Complainant

Respondent

Anonymised Parties

A Catering Assistant

A Catering Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00016972-001

19/01/2018

The Complainant was employed by the Respondent as a Catering Assistant from 15 February, 2009 until 30 August, 2017 when her employment was terminated. The Complainant claims that she was unfairly dismissed from her employment after disciplinary proceedings were initiated against her on the grounds that she had not been wearing a pair of safety shoes correctly. The Complainant contends that her dismissal was both procedurally and substantively unfair and that she was coerced into signing a settlement agreement to waive her rights under the Unfair Dismissals Acts.

The Respondent disputes the claim of unfair dismissal and contends that the Complainant resigned from her position prior to a disciplinary hearing having taken place in relation to concerns that she failed to wear safety shoes properly. The Respondent contends that a severance agreement was subsequently executed by the Complainant which waived her entitlement to bring a claim under the Unfair Dismissals Acts. The Respondent contends, therefore, that the WRC does not have any jurisdiction to inquire into the complaint.

The Respondent submits that an investigation was commenced on 8 August 2017 as a result of concerns that the Complainant had breached safety procedures by failing to wear safety shoes at work. ln that context, a meeting was held with the Complainant and her Trade Union representative, Mr. B. The Complainant stated at this meeting that she was wearing her safety shoes with the back of the shoes pushed down as they were hurting her feet. The Respondent subsequently met with a number of other witnesses during the course of their investigation who stated as follows:

1. The Complainant was provided with a new pair of safety shoes known as "Old School type" at the end of May 2017.

2. ln or around 8 July 2017, the Complainant approached a General Manager asking for a new pair of safety shoes as the pair she was wearing at the time were apparently hurting her feet. A new pair was immediately ordered but it would be the end of the month before they arrived.

3. On 25 July 2017, the Complainant requested a pair of safety shoes from the contract cleaners on site and was provided with a new pair of shoes but refused to wear them because they were 'too heavy'.

4. The Complainant was observed wearing her shoes with the heels pushed down. She was informed that she should not be wearing the shoes in that way and she then agreed to wear the shoes which she had previously claimed were too heavy.

Following the investigation in this matter, it was decided to invite the Complainant to a disciplinary hearing.

On 29 August 2017, the Complainant was invited to a disciplinary hearing to be held on 31 August, 2017. This was subsequently changed, on request of the Complainant, to 30 August, 2017. Once again, the Complainant was represented by her Trade Union representative, Mr. B. Prior to the hearing having commenced, Mr. B approached the Respondent’s HR Director, Ms. H, to enquire about the possibility of a severance payment. Having considered the matter, the Complainant ultimately resigned from her employment. A termination payment of €3,000 was paid to her which was reflected in a written settlement agreement. The Complainant was advised by Mr. B on the terms of the written settlement agreement and her signature was also witnessed by him.

Preliminary Issue

The Respondent submits that the WRC does not have jurisdiction to inquire into the Complainant’s claim under the Unfair Dismissals Acts in circumstances where she signed a written settlement agreement waving any future claims against the Respondent. ln that context, and as highlighted above, Mr. B, on the instructions of the Complainant, approached Ms. H, HR Director, prior to the disciplinary hearing which was scheduled to take place on 30 August 2017. The Complainant agreed that she would resign in return for a severance payment of €3,000. The written severance agreement provided that the Complainant would accept this sum in full and final settlement of all claims arising from her employment, including the Unfair Dismissals Acts.

The Respondent submits that the Agreement provided as follows:

"l confirm that this document has been read over and explained to me prior to my signing same, that I have been given the opportunity to seek independent legal advice prior to my signing same and that, accordingly I both understand and accept the contents thereof in in full".

The Respondent referred to the case of Hurley -v- Royal Yacht Club[1]. It submits that this case, which is the seminal case for such matters, essentially sets out two distinct criteria that must be satisfied when it comes to the executions of settlement agreements. These are:

1. The agreement must specifically state the legislation the employee agrees to waive claims under; and

2. The employee is adequately advised.

The Respondent submits that the Complainant, in her claim form, has alleged that she was "coerced" into signing a disclaimer. lt is submitted that any such statement is simply absurd in circumstances where the Complainant's union official approached the Respondent about the possibility of a severance payment. An agreement was subsequently reached with the Complainant who was at all times advised by her union representative on the matter.

ln summary, the Respondent submits as follows:

1. ln her claim form, the Complainant has alleged that she was dismissed for not wearing safety shoes in an appropriate manner. This statement is grossly inaccurate. lnstead, the Complainant resigned from her employment prior to a disciplinary hearing having taken place in relation to concerns that she failed to wear the proper safety shoes. The Respondent had not even heard from the Complainant at that stage. lt certainly had not made any decision to terminate her employment for those reasons.

