Complainant

Respondent

Anonymised Parties

{A Senior Executive}

{A Company}

Representatives

Robert Emmet Bourke Robert Emmet Bourke & Company

Arthur Cox Athur Cox

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-00016290-001

12/12/2017

The Complainant is a Senior Executive who commenced working with the Respondent on 1st October 2015. He has made a complaint of unfair dismissal pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015.

The Complainant was dismissed for breach of an Agreement. His employment was terminated by mutual consent subject to the terms of an agreement dated 13th June 2017. The Respondent without cause has failed to comply with the agreement. The Complainant has brought separate High Court proceedings to enforce the agreement. The Complainant’s claim of unfair dismissal has been brought strictly without prejudice to his High Court proceedings.

The Complainant seeks to adjourn his complaint of unfair dismissal. This request had already been refused by the Workplace Relations Commission. The Complainant’s representative is concerned about the potential prejudice for the Complainant if the unfair dismissal claim proceeds when High Court proceedings to enforce the agreement reached between the parties is currently ongoing in the High Court. The fact of the dismissal is in dispute. Both parties are in agreement that the hearing should be adjourned, and that the decision of the Court of Appeal in Culkin v Sligo County Council & Anor [2017] IECA 104 is not applicable in this case.

By letter dated 10th May 2018 the Adjudication Officer requested submissions on two issues following the application for an adjournment of the hearing by the parties (i) the grounds on which the Complainant says that the decision of the Court of Appeal in Culkin v Sligo County Council & Anor is not applicable in this instance and (ii) the jurisdiction of the Workplace Relations Commission to determine the complaint of unfair dismissal in circumstances where the Complainant agreed to terminate his employment and executed a settlement agreement. The Complainant furnished written submissions on 7th June 2018.

The Complainant issued High Court proceedings seeking to enforce the terms of a written settlement agreement, which the Respondent alleges is unenforceable. One of the claims compromised by the Settlement Agreement is any claim for unfair dismissal. If the Respondent is correct that the Settlement Agreement is unenforceable then the Complainant will be permitted to proceed with an unfair dismissal claim. If the Complainant is correct then he will not be able to proceed with a claim for unfair dismissal.

If the Complainant is forced to proceed with his unfair dismissal claim, this would amount to a breach of the terms of the Settlement Agreement.

(i)                  Culkin v Sligo County Council & Anor [2017] IECA 104

The Complainant submits that the decision has no application to these proceedings, as the case does not involve overlapping claims. If the Complainant is successful in the High Court proceedings, the complaint will not proceed (one of the claims compromised by the Settlement Agreement is any claim for unfair dismissal). If the Complainant is unsuccessful in the High Court proceedings and the Settlement Agreement is deemed unenforceable, the Complainant will proceed with the complaint.

In Culkin v Sligo County Council & Anor the Court of Appeal held that an individual who is unsuccessful in a claim before the Equality Tribunal pursuant to the Employment Equality Acts 1998-2015 is not automatically precluded from proceeding with a personal injuries action arising out of the same facts. It was not possible for Mr. Culkin to have maintained the entirety of his claim against the Defendant before the Equality Tribunal because that statutory body had no jurisdiction to entertain a personal injuries claim.

The Complainant submits that the statutory provisions applicable are distinct from Culkin v Sligo County Council & Anor which was based on Section101 of the Employment Equality Acts 1998-2015. Section 101 provides that where an individual has referred a case to the Director under S77 and the Director has begun an investigation under S79 the individual shall not be entitled to recover damages at common law in respect of the case. This complaint is made pursuant to the Unfair Dismissals Acts 1977-2015 and S101 of the Employment Equality Acts 1998-2015 does not apply.

There is a comparable provision in S15 of the Unfair Dismissals Acts 1977-2015. S15 (2) provides where a decision has been made by an Adjudication Officer in respect of a claim by an employee for redress under the Unfair Dismissals Act the employee shall not be entitled to recover damages at common law for wrongful dismissal. Section 15 (3) provides where the hearing by a Court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under the Unfair Dismissals Acts.

The Complainant relies on the decision in Tammemagi v Employment Appeals Tribunal High Court (Blayney J) November 27, 1987 that the two subsections only apply where the common law proceedings are for damages for wrongful dismissal. The Complainant’s High Court proceedings seek to enforce the Settlement Agreement and does not seek damages for wrongful dismissal.

(ii)The WRC’s jurisdiction to determine the complaint of unfair dismissal

If the High Court proceedings are determined in the Complainant’s favour the unfair dismissal claim will be moot as the Settlement Agreement provided that the Complainant expressly agreed to terminate his employment and agreed that he had no outstanding claim against the Respondent pursuant to employee protection legislation.

