FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : KEELINGS RETAIL UNLIMITED COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - WASIM HASKIYA (REPRESENTED BY MIDLAND LEGAL SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00012963 CA-00017082-001. The Dispute The Act at Section 6(1) deems the dismissal of an employee, for the purposes of the Act, to be an unfair dismissal unless there were substantial grounds justifying the dismissal. The Respondent, at the hearing of the Court, advised the Court that the only matter in contest before the Court and consequently the only ‘defence’ of the Respondent, was the proposition that the Court lacked jurisdiction in this matter by virtue of a ‘Terms of Settlement’ agreement under the terms of which the Appellant waived his rights under the Act. In light of this submission the Court in the within appeal is required only to address the matters arising from the undisputed existence of the settlement agreement. The Court’s decision on that matter will dispose of the entire matter. The Act at Section 13 provides as follows:
The Court heard extensive submissions from the parties. The Court also heard evidence from Mr Des Ferris (a manager of the Respondent at the material time) and from the Appellant. Having considered all of this material the Court is satisfied that the relevant undisputed facts are as follows: The employment of the Appellant was terminated on 18thAugust 2017. On 15thAugust 2017 at approximately 3.00pm, the Appellant was advised that his position was to be made redundant and his employment terminated as a result. On that date he was provided with a covering letter and documentation setting out his statutory entitlement together with the detail of ex-gratia arrangements proposed to apply to him on the termination of his employment. The Respondent afforded the Appellant paid time off (of either one day according to the Appellant or of two days according to the Respondent manager) with effect from the end of the Appellant’s working day at 3.30pm on 15thAugust 2017. The Appellant and the Respondent’s manager engaged further at a meeting on 17thAugust 2018. At that meeting the Appellant sought a factual correction as regards the calculation of his statutory entitlements and that was agreed to by the Respondent’s manager following consultation by him with the finance department of the Respondent. The Appellant and the Respondent’s manager and Financial Controller signed a document entitled ‘Terms of Settlement’ and dated 17thAugust 2017. That document, in relevant part, states as follows: “The terms herein are to be in full and final settlement of all claims arising from the Claimant’s employment with Keelings and / or the termination thereof, howsoever arising whether by statute, common law or equity, in particular any entitlements or claims under..[a range of stated legislation including the Act]” and “I confirm that this document has been read over and explained to me prior to my signing it and that accordingly I both fully understand and accept the contents of this document in full” Summary position of the Respondent The Respondent contends that the Appellant, on 17thAugust 2017, signed a ‘Terms of Settlement’ agreement wherein he had waived his statutory rights under the Act and a range of other legislation. The Respondent made clear to the Court that its entire defence to the within complaint rested upon the contention that the Court was deprived of jurisdiction by reason of the existence of the ‘Terms of Settlement’ agreement. The Respondent submitted that it had reviewed the Appellant’s role over a period of months and decided that the position was redundant. The Appellant was informed of that decision on 15thAugust 2017 and he was advised that his employment would terminate on 18thAugust 2017. The Respondent provided the Appellant with details of the terms upon which the redundancy would take place which included both statutory and ex-gratia payments. He was, on 15thAugust, provided with a letter incorrectly dated the 14thAugust 2017 which, inter alia, contained following passage
The Respondent submitted that the Court is not permitted by the Act to go behind the terms of a valid waiver agreement. The Respondent referred the Court to UDD1868 Starrus Echo Holdings Ltd t/a Greenstar v Gerald O’Reilly wherein this Court stated
Summary evidence on behalf of the Respondent Mr Des Ferris, a manager of the Respondent gave testimony to the hearing. He said that he met the Appellant on 15thAugust and took him through the fact that his position was being made redundant and the detail of the terms to apply to that redundancy. He gave him a letter dated 14thAugust which accompanied other documentation and which the Appellant was told he could take away for consideration and in order that he could take advice if he wished. Mr Ferris also encouraged the Appellant at the meeting to take advice. The witness could not recall having encouraged the Appellant to take legal advice. The witness said that he advised the Appellant that he was being afforded two days’ paid leave in order to think about the matter of the redundancy and the Respondent’s offer of an ex-gratia payment. He asked the Appellant to return on the 18thAugust. Mr Ferris stated that he gave the Appellant the letter of the 14thAugust together with details of the offer of statutory and ex-gratia payments. He could not recall what other documentation may have been supplied to the Appellant. The witness stated that the Appellant, at the meeting of the 15thAugust, enquired as to what would happen if the Appellant did not agree to the terms on offer and the witness advised him that he would not receive the ex-gratia element of the offer. The witness stated that he did not say to the Appellant that he would not receive anything if he did not agree to the terms on offer and he did not threaten the Appellant in that regard. The witness was made aware between 15thAugust and 17thAugust that the Appellant had made direct contact with Ms Keeling, a Director of the respondent. He was not made aware that the Appellant contacted Mr Keeling or Mr Moran. On 17thAugust he met the Appellant. He did not ask him if he had received legal or other professional advice. The Appellant did ask for a correction to a calculation and that was done. The witness asked the financial controller to join the meeting. He asked the Appellant if he was happy to conclude the matter. The Appellant said that he was. The three persons present signed the Terms of Settlement