ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006034
Parties:
| Complainant | Respondent |
Anonymised Parties | A Showroom Host | Car Sales Company |
Complaint(s):
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-00008223-001 | 17/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00008223-002 | 17/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00008223-003 | 17/11/2016 |
Date of Adjudication Hearing: 04/07/2017 and 14/02/2018
Workplace Relations Commission Adjudication Officer: Michael Hayes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant was employed as a showroom host from 1st of April 2015 until the 17th of August 2016. She was paid €24,000 per annum and worked 37.5 hours per week. Oral evidence was heard and the parties made written and oral submission to the hearing. Note: 1. This complaint was duplicated on the system as adjudication reference ADJ-00006036 and duplicated invitations were sent for the hearing. The matter was considered at hearing and I have decided to hear the complaint under adjudication reference number ADJ-00006034. Note: 2. A further complaint adjudication reference number ADJ-00009065 submitted by the complainant under the Protected Disclosures Act, 2014 was withdrawn at hearing and confirmed in writing by the solicitor for the complainant. |
Preliminary Issue(s):
The respondent submits in summary that the complainant is estopped from bringing the herein complaints on foot of a settlement agreement of the 19th of August 2016 (copy submitted). The respondent has complied with the full terms of the settlement agreement and relies upon various legal authorities to justify its position (full details provided). The respondent has satisfied the criteria set out in those cases in that the terms of the settlement agreement “make it clear that it compromises any and all claims arising from the Complainant’s employment relationship with the Respondent and/or the termination thereof.” She was advised to take legal advice and in signing the agreement acknowledged that she took appropriate advice from her trade union.
The complainant submits that the advice she took from her trade union (named official) who was neither a solicitor or a barrister and such advice therefore can’t be construed as independent legal advice. The settlement agreement (Para 3 - Disclosure) provides for disclosure only to named parties including her legal advisor and he was not a legal advisor. There was an obligation on the respondent to advise the complainant to seek legal advice. It is normal for an employer when it includes a legal independent advice requirement in a settlement agreement to pay a contribution towards the legal costs. She was placed under extreme pressure to enter into the agreement. The settlement agreement is not a bona fide agreement as the redundancy was not a bona fide redundancy. It was contrived to dismiss her because she refused to engage in a fraudulent financial practice. Furthermore, the respondent replaced her following her redundancy. It is submitted that on the ground of public policy she should be allowed to pursue her complaints.
Findings and Conclusions:
In arriving at a decision in this matter I have considered the course of events as submitted by the parties in advance of the settlement agreement of the 19th of August 2016. In the first instance I note and accept that the redundancy process was ongoing whether contrived or not as alleged when the parties interrupted the process and executed the settlement agreement thereby concluding the process at that point. The settlement agreement was duly signed on the 19th of August 2016. The complainant alleges that the redundancy was not a genuine in that it was prompted by ill will towards her by her line manager. She had rebuked him for engaging in fraudulent financial practice in or around June 2016 and advised him to discontinue but he refused. She would not co-operate with him in this regard and on the day her employment ended she again told him to discontinue. This is denied by the respondent which submits that even if were true no formal complaint was made in this regard to the proper authorities either internally or externally. I find that the complainant entered into the settlement agreement with the respondent at a point in time in the full knowledge of the events which have been described to me. Additionally, it is submitted by the complainant that the redundancy process was procedurally flawed and she adverted to one of those grounds (the decision to make her redundant had been taken in advance of the process) in her email of the 8th of July 2016 (denied by the respondent by email on the same day). She cites further grounds of procedural flaw and breaches by the respondent of its own policies in the matter. These alleged breaches and flaws were known to the complainant at the time she signed the settlement agreement. They are denied by the respondent. I find that there were other avenues of redress open to the complainant at the time she signed the agreement. In her email to the respondent of the 31st of October the complainant refers to a former colleague having been interviewed for her position prior to her termination and appointed two weeks after that date. The respondent submitted that the role was not replaced nor was anybody interviewed for the role. A warranty clerk which is a technical role was interviewed and appointed in September. The salespersons became the hosts. It was not possible to train the complainant in warranty as it would require five years of training. I am satisfied that the host role was not replaced post termination. I have carefully considered the evidence adduced, the submissions made and the legal authorities relied upon as it relates to the waiver agreementand am satisfied that in its plain reading it reasonably satisfies the legal norm. It is offensive to the complainant in clauses 3 and 5. The former as the named trade union official is not a legal advisor and the latter on the basis that the self-same individual is not capable of giving legal advice for the same reason. Firstly, the complainant has discussed and considered the herein complaints within the context of clause 3 with her solicitor during these proceedings and secondly, I am of the view that regardless of his legal qualification the trade union official is quite capable of providing legal advice in respect of employment law issues and associated matters. In fact, he would be giving such advice on a regular basis even as it relates to settlement agreements. If such advice was not directly available within his own knowledge it is well known that most large trade unions provide legal training to their officials and have their own legal departments which support trade union officials in the day to day conduct of their business. The provision of financial assistance in respect of legal advice in similar cases does occur but obviously not in all cases and more often in cases where the quantum is considerably higher than in the instant case. I find that the settlement agreement reached between the parties in this case meets the legal standard. |
Decision Preliminary Issue(s):
The respondent is entitled to rely on the protection of the settlement agreement reached with the complainant dated the 19th of August 2016 and the complainant is therefore estopped from pursuing the herein proceedings.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00008223-001: The complaint is not well founded. CA-00008223-002: The complaint is not well founded. CA-00008223-003: The complaint is not well founded. |
Dated: 3rd September 2018
Workplace Relations Commission Adjudication Officer: Michael Hayes