2. The Complainant was not "coerced" into signing a disclaimer as alleged by the Complainant. The possibility of a severance agreement was first raised by the Complainant's trade union official in advance of the disciplinary hearing.

3. A severance agreement was subsequently executed by the Complainant which specifically set out the pieces of employment legislation which the Complainant would be compromising claims under. Furthermore, she was advised by her Union representative on the agreement. ln that context, there was most certainly informed consent to the Waiver Agreement.

4. It was submitted that there is no obligation on the Respondent to ask an employee to get a second opinion on the provisions of the Waiver Agreement when they have already been advised by their Union official.

5. It is submitted that it would involve a radical departure in the law if an employer were not entitled to accept that an employee had not been adequately advised by an employee's union representative on the terms of a Waiver Agreement.

5. It is submitted that the Complainant is bound by the terms of the Waiver Agreement and the Workplace Relations Commission does not have jurisdiction to hear her claim under the unfair Dismissals Acts.

The Respondent also relied upon the EAT case of An Employer -v- An Employee[2] in support of its position on the issue of jurisdiction.

The Complainant submits that in the course of her duties, she was required to wear safety shoes. She had informed the Respondent on a prior occasion that the safety shoes caused her pain and had caused her an injury. Thereafter, the Complainant continued to wear the safety shoes albeit not in the appropriate manner. Notwithstanding the fact that the Complainant had previously complained about the shoes to the Respondent and that they had caused her an injury and continued to cause her pain, the Complainant was dismissed from her position in breach of fair procedures and natural justice.

Following her dismissal, the Complainant was offered €3,000 by the Respondent in return for signing a disclaimer which purported to waive any legal rights against the Respondent. The Complainant was not provided with an opportunity to seek and obtain independent legal advice prior to signing the said disclaimer. The Complainant was coerced into signing the disclaimer. Once she had an opportunity to consider her position and in light of her deplorable treatment by the Respondent both before and at the time of her dismissal, she refused to accept the payment of €3,000.

It was submitted that the Complainant had worked with the Respondent for in excess of eight years. Subsequent to her complaint to the Respondent in relation to the safety shoes, the Complainant’s difficulties were not addressed. It was submitted that the Respondent failed to provide the Complainant with an alternative pair of shoes which would not cause injury or pain to her. Therefore, it was submitted that the Respondent failed in its duty to provide and maintain safe equipment within the workplace.

The Complainant submitted that between the date of her complaint about her footwear to the Respondent and the date of her dismissal, she was not given a verbal or written warning in relation to her footwear. At the time of the dismissal she was not afforded an opportunity to remedy the situation. It is therefore submitted that her dismissal was unfair and disproportionate in the circumstances.

It was submitted that the disclaimer signed by the Complainant, which purported to waive all legal rights, is void and non-binding. The Respondent informed the Complainant of the disclaimer on the 30 August, 2017 and requested that she sign it on the same day for which she would receive €3,000. In the circumstances and in the manner of her being presented with such an ultimatum, the Complainant felt coerced to sign the agreement. It is also submitted that the Respondent, a large national catering business has considerably more power, knowledge, experience and finances at its disposal than the Complainant. This, in and of itself, resulted in an unequal bargaining position which worked significantly in the Respondent’s favour.

Furthermore, it was submitted that the disclaimer is void and non-binding in circumstances where the Complainant was expected to sign it “on the spot” without being afforded time to seek independent legal advice and to consider the disclaimer and offer made.

The Complainant submits that it is a well-established principle of law that a party cannot contract out of statutory obligations. In this instance, it is submitted that the Respondent sought inappropriately to force the Complainant to renounce her rights pursuant to the Unfair Dismissal Acts. It was submitted that the Complainant is not estopped from pursuing a remedy under the Unfair Dismissals Acts given that section 13 of the 1977 Act clearly provides that an employee cannot contract out of the provisions of that Act. Therefore, it is respectfully submitted that the disclaimer signed by the Complainant is void ab initio and non-binding. The Respondent referred to the case of Cullinan -v- Reagecon Diagnostics Limited [3]in support of its position on this issue.

