Complainant

Respondent

Parties

Driver

Road Haulage Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00005102-001

09/06/2016

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

CA-00005102-002

09/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00005102-003

09/06/2016

The complainant was employed as a driver by the respondent since August 2012. He worked on a full time basis and was paid €575.00 per week. Following an altercation with his line manager the respondent left the workplace on the basis that he had been dismissed. There was subsequent contact between the parties including a meeting between the complainant and the respondent’s HR Consultant. A financial settlement including phased payments was agreed.   The first payment was made by the respondent to the complainant but no further payments were made as the respondent claimed that the complainant had breached a confidentiality clause in the agreement.

There had been ongoing difficulties between the complainant and the line manager. The complainant had brought this to the attention of the owners but nothing had been done in this regard.

In March 2016 there was an altercation between the line manager and the complainant. The line manager went and had a telephone consultation and then returned and told the complainant to collect his belongings, leave his company phone and go home. The complainant understood that he had been dismissed.

The complainant contacted the owner the next day and as a result was in turn contacted by the company’s HR Consultant who arranged to meet him the following day.

At the meeting the complainant explained what had occurred between him and the line manager. The Consultant suggested a redundancy package and figures were discussed. The next day the Consultant rang him and told him that the respondent had agreed a sum of €4,000.00 in respect of the complainant’s redundancy.

On 15 March 2016 the complainant met with the consultant who had drawn up a settlement agreement.   The Consultant went through the agreement and when she came to the confidentiality clause the complainant mentioned that he had told a friend that he was being made redundant. The Consultant did not indicate that this was a problem. The complainant signed the agreement.

The payment was to be paid in phases and the first payment was made to the complainant’s bank account the next day.

A few weeks later the complainant received a phone call from the Consultant telling him that the agreement was cancelled as the owner had been informed by a third party about the settlement with the complainant. Following further conversation the Consultant offered a total payment of €2,000.00 but this was not acceptable to the complainant.

The original agreement could not be enforced as the owner had signed as a Director of a company that had ceased to exist.

On 26 April 2016 the complainant wrote to the Consultant requesting his P45 form as he had been let go from his job on 10 March 2016. He received the form shortly afterwards. He received no payment in lieu of notice of termination of his employment.

The claim under the Terms of Employment (Information) Act, 1994, is withdrawn.

The respondent did not dismiss the complainant at any stage. The line manager would not have authority to do so.

The line manager informed the owner that the complainant was refusing to take out a truck. The owner gave instructions that the complainant was to be sent home and that he was to leave the phone behind as it was a company phone.

The complainant phoned a Director that evening who arranged for the company’s HR Consultant, who was also a trained mediator, to contact the complainant and discuss the issues.

At that meeting the Consultant informed him that his job was still there but the complainant indicated that he was unwilling to return to work because of ongoing issues between himself and the line manager. The complainant had not raised these issues through the grievance procedure.

The complainant raised the issue of being made redundant. Following further discussion the complainant suggested a figure of €4,000.00. The Consultant discussed this proposal with the owner who reluctantly agreed to same.

The agreement was drawn up and signed by both parties on 15 March 2016 and the first payment was made to the complainant the day after.

Shortly afterwards the owner was made aware that an ex-employee of the respondent had discussed the terms of the settlement in a public place. When the Consultant contacted the complainant in this regard he accepted that he had spoken about the settlement to the ex-employee concerned.   A further breach of the confidentiality clause also became known to the respondent.

The respondent was extremely unhappy regarding these developments. It was proposed, however, to make a further payment totalling €2,000.00 in respect of the settlement but this was rejected by the complainant.

The respondent did not dismiss the complainant. He was advised that his job was open. The respondent engaged the services of a consultant / mediator to engage with the complainant and he was assured that his grievances would be investigated by the respondent if given the opportunity. The complainant breached the mediated agreement.

This complaint has its roots in an argument between the complainant and his line manager.   While the exact details of the argument are disputed there is no doubt but that the manager instructed the complainant to go home and leave his phone on the premises. The complainant stated that the manager also said “you’re gone now”. The manager was not present at the hearing to give evidence.