However, if the Respondent successfully defends the High Court proceedings and the Settlement Agreement is deemed unenforceable, the jurisdiction of the WRC will be unaffected by the Settlement Agreement as it is unenforceable.

Following receipt of the Respondent’s complaint, the Respondent’s representatives notified the Workplace Relations Commission that the Complainant was concurrently pursuing High Court proceedings “closely related to the underlying facts of the WRC claim”. The case was allocated a hearing date, and an application for an adjournment was refused to which the Respondent had consented. The parties are in agreement that a postponement would be appropriate given the High Court proceedings which are being actively litigated on the same facts, and sought the hearing be postponed to avoid any potential prejudice to the High Court proceedings.

The parties made a further application at the hearing to the Adjudication Officer for a postponement. The Respondent remains of the firm belief that Culkin v Sligo County Council & Anor [2017] IECA 104 is clearly distinguishable from the facts of this case and the case falls within the rule in Henderson v Henderson (1843) 67 E.R. 313.

The Adjudication Officer by letter of 10th May 2018 directed that written submission be furnished by the parties in relation to i) the grounds on which the Respondent says that the decision of the Court of Appeal in Culkin v Sligo County Council & Anor is not applicable in this instance and (ii) the jurisdiction of the Workplace Relations Commission to determine the complaint of unfair dismissal in circumstances where the Complainant agreed to terminate his employment and executed a settlement agreement. The Respondent furnished written submissions on 30th May 2018.

i)                    the grounds on which the Respondent says that the decision of the Court of Appeal in Culkin v Sligo County Council & Anor is not applicable

The Respondent’s application for a postponement are rooted in the issue of the duplicity of proceedings, the intertwined nature of the remedies sought by the Complainant in both and the risk of significant detrimental prejudice to the Respondent in the defence of ongoing High Court proceedings if the Adjudication Officer were to proceed to issue a determination.

Henderson established the rule against multiplicity of proceedings and the principle that a party should not be twice vexed in the same manner. The Respondent relies in the recent High Court ruling in Cunningham v Intel Ireland Limited [2013] 24ELR 233 207 which states “all matters and issues arising from the same set of circumstances must be litigated in the one set of proceedings save for special circumstances” and says that this case is clearly distinguishable from Culkin v Sligo County Council & Anor.

The Respondent submits that the Culkin ruling did not overrule the rule in Henderson. The Court of Appeal said that the High Court had incorrectly applied the rule on its facts in the case. The Respondent submits that the Culkin ruling requires that the Henderson rule should be applied on a case by case basis. It is a breach of the rule in Henderson that the Respondent should be required to defend the duplicity of litigation in the two fora.

The Respondent says that the Culkin case is distinguishable from this case, because in Culkin there could be awards from two causes of action a statutory equality claim and a personal injuries claim. The success or failure of one of the causes of action would not be determinative of the other cause of action, and the claims and remedies are mutually exclusive.

The Respondent submits in this case the Complainant’s two causes of action are inextricably intertwined, and the determination of one cause of action is effectively determinative of the other.

Without prejudice to the submissions which the Respondent may make in relation to the substance of the Complainant’s claim, it appears the fact of dismissal is the first issue that must be decided if the case is to proceed. This preliminary issue would determine if there had been a dismissal at all or a constructive unfair dismissal. The Adjudication Officer must consider and determine if the settlement agreement is binding, which is the subject matter of the High Court proceedings.

Such a determination would have a significant prejudicial effect on the pre-existing High Court proceedings concerning the settlement agreement and any monies allegedly payable thereunder, and would trespass onto and could interfere with the jurisdiction of the pre-existing High Court proceedings.

The Respondent submits that to so proceed would therefore risk an abuse of the administration of justice as the remedies sought are inextricably intertwined. If the Adjudication Officer determined the Complainant is unfairly dismissed, the High Court proceedings could not succeed, as this would require a determination that the settlement agreement is not binding and the Complainant could not seek to recover the settlement monies. The WRC should defer to the Superior Court. Only one of the proceedings can legally survive.

The case is distinguishable from Culkin as the Respondent is not seeking to have the present claim struck out as was requested and refused by the Court of Appeal in Culkin. The Respondent has never submitted that there is a statutory bar to the Complainant bringing both claims. However, strictly without prejudice to the foregoing, if a general postponement cannot be granted the Respondent requests that the Complainant must decide which cause of action he wishes to pursue. If he refuses the Respondent submits that the Adjudication Officer must dismiss the claim as an abuse of process in deference to the Superior Court applying the rule in Henderson.

ii)                   The jurisdiction of the Workplace Relations Commission to determine the complaint of unfair dismissal in circumstances where the Complainant agreed to terminate his employment and executed a settlement agreement dated 13th June 2017.

The Respondent submits the Adjudication Officer has no jurisdiction to issue a determination under the Unfair Dismissals Acts 1977-2015 where a Complainant agreed to the termination of his employment and entered into a binding settlement agreement pursuant to same.

