ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Parties |
| Complainant | Respondent |
Anonymised Parties | A HR Administrator | A Medical Devices Company |
Representatives |
|
Complaints:
Act | Complaints Reference No. | Date of Receipt |
CA-00026868-001 | ||
CA-00026868-002 | ||
CA-00026869-001 | ||
CA-00026869-002 | ||
CA-00026870-001 | ||
CA-00026870-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant commenced employment as a HR Specialist with the Respondent on June 13th 2016. He, and one other longer-serving HR Specialist provided support to the HR Manager in the day-to-day running of the Human Resources department as part of a HR team of three people in total.
The Complainant was a full-time employee and worked 39 hours per week. He was paid €1,320.44 gross and his VHI premium of €52.53 per fortnight was also paid.
The complaints with reference numbers CA-00026869 and CA-00026870 are duplicates and were withdrawn at the hearing which proceeded to consider complaints CA-00026868-001 and 002. |
Summary of Respondent’s Case:
The Respondent develops, manufactures and markets medical devices
The Complainant’s employment was terminated by reason of redundancy on Friday, 5 October 2018, following a significant reduction in the workload allocated to the HR team and as the team was being cut from three to two.
The Respondent applied a last-in, first-out approach to the redundancy selection process. It was solely on that basis that the Complainant was selected.
There were a number of consultative meetings and discussions with the complainant before the redundancy took effect and alternatives were discussed.
The Complainant states in his complaint form that he commenced new employment on Monday, October 8th 2018; therefore immediately after leaving the employment of the Respondent.
The Complainant was paid his statutory redundancy entitlement. He also received an additional lump sum termination payment in consideration of his signing a contractually binding agreement (exhibited in evidence) in full and final settlement of any and all claims, potential claims or causes of action against the Respondent.
That agreement specifically referred to claims under the Unfair Dismissals Acts 1977 to 2007 and the Employment Equality Acts 1998 to 2011 which are the claims in the current complaint.
The Complainant is now breaching that agreement and attempting to pursue claims under the above-mentioned Acts, despite having signed the agreement and having accepted and retained the sums and payments provided for in the agreement.
The Complainant submitted his two complaints three times to the WRC on 7 March 2019. The WRC amalgamated the three sets of complaints under the reference CA-00026868/ADJ-00020437. The Complainant’s complaints are under the Unfair Dismissals Act, 1977, alleging that he was unfairly dismissed, and the Employment Equality Act, 1998: The Complainant alleges that the Respondent discriminated against him by reason of his gender and in respect of promotion, victimisation, harassment and discriminatory conditions of employment. He says that the most recent date of discrimination was 5 September 2018 (the date of the above-mentioned agreement); more than six months before he submitted his claim on 7 March 2019. It is submitted that the Complainant has clearly waived his right to pursue these claims by reason of his having executed an agreement in full and final settlement of all claims, potential claims or causes of action against the Respondent.
In Starrus Eco Holdings Limited t/a Greenstar and Gerald O’Reilly, UDD1868 (December 2018) the Complainant in that case brought a claim under the Unfair Dismissals Acts after having signed an agreement that appears to have been almost identical to that executed by the Complainant in the instant matter. The Labour Court concluded that it did “not have jurisdiction to go behind the waiver agreement entered into by the Parties”.
In Daly v Home Fare Services KSG, ADJ-00012871 the Complainant in that case had also sought to pursue a claim for unfair dismissal after having signed a waiver. The Adjudication Officer determined that;
“the severance agreement as signed by the parties compromises any claim that Complainant has under the Unfair Dismissals Acts”.
In the case of Engineer v Retail, ADJ-00012963 that Complainant was made redundant. The Complainant signed a full and final settlement agreement and had been advised by the Respondent to seek his own independent legal advice. The Adjudication Officer found that the settlement agreement clearly set out what rights the Complainant was waiving under employment protection legislation and that he was given time to seek his own legal advice. The Adjudication Officer determined that the complaint was not well founded as the Complainant was party to a settlement agreement which was signed by both parties.
In the matter of Healy v Irish Life Assurance plc, DEC-E2015-002 Mr. Healy issued High Court Proceedings against his employer in 2000. In 2011. He attended settlement talks at which a full and final settlement was reached, documented and signed by all parties. Mr. Healy then made a complaint to under the Employment Equality Acts stating that he was not aware what was going on at the talks and that he was rushed into making a decision.
The Adjudication Officer determined that the settlement agreement signed between the parties stated that it was full and final which means full and final. He noted that Mr. Healy could not ignore the obligations placed on him by signing the agreement and decided that he did not have jurisdiction to hear the case.
In the Healy case, the Adjudication Officer referred to the Supreme Court’s decision in Doran v Thompson, [1978] IR 223. As the Adjudication Officer noted, the Court held in that case that:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it [is] well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and the[n] he may be restrained in equity from acting inconsistently with such promise or assurance.”
Having referred to the Doran decision, the Adjudication Officer in Healy went on to find that:
“full and final means just that, it is full and final.”
It is, of course, understood that the employee’s consent must be informed in that he understands what he is agreeing when he signs a waiver or settlement agreement. In the well-known case of Hurley v Royal Cork Yacht Club, [1977] ELR 225, Buckley J.in the Circuit Court considered a waiver clause in an agreement in the context of the Unfair Dismissals Acts and stated that:
“I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights….”
