FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : STARRUS ECO HOLDINGS LIMITED T/A GREENSTAR REPRESENTED BY DARACH MAC NAMARA BL INSTRUCTED BY ALLAN KENNEDY IN HOUSE SOLICITOR - AND - GERALD O' REILLY (REPRESENTED BY STEPHEN O'SULLIVAN BL INSTRUCTED BY LEE SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No:ADJ-00007709 CA-00010065-001
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 23 March 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20 November 2018 . The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This is an appeal by Mr Gerald O’Reilly (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00007709, dated 14 February 2018) under the Unfair Dismissals Act 1977 (‘the 1977 Act’). The Complainant’s Notice of Appeal was received by the Court on 23 March 2018. The Court heard the appeal in Dublin on 20 November 2018.
The Complainant was employed by Starrus Eco Holdings Limited T/A Greenstar (‘the Respondent’) as a Site/Yard Supervisor until the termination of his employment on 30 September 2016 on grounds of redundancy. In or around that time, the Parties entered into a waiver agreement which was evidenced in writing and which made specific reference, inter alia, to the 1977 Act. The Complainant received and retained an ex gratia payment in consideration of his entering into the waiver agreement. The Complainant availed himself of the opportunity to take independent legal advice prior to signing the waiver agreement.
Submissions
Counsel for the Complainant urged the Court to go behind the waiver agreement as, in his submission, the Complainant - in signing the agreement - had relied and acted on a misrepresentation made to him by a representative of the Respondent. In support of his submission in this regard, Counsel directed the Court to a decision of the UK Employment Appeal Tribunal (Smith and Others v Jackson Lloyd Ltd and Another(2014) UKEAT/0127/13, [2014] All ER (D) 157 (Apr).
Counsel for the Respondent submitted that this Court does not have jurisdiction to consider the within appeal in circumstances where the Parties concluded a legally binding compromise agreement in which the Complainant has waived his statutory right to pursue a claim under the 1977 Act, which agreement he entered into with benefit of independent legal advice.
Decision
Having considered the Parties’ written and oral submissions, the Court finds that it does not have jurisdiction to go behind the wavier agreement entered into by the Parties. In all the circumstances, therefore, the appeal fails and the decision of the Adjudication Officer is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
MK______________________
17 December 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.