agreement, they shook hands and the Appellant left the room. At the meeting of the 17thAugust the Appellant did ask the witness to re-consider the decision to make his position redundant and the witness said he did so momentarily before confirming his decision. The Appellant did not ask for more time to take legal advice. He did ask for an extension of 30 days without stating that he needed more time to secure legal advice. That request was refused. Summary position of the Appellant The Appellant submitted that on 15thAugust 2017 towards the end of his work day, without notice or consultation, he was handed a letter dated 14thAugust 2017 by Des Ferris on behalf of the Respondent. That letter notified him that his position was redundant and that his employment was being terminated as a result. He was handed a document with the letter of 14thAugust. He submitted that he was given the option of accepting the redundancy offer with a good reference and finishing work on the 18thAugust or, in the alternative, to decline that offer whereupon his employment would terminate on 18thAugust without payment of his salary, redundancy payment, ex-gratia payment or provision of a reference. He submitted that he was given until 17thAugust 2017 to sign and return the proposed ‘Terms of Settlement’ The Appellant was in shock and disbelief. He sent e-mails to David Keeling, the CEO of the Respondent and copied that e-mail to the finance Director David Moran setting out that he did not accept that he had been made redundant. He received no reply to those e-mails. He also e-mailed Caroline Keeling, a Director the Respondent, and received a brief acknowledgement from her. He called several legal firms in his locality on 16thAugust but was unable to get an appointment with a solicitor until 10 days later. His representative at the hearing ascribed that difficulty to the normal difficulty in getting a same day appointment with a solicitor and the effect of the time of the year on availability of legal advisers generally. He felt under pressure to sign the terms of settlement agreement. He had family responsibilities which placed economic duress upon him to sign the respondent’s document having particular regard to the threat of loss of payments in the event he did not accept the Respondent’s offer. It was submitted that while the Appellant is an educated person, he is a Palestinian person whose first language is not english. He is not familiar with the common law system and has difficulty understanding Irish employment law and particularly so in the absence of legal advice. He submitted that having regard to the circumstances and relevant case law the terms of the settlement agreement are null and void. Summary evidence of the Appellant On 15thAugust at approximately 3.00pm, which was close to the end of his working day, the Appellant received a phone call from Des Ferris, a manager of the Respondent, who called to his office a short few minutes later. Mr Ferris gave him three pieces of documentation advising him that his position was being made redundant and offering him specified amounts in respect of statutory payments and an ex-gratia payment. The Appellant was very angry and unhappy. He was distressed and could not think properly. He felt under duress because of his economic and family circumstances. Mr Ferris did not go through the documentation he gave the Appellant but did offer the Appellant one paid day off to think about it. He asked the Appellant to sign the documentation then and there. Mr Ferris did not advise him to get advice. The Appellant rang a range of solicitors in his general locality on 16thAugust but could not secure an appointment until 10 days later. Having received a paid day off on 16thAugust, he attended the workplace at 8.00am on 17thAugust. He received a phone call from Mr Ferris almost immediately upon his arrival and met him shortly thereafter. He asked Mr Ferris for a 30-day extension so that he could demonstrate how valuable he was to the Respondent. That request was refused. The Respondent did not enquire as whether he had received advice in relation to the matter. He had received the material on 15thAugust and did not sleep that night or on the succeeding night. The Appellant said that while he read the document given to him for signature on 17thAugust he did not understand its contents. Jurisdiction of the Court Having regard to the position of the Respondent to this appeal, the determination of this matter requires the Court to consider only if the dispute was settled by agreement between the parties as evidenced by the waiver signed by the Appellant on 17thAugust 2017. If the matter was settled in that manner the Appellant is estopped from proceeding with his complaint and the Adjudication Officer and this Court could not have jurisdiction in the matter. The Appellant relies on Section 13 of the Act in asserting that the document which was signed by both parties on 17thAugust could not result in a forfeiture of the Appellant’s statutory rights. The Act at Section 13 provides as follows:
In that decision this Court considered Talbot (Ireland) Ltd v Minister for Labour and Others [1985] 4 JISLL 87 which concerned an appeal from a decision of the Employment Appeals Tribunal under the Redundancy Payments Acts 1967 -1979; PMPA Insurance v Keenan & Ors [1983] I.R. 330, HC and [1985] ILRM 173, SC which concerned a claim by PMPA that outstanding arrears of equal pay due to a number of women employees had been settled by an agreement concluded with their trade Union; Donal Hurley v Royal Yacht Club [1997] ELR 225 wherein Buckley J, in the Circuit Court, considered if an agreement signed by the claimant accepting certain payments in full and final discharge of all claims precluded him from pursuing a claim for unfair dismissal against the Respondent under the Unfair Dismissals Acts 1977 – 2001; Fitzgerald v Pat the Baker [1999] ELR 227 where the Tribunal drew a distinction between settlements which were prepared and signed by parties after meaningful negotiations and professional advice having been sought and given, and settlements which were essentially imposed by one party on the other without negotiation or professional advice. This Court in its decision in the Sunday world case concluded as follows:
