (then) LRC, the Trade Union and the Respondent reached an agreement on proposals for the Redundancy process.   A secret ballot of all the members of the trade union took place on 30^th October 2015, which included the Complainant, and the proposals were accepted.

The Respondent said they acted in full accord with the terms of this agreement in effecting the Complainant’s redundancy.

On 11^th February 2016 the Complainant was presented with, and signed for his redundancy, including the ‘ex-gratia’ element of the agreement; the Assistant Security Manager also signed this document.

The Respondent quoted and referred to the case of Hurley -v- Royal Yacht Club in support of their position.

The Assistant Security Manager gave evidence.   He said that he could not get a Hotel Room to meet the Complainant so he met him in his own house (the Manager’s).   He said that a named member of administration staff was also present.    The Witness said that they, he and the Complainant, discussed the letter, that he read it and the Complainant looked through it and signed it and he gave the Complainant the two cheques, one for the statutory redundancy payment and one for the ‘ex-gratia’ payment.  

The Witness said he was satisfied that the Complainant fully understood the document and what was involved.   He said that the trade union had a series of general meetings with all members on site before the secret ballot took place and fully explained the proposals to all and there could be no doubt that the Complainant was fully briefed by his trade union and could have applied to them if he had any queries or required any advice.

Summary of Claimant’s Position on Preliminary Issue:

The Claimant’s Representative said the Respondent was fully aware that the Complainant did not accept his selection for redundancy.   They said that they appealed it internally; that the Respondent allowed an internal appeal and thus were aware that the Complainant did not accept his selection for redundancy.  

The Complainant said that he has a literacy problem/issue and he said that he understood that he was just signing for monies received, i.e. a receipt.   He said that there was nobody with him at the time to assist him and thus he said that it was not an informed decision (he did not say why he brought no one).

In response to the question of what he thought he got the extra €10,316.34c for the Complainant was unable to say.

Findings and Decision:

Section 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of that Act.

Preliminary Issue:                                                                                                           . I note that there are a number of Court Decisions or Determinations in relation to the issue of full and final settlements, including but not limited to Sunday Newspapers Limited -v- Stephen Kinsella and Like Bradley.   It is clear from these authorities that a provision in a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on a statue.   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. An agreement to waive statutory rights must be supported by an adequate consideration

    

2. The waiver is only valid if it is based on free and informed consent given by a person with full knowledge of their legal rights

    

3. 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 her/him to sign a waiver

    

    

    

4. The waiver should normally arise from an agreement reached as a result of meaningful negotiation and professional advice having been sought and given

    

5. Where there is doubt the course of the negotiations between the parties should be examined so as to ascertain what was intended.

I am satisfied that the instant case meets the criteria set out above.  

There was a reasonable or adequate consideration involved, with the Complainant receiving the sum of €21,229.00c (twice his statutory redundancy payment)

The agreement involved clearly and plainly arose from meaningful negotiations carried out on behalf of the Complainant by skilled, experienced, professional trade union negotiators and independent professional advice was given by the trade union to the Complainant and his colleagues.

The Respondent did in fact advise the Complainant in writing to obtain professional advice before inviting him to sign the agreement.

When one examines the course of the negotiations between the parties it is clear that what was intended is what happened and covers it fully.

It is not in dispute that the Complainant’s consent was freely given and was not coerced, forced or given under pressure and based on the foregoing I am satisfied that it was an informed consent given by a person with full knowledge of his legal rights.

Decision:                                                                                                                                                            . I am satisfied that the Complainant is estopped or prevented from pursuing his complaint or claim under the Unfair Dismissals Acts by the Agreement signed by him and the Respondent on 11^th February 2016 and by the payment to him by the Respondent of the sum of €21,229.00c on that date, accordingly I cannot entertain the complaint under the Unfair Dismissals Act and I must decline to so do

Dated: ____4^th November 2016______________________________________