Complainant

Respondent

Anonymised Parties

A Former Director

Company B

Representatives

Richard Grogan & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025284-001

24/01/2019

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

CA-00025284-002

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025284-003

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-005

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-006

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-007

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-008

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-009

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025284-010

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025284-011

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00025284-012

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-013

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-014

24/01/2019

The complainant has lodged 13 claims against the above respondent Company B and two other associated companies Company A and Company C (In liquidation). The other claims are dealt with under ADJ-00019364 and ADJ-00019366. The claims were taken under section 7 of the Terms of Employment (Information) Act, 1994, Section 8 of the Unfair Dismissals Act, 1977, section 6 of the Payment of Wages Act, 1991, section 27 of the Organisation of Working Time Act, 1997, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 39 of the Redundancy Payments Act, 1967.

The within claims were received by the WRC on the 24th of January 2019 and I proceeded to a joint hearing of all claims against all three respondents on the 9th of September 2019.   Both parties attended the hearing of these claims.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025284-001

24/01/2019

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

CA-00025284-002

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025284-003

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-005

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-006

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-007

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-008

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-009

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025284-010

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025284-011

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00025284-012

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-013

24/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025284-014

24/01/2019

The complainant submits that

The respondent has breached section 7 of the Terms of Employment (Information) Act, 1994, Section 8 of the Unfair Dismissals Act, 1977, section 6 of the Payment of Wages Act, 1991, section 27 of the Organisation of Working Time Act, 1997, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 39 of the Redundancy Payments Act, 1967.

The respondent submits that

The complainant and respondent reached a compromise agreement in full and final settlement of all matters relating to the complainant’s employment with Companies A, B and C (In Liquidation). This agreement was signed by the parties on 5th of December 2018.

Preliminary Issue-Jurisdiction and Settlement Agreement

It is submitted by the respondent that the claims the subject of these complaints have already been the subject of a settlement agreement between the parties and that the complainant who was a director of all three respondent companies in signing this agreement agreed to waive all rights under the Acts under which he has now submitted 13 claims. The agreement was submitted to the hearing and is signed by both parties and dated 5th of December 2018.

The respondent Mr. L advised the hearing that the settlement agreement was drawn up in full and final settlement of any and all outstanding claims by the complainant against the within respondent Company B and the other two named respondent companies Company A and Company C (In Liquidation) of which the complainant was also a Director.   The respondent Mr. L advised the hearing that the complainant had been a director of all three companies and that he had given the complainant everything he had asked for in terms of redundancy, outstanding wages and expenses as part of a settlement agreement.

Witness for the respondent Mr. L advised the hearing that he had received a letter from the complainant on 1st of November 2018 while the complainant was absent from work on sick leave in which the complainant was seeking to amicably resolve the outstanding issues.   The complainant in this letter of 1st of November 2018 requested payment of outstanding wages and expenses and requested that his position be made redundant in order that he could apply for statutory redundancy (the letter was submitted in evidence).     The respondent Mr. L advised the hearing that following discussions between himself and the complainant the parties had agreed a settlement regarding the complainant’s employment with the three named respondent companies and agreed that the complainant would be made redundant from 3rd of December 2018.   The complainant at the hearing did not deny agreeing to the settlement terms and did not deny that he signed the settlement agreement.

The complainant’s representative at the hearing sought to argue that the settlement agreement is not a legally enforceable document as the agreement in naming the three companies involved only names them by their initials and does not fully spell out the names of the three entities.   The complainant in this regard has sought to advance a claim that he is not bound by the settlement agreement as it does not clearly name the three entities involved.

Before I can consider the substantive issues, I have to consider whether this amounts to a settlement agreement and whether it means that I do not have jurisdiction to investigate this claim.

In deciding whether the WRC has jurisdiction to adjudicate upon these claims I note that the leading authority in relation to agreements which compromise employment statutory rights is Sunday Newspapers Ltd -v- Stephen Kinsella and Luke Bradley (2008) 19 E.L.R. 53. In that case, former employees who had entered into severance agreements sought to pursue complaints under the Protection of Employees (Fixed-Term Work) Act 2003 arguing that a waiver of their rights under the Act was void. In the High Court, Smyth J. allowed an appeal against the Labour Court making a number of generic findings with reference to decided caselaw. Firstly, he confirmed that an employee could enter into an agreement in relation to his or her statutory rights and the question of whether or not such rights had been compromised was a matter for the proper construction of the agreement itself. Secondly, he adopted Hurley -v- Royal Yacht Club [1997] E.L.R. 225 which considered the circumstances where claims can be legitimately compromised and held that an employee being offered a severance package was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should list the various applicable statutes or at least make it clear that they had been taken into account by the employee. In addition, he found that an employee should be advised in writing to seek appropriate advice as to their rights and in the absence of such advice, a severance agreement waiving statutory rights would be void. Recognising the need to enable parties to enter into settlement agreements, this Judgment was recently approved by the High Court in Board of Management of Malahide Community School -v- Conaty Irish Employment Law Journal 2019, 16(3), 85-87 so long as there is informed consent.   In Irish Life Assurance PLC -v- John Healy EDA 1514 (2016) 27 E.L.R. 211, the Labour Court held that having entered into and acted upon a financial settlement of High Court Proceedings with the benefit of legal representation which compromised and waived all claims arising from the claimant’s employment with the respondent, the claimant was deemed to be estopped from pursuing a subsequent complaint under the Employment Equality Acts.

