Complainant

Respondent

Anonymised Parties

An Employee

A Sporting Organisation

Representatives

Karen Wall, Ronan Daly Jermyn,

Emer Meeneghan, Barrister

Eamon Molly, Respondent

Karl Boyle, Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00005115-001

10/06/2016

The Complainant commenced working for the Respondent in October 2010 in a Club Community Officer role, a position that was initially for a six-month period. An extension was provided which brought the period up to the end of May 2011.

Following a three-month layoff, the Complainant was offered the position of Community Officer and was provided with the use of a company car, mobile phone and laptop.

After an external review of structures in the organisation, significant changes were recommended. These changes had an impact on the Complainant's role. All staff impacted by these changes were called, individually, to meetings with senior management. Some staff were told they would remain in their roles, some were informed they would be transferred, while others were advised their jobs were going to be made redundant.

The Complainant was informed that his job was no longer going to exist. The Complainant was also informed, at this meeting, about new positions that were being made available. However, he was told that he did not have the relevant qualification to be offered a particular position under the new system.

In January 2015 the Complainant applied for a particular position but was unsuccessful on the basis that he didn't have the relevant experience.

In a meeting with his line management, the Complainant was informed that, as he was on a fixed term contract which had come to a natural conclusion, there was no requirement for any severance or redundant payment in his case. However, during the Complainant's final week in employment, a member of senior management contacted him and told him that there had been confusion in relation to his situation and that the Respondent and that he would now be offered an ex-gratia lump sum.

The Complainant was paid his statutory redundancy of €6,057.66 on 17 July 2015.

The Complainant submits that, later he came to the realisation that his role with the Respondent was not made redundant but in fact he had been unfairly dismissed and is now seeking for his case to be heard under the Unfair Dismissals Act.

The substantive claim:

In his submission, the Complainant stated that at the time of his departure from the Respondent it appeared to him that the organisation was genuinely going in a different direction, as a result of the review, and there was little evidence to indicate otherwise. The Complainant submitted, that on this basis he removed himself from any connection with the Respondent or the sport in general.

The Complainant submitted that in September 2015 he enrolled in a VTOS course and had just completed the first year in the Institute of Accountant Technicians exams.

The Complainant submitted that after receiving education in employment law and with the evidence to back up his claim, he now believes that his role with the Respondent was not made redundant but in fact he was unfairly dismissed. The Complainant submits that there were two reasons for his arrival at this conclusion: (1) a colleague who had less service than him in his role was still doing the job and (2) the main duties he was carrying out in his previous role had not changed.

In addition, to the evidence presented by the Complainant in relation to the substantive claim, he made submissions in relation to the two preliminary points raised by the Respondent. The Complainant's submissions in this regard are set out as follows:

Complaint is out of time:

The Complainant submitted that, under the Employment Equality Acts extensions of time can be granted where there is concealment of information by the offending party. The Complainant submitted that this applied in his case.

The Complainant further submitted that the main reason he was unable to pursue his claim of unfair dismissal was due to his mental health. The Complainant stated that from the time of his father's death in January 2015 until approximately March 2016, he was suffering from depression and had consulted with his doctor. It was further stated that, on his doctor's advice, he attempted to remove himself from the primary cause of this anxiety which was stress. Consequently, the Complainant submitted that, following his departure from the Respondent, he removed himself from any contact from the organisation or its activities.

However, the Complainant submits that, following an interaction in April 2016 with the organisation he became aware of his unfair dismissal. The Complainant stated that, at the time, he was studying for the Accounting Technician exams in May 2016. However, the Complainant stated that when he had sufficient time to enter complaint did so, which was in June 2016.

The Complainant submitted that as a result of all the above, the delay in his case was reasonable and he requested that it be determined as such.

Compromise Agreement – 14 July 2015

In response to the Respondent's submission in relation to the Compromise Agreement, the Complainant contends that the Unfair Dismissals Act 1977 is clearly against contracting out of the Act. The Complainant submitted a number of cases where the courts have, on occasion, allowed such agreements to stand only on the particular circumstances of each case.

The Complainant further submitted that it is clear, from the case law, that an Adjudication Officer does have the jurisdiction to decide whether or not a waiver or agreement in any particular case is a full defence to the claim. However, the Complainant submits that the Adjudicator has discretion to hear the entire evidence of the claim before doing so.

The Complainant submitted that, in reaching a decision in this regard, the Adjudication Officer can take into account all the factors that might strike down an agreement under Contract law. The Complainant submitted that these factors included duress, undue influence and unconscionable bargain.

In support of his submission in this regard, the Complainant referred to the case of "Shortt v Data Packaging Limited (1996 ELR7). The Complainant submitted that, in this case, the EAT found the defendant's suggestion that the claimant would not get his money unless he signed the document to have essentially deprived him (the claimant) of the exercise of his full free will and, as a consequence, did not enforce the agreement. The Complainant suggested that this was an example of economic duress.