The Respondent submits in such circumstances it is for the Complainant to address the basis upon which it asserts the Workplace Relations Commission has jurisdiction to determine the claim initiated. The Respondent submits that any argument the Complainant would make to dispute the mutually agreed and binding nature of the settlement agreement would require an examination of the settlement agreement which is currently the subject of pre-existing proceedings in the High Court and which he has stated to be “strictly without prejudice” to his High Court claim.

The submissions are made strictly without prejudice to the Respondent’s defence of the High Court proceedings.

I have listened carefully to the application made by the representatives of the parties at the hearing for an adjournment of the case generally pending the outcome of separate High Court proceedings, and have considered the written submissions of the Respondent submitted on 30th May 2018 and the Complainant on 7th June 2018.

Written submissions were made by the parties in relation to the following matters relevant to the application (i) the grounds on which the Respondent says that the decision of the Court of Appeal in Culkin v Sligo County Council & Anor is not applicable in this instance and (ii) the jurisdiction of the Workplace Relations Commission to determine the complaint of unfair dismissal in circumstances where the Complainant agreed to terminate his employment and executed a settlement agreement.

The submissions included a copy of terms of the Settlement Agreement dated 13th June 2017 which was executed by the Complainant providing for termination of his employment with the Respondent by mutual agreement in consideration of a termination payment. Clause 8.2 of the Settlement Agreement states that the Employee agrees that he has no outstanding claims against the Company in connection with his employment by the Company and the termination thereof, and refers to a schedule of employment legislation listed in Schedule 1 to the Workplace Relations Act 2015 which includes the Unfair Dismissals Acts 1977-2007. The Settlement Agreement states:

” The Employee acknowledges that he has taken independent advice from his solicitor prior to signing this Agreement and that he understands the full meaning and effect of this Agreement. The Employee confirms he has entered this Agreement voluntarily and without coercion”.

Both parties representatives object to the hearing of this complaint due to concerns this will prejudice separate High Court proceedings which are already ongoing. A copy of the High Court Summary Summons has been furnished which I am informed has now been referred for plenary hearing. The consideration for termination of employment has not been discharged and the primary relief sought is payment of the compensation sum, interest and costs.

Two additional High Court Affidavits provided disclose that the Complainant has been accused of an alleged breach of the Settlement Agreement, which is denied and the Complainant says this is contrived. The Respondent alleges that the conduct of the Complainant has breached the terms and disentitles him to the termination payment under the Settlement Agreement. The Respondent counter-claims against the Complainant.

Section 13 of the Unfair Dismissals Acts 1977-2015 provides:

“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 this Act.”

The applicable law is considered in the Circuit Court decision of Judge Buckley in Hurley v Royal Yacht Club [1997] 8 ELR 225 in relation to a compromise agreement executed by an employee which did not specifically set out the waiver of his rights in relation to employment protection legislation. The Judge affirmed that employers and employees can compromise claims under the Unfair Dismissals Acts 1977-2015 but this must be in circumstances where the person has an informed consent. The waiver of legal rights must specifically refer to the various Acts applicable, and the employee should be advised in writing that he should take appropriate legal advice as to his rights. This was endorsed by the High Court in Sunday Newspapers Ltd v Kinsella & Anor [2008] 19 ELR 53.

It is undisputed that a written Settlement Agreement was executed by the parties on 13th June 2017, both parties were legally advised, and the waiver of all rights by the Complainant includes his claims under the Unfair Dismissals Acts 1977-2015 and this clearly set out in writing in a schedule to the Agreement. The parties are now in dispute regarding alleged breaches of the Agreement, and the Complainant has issued legal proceedings seeking to enforce the terms of the Settlement Agreement.

The Complainant has made this complaint “strictly without prejudice” to his High Court proceedings. There is no challenge to the enforceability of the Settlement Agreement by either party in any documentation submitted, and in light of the verbal and written submissions made I find that a binding agreement was entered into by the parties whereby the Complainant waived his rights under the Unfair Dismissals Acts 1977-2015 and agreed to terminate his employment on 13th June 2017. There is no dismissal and the claim fails.

Given the outcome of the preliminary issue regarding jurisdiction that arises, I make no finding regarding the submissions of the parties regarding the application of Culkin v Sligo County Council & Anor.

The Application to adjourn the unfair dismissal complaint generally pending the outcome of other High Court litigation is refused. I find there is no dismissal as a binding Settlement Agreement was executed between the parties in accordance with Hurley v Royal Yacht Club [1997] 8 ELR 225 and the complaint fails.

Multiplicity of litigation, Henderson, Culkin v Sligo County Council & Anor, wrongful dismissal, Section 15 of the Unfair Dismissals Acts, Settlement Agreement