It is submitted that Buckley J. was concerned to ensure that employees understand the agreements that they are signing and the implications of same in terms of their rights under legislation. In this instance, however, it is noted that:
1. The Agreement which the complainant signed clearly listed all of the relevant legislation (including the unfair dismissals and employment equality legislation);
2. The Complainant clearly agreed that he had no claims under that legislation and that he was entering into the agreement in full and final settlement of any and all claims that he had or may have had against the Respondent;
3. He confirmed (at clause 10) that he had been advised (and given time) to take independent legal advice;
4. He confirmed (at clause 10) that he understood the full meaning and effect of the agreement;
5. The Complainant is not an ordinary employee who is ignorant of his rights under employment legislation. He describes himself on his LinkedIn profile as having a “great level of knowledge in Irish Employment Law”, as having held a series of HR positions in a variety of organisations over the course of his career, as holding a degree in human resource management and as having “[s]trong [n]egotiating skills”. He also refers to his HR experience in his claim form.
The concerns that Buckley J. clearly harboured in the Hurley case do not arise in this case as the Complainant had particular knowledge and professional expertise, clearly understood the effect of the agreement that he was signing, was advised to take independent legal advice, confirmed that he understood the full meaning and effect of the agreement and had the relevant legislation listed out in black and white. The Complainant has never suggested that he did not understand the implications of the agreement that he was signing.
The Respondent’s solicitors wrote to the Complainant on 17 May 2019 pointing out that his having instituted the instant claims was a breach of contract. The Complainant did not respond to that correspondence and appears to have ignored it.
The Complainant has retained the monies paid to him on foot of the agreement and never suggested that he would return same.
The Respondent submits that The Complainant’s employment was terminated by reason of redundancy on Friday, 5 October 2018 and he commenced alternative employment on the following Monday.
He benefitted from a redundancy lump sum payment and a substantial additional termination payment although, fortunately, he was never without employment. He has never returned the said payment, having instead retained it.
The Complainant has clearly waived his right to pursue the instant claims by reason of his having executed an agreement in full and final settlement of all claims, potential claims or causes of action against the Respondent.
The Complainant, having particular specialist expertise, experience and knowledge, was well aware of the impact of that agreement and has never alleged the contrary.
In a string of previous decisions, the Labour Court and WRC have deemed themselves to have no jurisdiction in such cases.
Even if the Adjudication Officer were to conclude that the WRC does have jurisdiction, the claim under the Employment Equality Acts is manifestly out of time, having been submitted more than 6 months after the alleged last incident of discrimination (5 September 2018). However, the period of time that had elapsed is actually far greater in circumstances where the Complainant’s account of events in the claim form appears to refer only to supposed discrimination in 2017. All that happened on 5 September 2018 is that he signed the agreement.
Similarly, if the Adjudication Officer were to find that they have jurisdiction, the Unfair Dismissal claim is ill-founded as the termination arose due to redundancy; a fact that is acknowledged and accepted in the agreement by the Complainant. The dismissal was, therefore, fair in any event. Even if it had not been, it does not appear that the Complainant has suffered any loss. Rather, he would appear to have generated a tidy profit. |
Summary of Complainant’s Case:
The complainant accepts that he did sign a compromise agreement but says that he was forced into doing so. The respondent knew that he was going to Canada for a period and he was placed under pressure to sign the document before he left.
He did not offer any evidence in relation to the complaint under the Employment Equality Acts. |
Findings and Conclusions:
The respondent has submitted extensive legal authorities on the status of a compromise agreement above. The complainant alleged that he was put under pressure to sign the document, and in particular that he was given only a few days to sign it. Unfortunately for him this was not borne out by closer scrutiny of the facts, including of his own evidence. In fact, he was given two weeks to consider the proposals. Initially, he sought to suggest that as he was going to Canada this meant that the actual time he had to complete the process was foreshortened. This was not the case. In fact, it emerged that he returned to Ireland well within the two week period and had no need to sign off on the document before he left. He arrived back in Ireland three clear days before the deadline set for signature by the respondent. Indeed, even an absence in Canada would not have excluded the possibility of completing the documentation from there, had he needed to do so and this explanation for having to sign before he departed has no credibility. The complainant’s signature appears on the compromise agreement document which confirms his agreement to an acknowledgement that he; ‘has been advised (and given time) to take independent legal advice from (sic) prior to signing this agreement and that he understands the full legal meaning and effect of same’. Finally, he accepted the ex gratia payment arising under the agreement. All of these facts are fatal to his complaint under the Unfair Dismissals Acts given the legal authorities outlined in the respondent ‘s submission which I am both obliged to follow and do so in any event on their merits. Given my findings on the settlement agreement that will determine the matter but in any event it is also clear from the evidence that a genuine redundancy situation existed and the respondent operated the required consultation and selection process. The respondent laid considerable emphasis on the complainant’s stated expertise in, and familiarity with HR processes and this robs his claim that he was placed under pressure of any residual credibility it may have had. The complaint under the Employment Equality Acts falls well outside the time limits and is not within jurisdiction. Indeed, the complaints have absolutely no basis and they fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
As noted above the complaints with reference numbers CA-00026869 and CA-00026870 are duplicates and were withdrawn at the hearing. For the reasons set out above complaints CA-00026868-001 and 002 are not upheld and they are dismissed. |
Dated: 10th October 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Dismissal, Compromise Agreement. |