The document signed by the parties on 17thAugust 20017 did not emerge from meaningful negotiations between the parties and consequently it must be construed strictly against the Respondent. The Appellant has submitted and given evidence to the effect that he was not, at the meeting on the 15thAugust, advised to seek legal advice. The witness for the Respondent has given evidence that he did, on that date, encourage the Appellant to seek advice but could not recall whether he had advised the Appellant to seek legal advice. It is common case that the Respondent made no effort at the final meeting on 17thAugust to determine whether the Appellant had taken advice of any kind in the interval between 3.30pm on the 15thAugust and 8.00am on the 17thAugust. The Appellant has given evidence to the effect that, although he made attempts in that respect, he was not able to secure legal advice. The Respondent obviously could not challenge the evidence of the Appellant in this respect other than to submit that the Respondent found such a proposition to be lacking credibility. The Court concludes that professional legal advice was sought by the Appellant but that was not secured or given to him before his agreement to sign the waiver of his statutory rights. The Court further concludes that the Respondent made no effort on the 17thAugust to establish whether the Appellant was professionally advised by a legal or other professional practitioner before signing the document of settlement. The Court notes that the document signed on 17thAugust 2017 did contain a list of the statutes to which the waiver applied and that list included a reference to Act. The Court notes also that neither the Appellant nor the witness for the Respondent was able to recall before the Court the detail of the documentation supplied to the Appellant on the 15thAugust and specifically whether the text of any document supplied on the 15thAugust was identical to the text of the document signed on the 17th. The Court notes however that both submissions refer to a draft settlement agreement having been supplied by the Respondent to the Appellant on the 15thAugust. It was common case that the documentation included a letter which included encouragement to seek advice, a statement of the financial value of the Appellant’s statutory entitlement on termination and the financial value of an ex-gratia offer. Neither witness could say that the document which was signed on the 17thAugust or a draft thereof was included in the documentation supplied on the 15thalbeit the Appellant stated in evidence that a similar document may have been included in that documentation. The Appellant has given evidence as regards his shock at being informed at a meeting on 15thAugust of the intended termination of his employment on 18thAugust and he also gave evidence of the family economic circumstances which he said placed him under duress as a result. It is common case that, on the 15thAugust, the Appellant was told that he would not receive an ex-gratia payment on termination if he did not sign an agreement with the Respondent. The Court has concluded from the foregoing that no basis exists to conclude that the Appellant had an adequate opportunity to consider the document he signed on the 17thAugust which purported to waive his statutory rights under a range on legislation including the Act. In addition, there is no basis to conclude that the Appellant’s consent to waive his rights was based on a free and informed consent given by him with full knowledge of his legal rights. The Court has also concluded that the Respondent did not take adequate steps to ensure that the Appellant was, on 17thAugust 2017, capable of giving an informed consent to waive his statutory rights and took no steps to inquire into that matter at all. Having reached these conclusions, the Court cannot, having regard to the authorities adopted by this Court, find that • the agreement of the Appellant to waive statutory rights was supported by adequate consideration. • the waiver arose from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given. • the waiver was based on a free and informed consent given by the Appellant with full knowledge of his legal rights. • the employer made adequate efforts to ensure that the Appellant was capable of giving an informed consent although the employer did, by letter dated 14thAugust, remark that the Appellant could obtain advice if he wished. In those circumstances the Court does not find that the waiver document signed on the 17thAugust 2017 removes from the Court the jurisdiction to hear the within appeal. Having regard therefore to the fact that Respondent has placed sole reliance on the waiver document as a defence to the within complaint, the Court concludes that the dismissal of the Appellant was unfair. Determination For all of the reasons set out in this determination the Court is satisfied that the complaint herein is well founded. The Court notes that the Appellant was unemployed for a period of approximately three months following his dismissal and his testimony that he engaged in efforts to secure employment throughout that time. The Court notes that the Appellant’s earnings before dismissal were €55,000 per annum and that the Appellant secured employment in October 2017 but that his earnings in that employment were at a loss of €25,000 approx. per annum versus his earnings prior to his dismissal. The Court also notes the Appellant’s evidence that he made efforts from October 2017 onwards to secure employment at a higher rate of pay and that he succeeded in doing so such that he commenced a new employment in October 2019. The Court takes into account the Appellant’s testimony that he turned down approximately three offers of employment in the period between October 2017 and October 2019 which would have mitigated his annual losses by approximately €7,000 per annum. In all of the circumstances of this matter, the Court determines that the Appellant was unfairly dismissed and that the appropriate remedy is compensation for the loss he has suffered as a result of his dismissal. The Court takes account of the Appellant’s earnings prior to dismissal, his efforts to mitigate his losses and the fact that he did, for other reasons, decline approximately three offers of alternative employment. The Court, on that basis, measures the compensation which is fair and reasonable at €50,000. The Court orders the Respondent to pay compensation in that amount to the Appellant, less the ex-gratia payment of €20,000 made to the Appellant on termination. The net compensation amount to be paid to the Appellant on foot of this determination therefore is €30,000. The decision of the Adjudication Officer is set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
