Complainant

Respondent

Anonymised Parties

Engineer

Retail

Representatives

Gerald Meagher Midland Legal Solicitors

Conor O'Gorman IBEC

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-00017082-001

25/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017082-002

25/01/2018

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

CA-00017085-001

25/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017085-002

25/01/2018

The Complainant was employed from February 2015 until the employment terminated on 18th August 2017. The Complainant was paid €50,000 gross per annum including a €5000.00 annual bonus. The Complainant referred complaints to the Workplace Relations Commission on 25th January 2018 alleging he had been unfairly dismissed and a further complaint under the Employment Equality Act, 1998 alleging he had been discriminated against on the basis of his Religion, Age and Race.

The complaints under the Employment Equality Act, 1998 – 2015 CA-00017082-002 and CA-00017085-002 were both withdrawn at the Hearing.

The Complainant under the Unfair Dismissals Act, 1977 CA-00017085-001 was confirmed as being a duplicate of CA-00017082-001

The Complainant commenced employment in February 2015 as Project Engineer on a fixed-term contract for one year. In March 2016 he was offered a permanent position as Facility Support Engineer, a position he held until he was made redundant. The Respondent stated that the complaint of unfair dismissal is refuted as the Complainant’s position was made redundant in line with provisions of the Redundancy Payments Act 2003. The fact of dismissal is also in dispute and the Complainant has signed a full and final settlement discharging all claims against the Respondent.

In February 2017 due to a business review the Complainant was informed that the Facilities Department where he was employed was undergoing a review which involved assessing the roles within the Department. The Complainant was informed that as a result of that review that his position may become redundant. In March 2017 the Complainant was advised that the review was ongoing and again that his position was under review. In the meantime other options within the business were explored to establish if there were alternative positions suitable to the Complainant’s skills. Unfortunately, there were no alternative positions identified and on 14th August 2017 once the review was completed the Complainant was informed by the Director of the Department that regrettably his position was to be made redundant.

The Complainant was offered his statutory redundancy and in addition the Complainant was offered an ex-gratia payment. The details of both payments were outlined in a settlement agreement which was provided to the Complainant on 14/08/2017. The Complainant was advised to take the settlement agreement away for consideration and to take legal advice on the matter. The Complainant was then given paid time off on 15th and 16th August 2018. The Complainant returned on 17th August 2018 and he signed the settlement agreement.

The Respondent referenced a Labour Court Decision of 17th December 2018 UDD 1868 in support of their argument that the complaints should be dismissed in light of the settlement agreement.

The Respondent stated that the Complainant was afforded two days off on 15th and 16th August 2017 to seek his own independent legal advice. The Complainant returned to the Respondent on 17th August 2017 and at a meeting with the named Technical Operations Manager the Complainant sought an extension of his redundancy by one month to enable him to get the Respondent to change their minds and to retain him in employment. The Complainant did not seek an extension of time to seek legal advice which he stated at the Hearing he was unable to do on either 15th or 16th August 2017.

The Respondent also stated that he had been advised that he should seek his own independent legal advice and towards that end he was afforded two day paid off work to do so. He did not report back to the Respondent that he had been unable to seek that advice but rather argued for an extension of time by one month to seek to persuade the Respondent to keep him in employment. This request for the extension was refused.

The Complainant argued that the Adjudication Officer does have jurisdiction to hear the complaint under the Unfair Dismissal Act, 1977 for the following reasons – The Complainant was not provided or given the opportunity to seek independent legal advice – The Complainant was advised of his redundancy at approximately 3.50pm on 15th August 2017 (by letter dated 14th August 2017) by The named Technical Operations Manager – this Manager advised him he had two options, accept the redundancy offer with a good reference and finish work with the Respondent on 18th August 2017 or decline it and his employment would terminate regardless on 18th August 2017 minus his salary, redundancy payment, ex-gratia payment or reference and he would have to fight for it in the courts. He was afforded time until 17th August 2017 to consider this.

While the Complainant is an educated man he is Palestine, muslin and his first language is not English. He did try to seek legal advice but was unable to get an appointment for some 10 days. The Terms of Settlement do not provide for any reference to legal advice or provide for a contribution towards obtaining independent legal advice.

The Complainant also argued that the terms of the settlement neither reflect the Complainant’s correct statutory redundancy and the ex-gratia element also includes payment in lieu of notice, discretionary bonus and ex-gratia sums.

Based on Section 13 of the Act of 1977 the Complainant argued that the terms of the settlement the Respondent seeks to rely on are null and void.

The Complainant gave direct evidence in relation to joining the Company as an Intern in July 2014 – as Project Engineer on a Fixed Term Contract of one year in February 2015. He outlined the work he was involved in over 2015 and 2016 and into 2017. He then outlined the process and his engagement with the Respondent in relation to his redundancy. The Complainant confirmed that he had been afforded two paid days off work, so he could seek independent legal advice. The Complainant stated that he had been unable to get an appointment for some 10 days as there was no Solicitor available.

The Complainant confirmed at the Hearing that he did not inform the Respondent that he was unable to get an appointment with a Solicitor not did he seek an extension of time to seek this legal advice but he confirmed he did seek an extension of one month for the purpose of persuading the Respondent to retain him in the employment.

I have carefully considered the written submissions of both Parties opened at the Hearing. I have listened carefully to the direct evidence of the Complainant at the Hearing. The Adjudication Officer also questioned both Parties at the Hearing. I have examined in detail the Terms of the Settlement Agreement dated 17th August 20217 and signed by both Parties. This clearly sets out the Complainant’s waiver of his rights under employment protection legislation, including the Unfair Dismissals Act, 1977. While the Terms of Settlement does not specifically refer to legal advice, both Parties confirmed at the Hearing that the Complainant had been afforded two paid days off by the Respondent on 15th and 16th August 2017 to seek his own legal advice.

I also refer to the recent Decision of the Labour Court in its Decision in Determination No. UDD 1868 Starrus Eco Holdings Ltd t/a Greenstar and Gerald O’Reilly in which the Labour Court decided as follows – “Having considered the Parties’ written and oral submissions, the Court finds that it does not have jurisdiction to go behind the waiver agreement entered into by the Parties. In all the circumstances therefore the appeal fails and the decision of the Adjudication Officer is upheld”

In accordance with Section 8(1)(c) of the Act I declare this complaint is not well founded as the Complainant is party to the Terms of Settlement dated 17th August 2017 signed by both the Complainant and the Respondent.

Unfair Dismissals Act – Terms of Settlement – Waiver Rights – Legal Advice – Labour Court Decision UDD 1868 – Complaint not well founded.