ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000575

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 05/04/2016

Workplace Relations Commission Adjudication Officer: David Iredale

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Claimant presented complaints against multiple respondents under Section 8 of the Unfair Dismissals Act 1977. At the hearing, the parties agreed the Claimant’s employer for the purpose of his claim for unfair dismissal (the “Respondent”). His employer on 31 July 2015, the date his employment was terminated, became the Respondent on 1 September 2015.

The Claimant was employed as a Technical Services Team Leader from 11 March 2013 to the termination of his employment on 31 July 2015. He worked a 39-hour week and was paid a salary of €53,903.82 per annum.

On 9 July 2015, the Claimant signed a waiver document accepting the sum of €18,216.71, inclusive of statutory redundancy, in full and final settlement of all claims and actions arising from his employment and/or the termination of his employment. The Claimant’s employment terminated due to redundancy on 31 July 2015.

Preliminary Issue – Jurisdiction:

The Respondent contends that an Adjudicator has no jurisdiction to hear this complaint as the Claimant signed a waiver document confirming his acceptance of a statutory redundancy lump sum, payment in lieu of notice and an ex-gratia redundancy payment in full and final settlement of all current, pending and future claims that he may hold or pursue against the Respondent, including claims under the Unfair Dismissals Acts, 1977 to 2001.

Respondent’s Arguments - Jurisdiction:

(1)    The Respondent contends that a genuine redundancy situation existed and that the Claimant was fairly selected in accordance with the appropriate procedures, following a restructuring of the organisation.

On 24 June2015 the Claimant was advised that his position was at risk of redundancy. On 9 July the Claimant received formal notice of redundancy in the form of a waiver document sent to him by email. He was subsequently sent a revised waiver document that reflected amendments that he had requested. The Claimant was clearly advised, as documented in the signed waiver agreement, to take legal advice or advice from a trade union and the waiver document listed the legislation under which he could not pursue future claims. The Claimant signed and returned the waiver document to Human Resources confirming his acceptance of the sum of €18, 216.71 in full and final settlement of all claims, howsoever arising, against the Respondent.

(2)    The Respondent submits that the Circuit Court case of Donal Hurley v Royal Yacht Club (1997) [E.L.R. 225] affirms the position that the Claimant is precluded from pursuing proceedings against the Respondent by reason of his signing the waiver agreement and where he was advised of his entitlements under employment legislation and advised to take appropriate advice as to the consequences of signing the agreement.

(3)    The Respondent denies that the Claimant was put under pressure or coerced to sign the waiver agreement.

Claimant’s Arguments – Jurisdiction:

(1)    The Claimant submits that when he received the waiver document on 9 July 2015 he was not afforded the opportunity to fully consider or take advice regarding the consequences of signing the document as he pressurised by Human Resources to sign and return the document.

(2)    The Claimant contends that his redundancy was not a genuine redundancy as his former position was filled a number of weeks after his employment was terminated. The person who replaced the Claimant works in the same , with the same team and with the same role and authority in which the Claimant was formerly employed. The Claimant contends that he was unfairly dismissed as his position was not made redundant and therefore the waiver document is void as it is based on his former position being redundant.

Decision - Jurisdiction:

S.13 of the Unfair Dismissals Act 1977 (the “1977 Act”) states that :- 

“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act”

Judge Buckley in the Circuit Court case of Hurley v Royal Yacht Club (1997) E.L.R. 225 considered, in the context of S.13 of the 1997 Act, the circumstances under which claims could be legitimately compromised. He stated that :-

“ It cannot have been the intention of the legislature to prevent employers from compromising claims under the Act. The question which therefore arises is : under what circumstances can claims be legitimately compromised. Not, I think until the employee is in a proper position to agree to a compromise.

In several areas of the law the Supreme Court has held that any consent by a person to waive a legal right which that person has, must be an informed consent. This doctrine must surely apply to contracting out provisions and to S.13 in particular”

Buckley J., having considered determinations by the Employment Appeals Tribunal stated as follows:-

“ 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 this 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 his case, would have been legal advice. In the absence of such advice, I find the agreement to be void”

The waiver document signed by the Claimant in the instant case clearly lists the various Acts applicable to the agreement and, as held by Buckley J with regards to the requirement that the Claimant “should have been advised in writing that he should take appropriate advice as to his rights” states that :-

“I acknowledge that I have been afforded the opportunity to take independent legal advice or independent advice from my trade union representative regarding this Agreement and that accordingly, I understand the effect and implications of same fully”

The Claimant submits that he was pressurised by the Respondent’s Human Resources personnel to sign and return the waiver agreement on the same day that he had received it by email. The Respondent denies that the Claimant was pressurised and contends that he was free to delay deciding whether to sign the waiver document in order to seek appropriate advice. The Respondent also referred to the Claimant having secured amendments to the original waiver document as evidence that he was not being pressurised into signing the document.

When making his claim for unfair dismissal to the WRC, the Claimant stated on the Complaint Form that :-

“ I was paid a total of €18,216.71 and my employment terminated on 31^st July 2015. In order to receive the payment €18,216.71 my employee required me to sign a waiver (in respect of any and all claims may have against them). I signed the waiver in good faith. I have since learned that my position was not made redundant and that in fact another individual replaced my….”

The Claimant makes no reference in his statement setting out the details of his complaint to being coerced or pressurised to sign the waiver or denied the opportunity to seek appropriate advice but rather that he “signed the waiver in good faith”

Having fully considered the submissions made by the parties I prefer the Respondent’s evidence that the Claimant was not pressurised into signing the Agreement but rather was afforded, but declined, the opportunity to seek legal or other appropriate advice. I find, on balance, the Respondent’s version of events to be more consistent with the Claimant’s statement of claim. While I accept that the Claimant may not now believe his job was redundant, the waiver he signed, having been advised in writing to seek appropriate advice and being made fully aware of the applicable Acts, precludes him from pursuing any claim under the provisions of the 1977 Act, as amended. I therefore find that an Adjudicator has no jurisdiction to hear his complaint alleging he was unfairly dismissed from his employment.

Dated:   6^th September 2016