The Complainant submits that, in assessing the merits of his case, the circumstances and the application of the general principles of Contract Law would have to be taken into consideration.

The Complainant submits that in this case there were elements of duress, undue influence, unconscionable bargain and misrepresentation. The Complainant submits that the Respondent misinformed him as to his right to redundant, to which they claimed he had no right, but informed him they were giving him an ex-gratia payment.

The Complainant submitted that as a father of a young family, with a mortgage to pay and a car to replace, he could not afford to seek further legal advice and had no option but to accept the payment and sign the form. It was further stated that no provision was made to fund his legal expenses in this regard and the minimum nature of the payment left him with no alternative but to accept it.

Finally, in this regard, the Complainant submitted that the Respondents, by their misrepresentation that he had no right to redundancy payment, had lost the right to use that agreement against him.

The Complainant submitted that the full circumstances of the case must be heard before the preliminary points are adjudicator upon.

The Respondent submits that prior to considering the substantive element of the Complainant's claim that the dismissal was unfair, two preliminary issues needed to be addressed. Firstly, that the Complainant did not submit his claim within the six months provided by the Workplace Relations Commission Act 2015. Secondly, the Respondent claimed that the Complainant has already compromised his position under the Unfair Dismissals Act by way of a settlement agreement signed on 14 July 2015.

With regard to the two preliminary points, the Respondent presented the following submissions:

1) Complaint is out of time:

The Respondent submitted that the Complainant's employment came to an end on 30 June 2015 when his fixed term contract came to an end. The Respondent submits that Section 41 (6) of the Workplace Relations Commission Act 2015 provides as follows

"Subject to subsection (8), an adjudication Officer shall not entertain a complaint referred to him or her under this section if it had been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates".

The Respondent submits that the above Section 41 (8) of the Act provides that an Adjudication Officer may entertain a complaint after the expiration of 6 months from the date of the alleged contravention (but no more than 12 months after) if he or she is satisfied the failure to present the complaint or refer the dispute within the period was due to reasonable cause.

According to the Respondent's submission, the power to extend the time limit for reasonable cause was fully considered by the Labour Court in Cementation Skanska v Carroll (DWT 38/2003), in a case under the Organisation of Working Time Act 1997. In that case, the Court said that, in considering whether a reasonable cause exists it was for the claimant to show that there were "reasons which both explain the delay and afford an excuse for the delay".

It was submitted by the Respondent that the Court, in that case, went on to hold:

"The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression "reasonable cause" appears in statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant's failure to present the claim within the six months time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time."

The Respondent submitted that in the Skanska case, the Labour Court went on to say that the length of the delay should also be taken into account. A short delay might only require "a slight explanation" where a long delay might require "more cogent reasons".

The Respondent submitted that, in the case in hand, contravention is alleged to have taken place on 30 June 2015. Consequently the Complainant had until 30 December 2015 to make his complaint. However, the Respondent pointed out that the complaint was not received by the WRC until 10 June 2016.

The Respondent contends that, when invited by the WRC to make a submission regarding his failure to submit his complaint within the allotted time, the Complainant stated that he had been suffering from a medical condition, and had consulted with his doctor from January 2015 to March 2016. However, the Respondent pointed out that the Complainant did not provide any medical records or medical report to substantive this claim.

Consequently, the Respondent submitted that the Complaint is not in a position to satisfy that, had he not been suffering from a medical condition, he would have initiated his claim in time. The Respondent submitted that there is no causal link between the medical condition and the delay. It was further submitted that it is irrational to suggest that there is such a link given that in the same timeframe the Complainant was able to liaise with and take advice from a local solicitor, negotiate redundancy payment and embark on a number of courses.

Finally, the Respondent referred to the Complainant own account, where he states that he became aware of his unfair dismissal in order about April 2016, but didn't have time to submit a claim because he was studying for accounting technician exams in May 2016. Consequently, it was submitted by the Respondent that the Complainant's reason for the delay are not cogent such as to merit application of Section 41 (8) of the Act.

2) Compromise Agreement – 14 July 2015

On their second preliminary point, the Respondent submitted that there are relying on the Compromise and Settlement letter signed by the Complainant on 14 July 2015. In this regard, the Respondent submitted that the Complainant, in return for a payment of €6,057.66, agreed that he thereby relinquished all claims he might have against the Respondent, to specifically include in claim pursuant to the Unfair Dismissals Act.

The Respondent submitted that, in circumstances where the Complainant confirmed and agreed that he had been advised by the Respondent to seek independent legal advice regarding the content and effect of the agreement and that, having been afforded the opportunity to do so, acknowledged that he understood the effect and implications of the agreement (namely that he was releasing and compromising all claims he might have against the Respondent), the Complainant is estopped from denying the effects of this agreement and its validity. Consequently, the Respondent submits that the Complainant is estopped from bringing a claim pursuant to the Unfair Dismissals Legislation.