It was further submitted that any consideration of the fairness of the dismissal must also take account of the sanction imposed by the employer and whether that sanction was proportional in all of the circumstances.

It was submitted that there is no evidence that the Respondent gave adequate regard to the long and distinguished service given by the Complainant in reaching their decision to dismiss her. Furthermore, the act leading to the Complainants dismissal did not involve acts of criminality or aggression, nor did it pose any danger to anyone other than the Complainant herself. It is respectfully submitted that dismissal did not come within the band of reasonable responses in this instance.

It is further submitted that the Respondent failed to have regard to alternative sanctions. The Respondent failed to take account of the Complainant’s willingness to wear alternative footwear during the course of her work. It should be noted that the Complainant continued to wear the appropriate footwear to work despite the fact that they did not fit her properly and caused her pain and injury. It follows that the Respondent failed to consider whether alternative footwear or otherwise would address their apparent concerns as an alternative to dismissal.

In summary, the Complainant submits that:

1. The reason for which she was dismissed from her position was unfair and disproportionate in all of the circumstances;

2. She was dismissed in breach of principles of fair procedures and natural justice;

3. The Respondent failed in its duty to provide and maintain such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of the Complainant work contrary to section 8 of the Health, Safety and Welfare at Work Act, 2005.

4. Any purported disclaimer signed by her is void and non-binding as the opportunity to seek independent legal advice prior to signing was not afforded to her;

5. Further, or in the alternative, that any purported disclaimer signed by her was void and non-binding; the Complainant having been coerced into signing it.

6. Finally, or in the alternative, that any purported disclaimer signed by her was void and non- binding given that a party cannot “contract out” of rights that are afforded an individual on a statutory basis.

The Complainant relied upon a number of cases in support of its position, including the following: Khan -v- Health Services Executive [2008] IEHC 234; Mythen -v- The Employment Appeals Tribunal, Buttercrust Limited and Joseph Downes and Sons Limited [1989] 6 JIC 2901; Bigaignon -v- Powerteam Electrical Services Limited UD 939/2010; Michael Morales -v- Carton Bros. UD 835/2011; Marshall -v- Conduit Enterprise Ltd UD1293/2013 and Rafter -v- Connaught Gold Co-Op UD48/2014.

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether the Complainant has compromised her right to refer a complaint to the WRC under the Unfair Dismissals Acts on the basis of the waiver/settlement agreement which she signed upon the termination of her employment.

The Complainant does not dispute that she signed the waiver/settlement agreement on the date her employment was terminated. However, the Complainant contends that the purported agreement is void and non-binding for a number of reasons including that she was coerced into signing the agreement; was expected to sign it “on the spot” without being afforded the opportunity to seek independent legal advice to consider the disclaimer and offer made; and that a party cannot “contract out” of rights that are afforded an individual on a statutory basis.

The Respondent disputes the Complainant’s contention that the waiver/settlement agreement which she signed on 30 August, 2017 is not binding or that she was coerced into signing a disclaimer. The Respondent also disputes the fact of dismissal and contends that the Complainant’s Trade Union representative sought a termination agreement on her behalf prior to the disciplinary hearing having commenced in relation to an alleged serious breach of health and safety procedures. The Respondent further contends that a termination payment was ultimately agreed between the parties, and that after having been advised by her Trade Union representative in relation to the content, a waiver agreement was signed voluntarily by the Complainant.

In considering this issue, it is necessary to consider the circumstances leading up to the date upon which the Complainant’s was terminated and the context within which she signed the waiver/settlement agreement. In this regard, it was not in dispute that the Complainant had been suspended from work on full pay on 14 August, 2017 pending an investigation under the Company’s Disciplinary Procedures in relation to allegations that she had committed a serious breach of safety procedures by failing to wear Personal Protective Equipment appropriately. It was common case that an investigation meeting was held in relation to this matter and that the Complainant was subsequently invited to attend a disciplinary meeting on 30 August, 2017 which was scheduled to take place at a hotel.

