EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD976/2009
MN992/2009
WT430/2009
CLAIM(S) OF:
Justin Doyle,
against
Frank & Sheelagh Conway
T/A Peig Sayers Hotel Partnership And The Riverhouse Hotel,
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O’Carroll-Kelly BL
Members: Mr. J. Goulding
Ms. M. Maher
heard this case in Dublin on 21 December 2016 and 3 February 2017
Representation:
_______________
Claimant(s):
Mr Darach MacNamara BL instructed by
Mr Jim Downing, Lawlor O'Reilly & Company, Solicitors,
43 Upper Gardiner Street, Dublin 1
Respondent(s):
Mr Robert Dore, Dore & Company, Solicitors
2 Citygate, Bridge Street, Dublin 8.
The determination of the Tribunal was as follows:-
Preliminary Application.
The respondent stated that the claimant had received a payment of €2,500.00 in full and final settlement of all claims against the respondent. It is worth noting that the respondent, who was legally represented, did not make that application at the first day of the hearing, nor did he mention the settlement when the matter came before the Circuit Court. No documentation in relation to the alleged settlement was produced before the tribunal either on the first day of the hearing or at today’s hearing. The respondent stated that on the day the claimant was dismissed he was called into a meeting and told his employment was being terminated. He was handed €5,000.00 which was to be divided between himself and another employee. The respondent stated that he did ask the claimant to sign a document but he couldn’t as his hand was in plaster. The proposed document that it is alleged the claimant could not sign was not produced at the hearing.
In Hurley v-Royal Yacht Club [1997] E.L.R. 225 Judge Buckley in the Circuit Court considered "under what circumstances can claims be legitimately compromised"? In the context of s.13 of the Unfair Dismissals Act, 1997, and stated:
"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 section 13 in particular.".
(the judge then having reviewed various determinations of the Employment Appeals Tribunal) continued 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."
Following on from Hurley was Sunday Newspapers Limited V Kinsella & Bradley [2007] IEHC 324. On any reading of that case it is clear that certain matters must be adhered to in order for the respondent to successfully assert that the waiver is not compromised.
- The Waiver must state that it is in full and final settlement.
- The included statutes must be clearly set out.
- The employee must be advised by the employer to get legal advice prior to signing the document.
The circumstances surrounding this alleged waiver do not meet any of criteria set out in the aforementioned cases. The claimant was not advised that the payment was in full and final settlement. The claimant was not advised what acts the settlement included. He was not advised to get legal advice before accepting the settlement. There was no written document for the claimant to sign.
In all of the circumstances the Tribunal find that the matter has not been compromised and that the tribunal does have jurisdiction to hear the claim.
Determination
The Tribunal notes that the claimant did not choose to prosecute before the Tribunal the claims lodged under legislation other than the Unfair Dismissal Acts, 1977 to 2007. Therefore, all claims under other legislation e.g. Organisation of Working Time Act, 1997, and Minimum Notice and Terms of Employment Acts, 1973 to 2005, are deemed to have been withdrawn.
The claimant commenced working with the respondent in September, 2007. He was a security officer and his duties involved the provision of security in both the respondent’s bar and the night club. In 2008 the premises underwent a renovation and it was during this time that the respondent decided to bring in a consultant, with a view to changing the image of the establishment. The consultant advised that image of the security staff needed to be changed. He employed a new security team who were to provide their services in the nightclub only. The claimant was not happy with this arrangement and was said to be obstructive. It is alleged that he attempted to allow individuals into the nightclub via a back door and that he generally interfered in new security staffs role. The complainant denied any interference and stated that they all got on well. The respondent stated that he did have words with the claimant about this. He accepts that no warnings were issued.
On the 3rd day of November the claimant was called into a meeting and was told his employment was being terminated. He was given no prior warnings. No disciplinary process whatsoever was invoked. There was no investigation into his alleged wrongdoings. There was no independent disciplinary hearing. He was not informed of the reasons for the dismissal. He was not given an opportunity to defend the allegations. He was not given an opportunity to get representation, legal or otherwise. He was not given the right to appeal the decision to dismiss him.
In all of the circumstances the Tribunal finds that there was a catastrophic breach of all of the claimant’s employments rights in relation to the termination of his employment.
The Tribunal notes and has taken into account the €2,500.00 already received by the claimant. The Tribunal deems it just and equitable to order that the respondent pay the claimant, in compensation for unfair dismissal, a further €14,500.00 (i.e. in addition to the €2,500.00 already paid) within six weeks of receipt of this determination.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)