The settlement agreement in this case clearly sets out that it covers claims under all of the acts listed here namely the Terms of Employment (Information) Act, 1994, the Unfair Dismissals Act, 1977, the Payment of Wages Act, 1991, Organisation of Working Time Act, 1997, the Minimum Notice & Terms of Employment Act, 1973 and Section 39 of the Redundancy Payments Act, 1967 and under which the complainant has now lodged claims with the WRC.

Firstly, the settlement agreement appears to be clear in stating the payment was being made to the complainant in “full and final settlement of any claim arising in relation to (the complainants) employment” it also states that the complainant is “waiving any right to take any claim against the company (or any member of its group”.     I am therefore satisfied that as a matter of construction, the compromise agreement herein was intended as full and final settlement of any claim arising from the Parties’ employment relationship including complaints under the Terms of Employment (Information) Act, 1994, the Unfair Dismissals Act, 1977, the Payment of Wages Act, 1991, Organisation of Working Time Act, 1997,   the Minimum Notice & Terms of Employment Act, 1973 and Section 39 of the Redundancy Payments Act, 1967.   In addition, I note that the complainant in this case was a director of all three companies against whom he had now lodged claims.

Secondly, I must be satisfied that there was informed consent. The settlement agreement expressly states that the Complainant was advised in writing to seek legal advice as to his rights and acknowledged that he had availed of such advice by signing the agreement.   Therefore, I am satisfied that the complainant signed the settlement agreement with the benefit of “informed consent”.  

Thirdly, there was no evidence of oppression or undue pressure being brought to bear amounting to duress and in fact the respondent advised the hearing that it was the complainant who had approached him seeking to resolve matters in an amicable fashion and it was the complainant who advised the respondent as to what consideration he was requesting in order to resolve these matters.   A letter from the complainant to the respondent dates 1st of November 2018 was submitted as evidence of this claim.

Finally, it appears that both Parties acted upon the agreement with the Respondent paying over a sum of money and by the Complainant accepting same.   The respondent advised the hearing that the agreed sums had been paid.     In any event if it was the case that part of the agreed monies had not been paid and which formed part of the agreement then that is a matter for the complainant to pursue in another forum given that it forms part of an agreement/contract signed and entered into by both parties.   The respondent advised the hearing that the complainant had received his redundancy payment and the outstanding wages and expenses which formed the basis of the agreement.

In looking to precedent and caselaw involving matters of compromise agreements the Commission has consistently found that it does not have jurisdiction to go behind any such agreement entered into by the parties.

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.   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 in that case 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 in that case 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 lists all of the relevant legislation (including the Terms of Employment (Information) Act, 1994, the Unfair Dismissals Act, 1977, the Payment of Wages Act, 1991, Organisation of Working Time Act, 1997,   the Minimum Notice & Terms of Employment Act, 1973 and Section 39 of the Redundancy Payments Act, 1967, under which the complainant has subsequently sought to submit claims against the respondent,               );

2.       The Complainant clearly agreed that he was entering into the agreement in full and final settlement of any claims that he had or may have had against the Respondent;

3.         The complainant confirmed that he had obtained independent legal advice prior to accepting the terms of the offer

4.           The complainant confirmed that the settlement was in full and final settlement of any claim arising in relation to his employment and that he was waiving any right to take any claim against the company or any member of its group.

5.         In addition I note that the Complainant in this case is not an ordinary employee who is ignorant of his rights under employment legislation.   The complainant in this case was a director of all three companies against whom he has now lodged complaints. The complainant in seeking to reach an amicable conclusion to outstanding matters asked the respondent Mr. L to make his position redundant in order that he could claim has entitlement to statutory redundancy.   Mr. L acceded to his request and his position was made redundant.    The complainant by letter dated 1st of November 2018 asked to be made redundant and also requested his outstanding salary and expenses. The agreement between the parties dated 5th of December 2018 sets out that the settlement terms include the complainants outstanding wages and expenses as advised to the respondent by the complainant.

Having considered the totality of the evidence adduced in relation to this matter and having regard to caselaw and precedents in similar cases and circumstances I am satisfied that I have no jurisdiction to investigate these claims as the Complainant is party to the Terms of Settlement dated 5th of December 2018 signed by both the Complainant and the Respondent.

Having considered the totality of the evidence adduced in relation to this matter and having regard to caselaw and precedents in similar cases and circumstances I am satisfied that I have no jurisdiction to investigate these claims as the Complainant is party to the Terms of Settlement dated 5th of December 2018 signed by both the Complainant and the Respondent.