ADJ-00024509

(4) Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

At the commencement of the Hearing the legal team for the Respondent advanced the position that the Adjudicator had no jurisdiction to deal with the claim as the Complainant had signed a legally binding agreement where the Complainant expressly waived his right to pursue a claim under the Unfair Dismissal Act 1977. Submissions were taken on this issue and then the substantive issue of constructive dismissal was heard by the Adjudicator reserving my decision on the preliminary issue of jurisdiction. In this Decision it is incumbent on me to deal with the submissions from both parties on the Preliminary issue first before deciding if I have jurisdiction to deal with the substantive issue of the claim for unfair dismissal. It is common case that the parties had a disagreement at work in May 2019. This involved an incident at work with a forklift and the parties exchanged heated words and the Respondent suggested the Complainant behaved in an aggressive and intimidating way to the Owner and his wife in an upstairs office. Subsequent to these events the Respondent initiated disciplinary action against the Complainant. A number of discussions were held outside of the work place on how the matter could be resolved to the mutual satisfaction of both parties. The conclusion of these discussions resulted in the parties signing a Severance Agreement on June 26th 2019, a copy of which was provided to the Adjudicator. This agreement stated that the Complainants “employment with the Employer will terminate on 21st June 2019 by mutual agreement”. In this agreement the Complainant received a sum of money, a car and his notice entitlements in consideration for the termination of his employment. Clause 4.1 of the Agreement stated that the settlement was in “full and final settlement of all claims that you have or may have against the Employer arising out of or in connection with your employment and its termination… and (Clause 4.2 states) it is acknowledged that the reference in Clause 4.1 included but is not limited to….inter alia.. The Unfair Dismissals Act 1977. “ Clause 8 of the Severance Agreement offers the Complainant in the Clause titled “Payment of Legal Advisor Fees” the opportunity for the Complainant to take legal advice “connected with the termination of employment and on concluding the Termination Agreement” and that the Respondent will pay a sum of 250 Euros to the Complainants Legal Advisors for this advice to the Complainant. The Complainants main case was that he signed this Termination Agreement while he was under duress and he is now seeking to have the provisions of that agreement set aside so that he can pursue his claim for Unfair Dismissal. The Respondent provided a number of legal precedents, both from the WRC, Labour Court and Circuit Court to promote their view of the Jurisprudence regarding Severance Agreements and the waiver of claims preventing the Adjudicator from having jurisdiction to hear the unfair dismissal claim in similar circumstances. It also transpired at the Hearing that the Complainant had the benefit of consulting two Independent HR Consultants, both seasoned professionals, prior to signing the Severance Agreement. It also was evidenced at the Hearing that the Complainant entered into a negotiation with the Respondent by email where he set out a demand for his termination. This email, dated May 29th 2019 also includes at the start of the email “ I have now spoken at length with my advisor”.     This confirms that the Complainant had the benefit of independent advice prior to him agreeing to the termination of his employment and the Severance Agreement almost four weeks later on June 26th 2019. So in summary there was no evidence offered that the Complainant was dismissed by the Respondent but instead they entered into a “mutual agreement” to terminate the employment relationship, that the Complainant entered into negotiations with the Respondent by email on the terms of this termination, that the Complainant received independent and skilled advice prior to signing the Severance Agreement and the Complainant was offered by the Respondent to pay a sum of money towards the costs of a Termination and Severance Agreement , which he confirmed at the Hearing he did not take up this option. Clauses 4.1 and 4.2 of the Agreement stated “full and final settlement of all claims that you have or may have against the Employer arising out of or in connection with your employment and its termination… and (Clause 4.2 states) it is acknowledged that the reference in Clause 4.1 included but is not limited to….inter alia.. The Unfair Dismissals Act 1977. “.  The Complainant offered no medical evidence that he was under duress at the time of signing the agreement and at the Hearing the Complainant offered no clauses of the Agreement that were not implemented and the Respondent contested that any of the provisions of the agreement remained not implemented. Indeed the Respondnet argued that the matter of duress was not a matter an Adjudicator can adjudicate on in an unfair dismissal case as this is a different matter than an decision on dismissal. I am satisfied that the Complainant has not offered any just cause for me to consider the Severance Agreement void, provided no evidence he was under duress, that he received independent expert advice from two Consultants prior to signing the agreement, was offered a contribution to his legal costs of reviewing the Agreement and the Agreement contains a clause that specifically precludes the Complainant from pursuing a complaint under the Unfair Dismissals Act 1977. Having considered the oral and written submissions of the Parties the Adjudicator decides that I do not have jurisdiction to go beyond the waiver agreement entered into by the Parties and the claim for Unfair Dismissal fails accordingly.