Either that evening or the next day the complainant contacted a director of the respondent to clarify his situation. The upshot, however, was that a meeting was arranged between the complainant and a HR Consultant that the respondent had retained to handle HR matters. The complainant was aware who this person was.   Both parties gave differing accounts of what was said at this meeting. The complainant stated that the Consultant suggested that the complainant be made redundant and that after speaking with the owner the Consultant phoned him the following day saying that a figure of €4,000.00 in relation to this was agreed. The Consultant’s account was that she had told the complainant that he was not sacked but that he had made it clear that he was not returning to work because of ongoing issues with the line manager. The Consultant mentioned the Grievance Procedure and then asked if the complainant was looking for a settlement based on compensation and he replied that “I am not leaving empty-handed”.   The complainant suggested €4,000.00 which was less that the amount calculated as a statutory redundancy payment.   The Consultant then spoke that evening to the owner who reluctantly agreed to this figure. She informed the complainant of this the next day.   There are no agreed minutes of this meeting.

An agreement entitled a Settlement Agreement was drawn up by the consultant containing 16 clauses and running to almost 3 pages.   Clause 9 of the Agreement was a confidentiality clause in which “the Employee undertakes to keep the facts and terms of this Agreement and the circumstances concerning the termination of the employee’s employment strictly confidential to the parties hereto….” Clause 15 related to the employee confirming that he had the option of receiving independent legal advice from a relevant independent adviser regarding the terms and effects of the Agreement. The Agreement was signed by the complainant as employee and by the owner as a director of a named company. It was also signed by the Consultant and dated 15 March 2016.

The disagreement as regards this meeting is that the complainant states that he advised the Consultant prior to signing that he had mentioned the settlement to an ex-colleague.   The Consultant stated for her part that she only became aware of this matter when contacted by the owner some days later and that she had then phoned the complainant who admitted telling the third party about it. The result of this was that the respondent claimed that the Agreement had been breached and that they were no longer bound by it. A compromise was offered to the complainant but rejected by him. The complainant secured new employment at a higher rate of remuneration within two months.

The complainant’s case is that he was dismissed by his line manager on 10 March 2016. Arguments of the type mentioned are not unheard of in the workplace. It’s what follows that is important. In this case the complainant contacted a director of the respondent to clarify his position. He was then put in contact with the respondent’s HR Consultant. Regardless of the differing accounts, what emerged from that meeting was an agreement that the complainant would receive an agreed sum of money and his employment would terminate. The complainant stated that this was a redundancy settlement.   The sum agreed, however, was less than the statutory figure that would have been due to the complainant if he had been made redundant. In addition none of the statutory forms that accompany a genuine redundancy were produced or given to the complainant. Whatever was agreed therefore was not redundancy.

In respect of the Agreement it must be accepted that it was signed in good faith by both parties on 15 March 2016. The preamble refers to the complainant’s “decision not to return to work”. Clause 1 states that the Agreement “terminates the Employee’s contract of employment / current working arrangements as from 15^th day of March 2016 (the Termination Day) by mutual agreement…” Clause 3 refers to “compensation for the employees voluntary termination of the Employee’s employment”. It was accepted that on 15 March 2016 the Consultant read through the Agreement with the complainant. Despite the ambiguities above it had to be clear to the complainant that his employment would terminate and that in return he would receive a payment. I find therefore that he voluntarily signed the Agreement on that basis. The dispute that arose subsequently is a dispute as regards performance of the Agreement. As such it is not within my remit as regards adjudication.

As I believe that the complainant voluntarily terminated his employment the question of payment for notice does not arise.

As noted, the complaint in relation to not receiving a statement in writing of his terms of employment was withdrawn by the complainant at the start of the hearing.

Complaint No. CA-00005102-001:

This is a complaint under the Payment of Wages Act, 1991, in relation to the non-receipt of payment in lieu of notice. For the reason outlined above I find this complaint is not well founded.

Complaint No. CA-00005102-002:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. From the evidence before me I find that the complainant voluntarily terminated his employment and that therefore his claim under the Acts fails.

Complaint No. CA-00005102-003:

This is a complaint under the Terms of Employment (Information) Act, 1994, and was withdrawn at the commencement of the hearing.