It was not in dispute that the Complainant’s employment was terminated on 30 August, 2017 after she signed a waiver/severance agreement during the course of the meeting on this date. However, there was a conflict of evidence in relation to the precise nature of the interaction that took place between the parties at this meeting and whether or not the Complainant was ultimately coerced into signing the waiver/settlement agreement against her will.

In considering this case, I have taken into account the jurisprudence of the High Court Judgment of Smyth J. in the case of Sunday Newspapers -v- Kinsella & Anor . This case concerned a severance agreement purporting to compromise entitlements under the Protection of Employees (Fixed Terms Workers) Act 2003. Smyth J. held that the question of whether or not statutory rights have been compromised is a matter for the proper construction of the agreement itself and that informed consent and appropriate advice is crucial if the compromise is to be upheld. He went on to say that where an employee is being offered a severance package he or she is entitled to be advised of his or her entitlements under the employment protection legislation and any agreement should list the various applicable statutes or at least make it clear that the same has been taken into account by the employee. It was also held by Smyth J. on the issue as to whether or not the employee had received “appropriate advice” that “It is not imperative that it be professional legal advice in writing”.

I note that the Complainant was accompanied by her Trade Union Official, Mr. B, at the meeting on 30 August, 2017 and that the Key Account Manager, Mr. M, and HR Manager, Ms. H, attended on behalf of the Respondent. It is clear that the Complainant’s Trade Union representative, Mr. B, played a significant role in the events that transpired on this date including the negotiation of the settlement agreement. However, Mr. B did not attend the oral hearing, despite being requested to do so by the Complainant, and therefore, I did not have an opportunity to hear direct evidence from him in relation to this matter.

Notwithstanding the foregoing and based on the totality of the evidence adduced, I have found the Respondent’s evidence to be more compelling in relation to the circumstances that resulted in the termination of the Complainant’s employment and the signing of the waiver/severance agreement. In this regard, I have found the evidence of the Respondent’s witnesses, Mr. M, and Ms. H, to be consistent and reliable, and on balance, I prefer their account of the interaction that took place between the parties in relation to this matter on 30 August, 2017.

In coming to this conclusion, I am satisfied that the disciplinary process involving the Complainant was still ongoing at that juncture and I accept the Respondent’s evidence that a decision to dismiss the Complainant had neither been taken nor communicated to either her or her Trade Union representative at the disciplinary meeting on 30 August, 2017. Furthermore, I accept the Respondent’s evidence that the Complainant’s Trade Union representative approached the Respondent, on the Complainant’s behalf, prior to the commencement of the disciplinary meeting to enquire about the possibility of a severance payment. I accept the Respondent’s evidence that a severance agreement was subsequently negotiated directly between the Respondent and the Complainant’s Trade Union representative, with her full knowledge and consent and, that the Respondent did not apply any pressure on her to accept the agreement.  

I am satisfied that the Complainant had the advice of her Trade Union representative during the course of the negotiations that took place between the parties in relation to this matter on 30 August, 2017. I have examined the content of the written agreement which the Complainant signed on this date and it explicitly states that the severance payment was “in full and final settlement of all claims of every nature, type and kind whatsoever an howsoever arising from both my employment and the termination thereof with [the Respondent], both at Common Law and under Statute including the Unfair Dismissals Acts … ”. The Complainant accepted in evidence that she read and understood the contents of the agreement prior to signing the document on the material date in question.

Having regard to the totality of the evidence adduced, I am satisfied the Complainant signed the severance agreement of her own volition having been advised by her Trade Union representative, which provided that in return for a severance payment she accepted the terms of the severance in full and final settlement of all matters in relation to her employment with the Respondent and her consent to such an agreement was fully informed.

I find therefore that the severance agreement as signed by the parties compromises any claims the Complainant has arising from her employment with the Respondent under the Unfair Dismissals Acts. Accordingly, I find that I do not have jurisdiction to inquire into the within complaint.

I find that the severance agreement as signed by the parties compromises any claim the Complainant has under the Unfair Dismissals Acts. Accordingly, I find that I do not have any jurisdiction to inquire into the complaint made by the Complainant under the aforementioned legislation.

Unfair Dismissals Acts - Jurisdiction – Severance Agreement – Settlement - Complaint Compromised