Further, the Respondent submitted that the Complainant has not repudiated the Compromise Agreement and has not returned the monies he received in July 2015, on foot of that agreement.

By reference to case law Hurley v Royal Yacht Club [1999] ELR 7 (EAT), the Respondent submitted that the Complainant was advised of precisely which employment protection legislation was applicable on foot of the Compromise Agreement and was also advised to seek legal advice.

The Respondent submitted that, in the circumstances, the agreement signed by the Complainant is binding and enforceable. Moreover, the Respondent contends that the Complainant has not provided sufficient, or any, grounds for the Adjudication Officer to look beyond that agreement.

The substantive claim:

Notwithstanding, and without prejudice to, the outcome of the above preliminary points, the Respondent refutes the Complainant's claim for unfair dismissal on the grounds of redundancy. The Respondent submitted that this was a genuine redundancy. According to the Respondent, the Complainant's role was made redundant as a result of a major reorganisation/restructure of the Respondent's organisation.

It was submitted by the Respondent that the Complainant did not have the level of qualification required in comparison to other members of staff to acquire one of the new roles within the organisation, which roles were created to progress the organisation in the direction recommended, following strategic review.

The Respondent had originally sought to have the preliminary issues heard prior to any hearing of the substantive element of the Complainant's claim. This request was rejected and a full hearing of the substantive element of the claim as well at the preliminary points took place. I found this to be particularly beneficial when dealing with the preliminary issues as raised by the Respondent.

Having carefully considered all the evidence adduced, I set out hereunder my considerations and findings with regard to the preliminary issues, taking in the order in which they were raised.

Complaint out of time:

I am satisfied from my review of the evidence presented in relation to the matter of time limits, that at the point of his departure from the Respondent's organisation, the Complainant was clearly of the view that the strategic review/restructure which was being implemented was taking the organisation in a different direction. Consequently, at that point in time, I am satisfied that the Complainant was of the view that his role was being made redundant.

This view was confirmed by the Complainant in his written submission, where he states that he "genuinely felt" the Respondent was taking a significant element of the organisation in a different direction and that there was very little to indicate otherwise. In addition, the Complainant, though disappointed at losing his position with the Respondent, clearly took steps to take his life and career in a different direction. In my view, all of this provides confirmation as to the Complainant's acceptance of the redundancy situation as it existed at the time of his departure.

The Complainant's revised position in relation to his departure from the organisation and his conclusion that a dismissal, rather than a redundancy, situation existed, takes place at a 9/10 month remove from the situation that existed at the time he finished up with the Respondent. I am satisfied that any such retrospective assessment of a restructure situation, particularly where the elements were as complex and interdependent at the appear to have been in this case, will inevitably identify certain elements of the proposed plan that may not yet have fallen into place as anticipated.

However, notwithstanding this, I am satisfied, from the detailed evidence presented by both parties relating to the structure of the organisation both pre and post the strategic restructure, that the Respondent was, at the time of the Complainant's departure, clearly going in a different direction in relation to a significant element of that organisation in which the Complainant was employed. Again, from the evidence presented, I am satisfied that 9/12 months later there was no discernible deviation from that plan. Consequently, I am not satisfied that there was a significant change which would suggest that the situation for the Complainant had changed from one of redundancy to one of dismissal.

I also note that the Complainant refers to the payment made under the compromise agreement of 14 July 2015 as a "statutory figure", which clearly suggests he saw it at the time as being a redundancy payment.

With regard to the Complainant's submission that the main reason he was unable to pursue his claim was one of mental health, I note that no significant supporting medical confirmation of this position was provided. In this regard I note a medical certificate, which is undated and unsigned, which suggests that the Complainant was suffering from "stress -like symptoms" during the summer of 2015.

I further note that the time period referred to above document coincides with the Complainant's departure from the organisation. I am satisfied that it would be understandable that the Complainant might be experiencing stress in his life at that stage, as a result. However, I cannot accept this as evidence of the mental health issue, which the Complainant alleges he experienced from January 2015 through to March 2016 and which was the main cause for the delay in submitting his complaint.

I am also influenced, in this regard, by the fact that the Complainant was in a position to study for his accountancy exams and successfully complete his first year of Accountant Technician program.

Consequently, taking all the above into consideration, I find that the Complainant has not established reasonable cause which might prompt the application of Subsections (6) and/or (8) of Section 41 of the Workplace Relations Commission Act 2015.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my decision:

Complaint out of time:

Based on the considerations set out in the previous section, I find that the Complainant's complaint is out of time and, consequently, I have no jurisdiction to hear this case.

In summary, based on the above finding, I was not in a position to consider the second preliminary point raised by the Respondent or, indeed, the substantive claim made by the Complainant.

Unfair Dismissal

Time Limits

Compromise Agreements