UDD2025

1.Appeal of Adjudication Officer Decision No(s). ADJ-00019787 CA-00026260-001.

BACKGROUND:

2.This is a double appeal under section 8(a) of the Unfair Dismissals Act against a decision of an Adjudication Officer. The Worker appealed the decision to the Labour Court on 10 July 2019. The Employer appealed the decision to the Labour Court on 16 July 2019. The case came on for hearing before the Labour Court on 26 August 2020. The following is the Determination of the Court:

DETERMINATION:

A hearing before the Court of a joint appeal against the Decision of an Adjudication Officer ADJ-00019787 under the Unfair Dismissals Acts 1977 – 2015 (the Acts) was before the Court on 23^rdJanuary 2020. The appeals concerned a claim of unfair dismissal by Ms Pravila Gopalan against her former employer Tallaght University Hospital. The Adjudication Officer held that there were procedural deficiencies in how the Respondent dealt with the Complainant leading to her dismissal in circumstances where she already had an active final written warning on her file. On that basis she held that the dismissal was unfair and awarded the sum of €15,000 in compensation.

For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Pravila Gopalan will be referred to as “the Complainant” and Tallaght University Hospital will be referred to as “the Respondent”.

On the day of the hearing of the appeals before the Court, the parties sought an opportunity to have discussions, following which the Court was informed that the matter had been settled on terms agreed between the parties. The parties indicated that the appeal would be withdrawn and sought 21 days to inform the Court.

On 11^thFebruary 2020, the Court received a letter from Ms Bernadette Thornton, SIPTU, on behalf of the Complainant, informing the Court that the Complainant was rejecting the settlement offer reached on 23^rdJanuary 2020 and now wished to proceed with her complaint under the Acts. A letter to that effect was received by the Court on 20^thFebruary 2020 from the Complainant.

In response to the correspondence from SIPTU and the Complainant, the Court received a letter on 13^thFebruary 2020 from Ms McDevitt, Ibec on behalf of the Respondent stating that the Complainant could not “reject” the agreement as it had been signed, it was binding and legally enforceable.

The Court informed both parties that it would hold a hearing for the purposes of making a decision on the status of the case, to consider whether or not the matter has been compromised by a settlement agreement between the parties and to determine whether or not the Court has jurisdiction to hear the case.

Preliminary Issue

The Court heard submissions from both parties on the preliminary issue of whether or not the Complainant is estopped from maintaining her claim under the Acts, which essentially goes to the jurisdiction of the Court to hear the complaint under the Acts.

Position of the Parties and Evidence Tendered

Ms McDevitt gave evidence on behalf of the Respondent. Ms McDevitt had represented the Respondent at the hearing on 23rd January 2020. She told the Court that under the terms of the settlement agreement agreed that day, the Complainant accepted payment of a monetary amount in full and final settlement of her claim under the Acts. She stated that the terms of the settlement were reduced to writing and signed by the parties and the Complainant was brought through the proposal document by her representative. The Complainant had the benefit of professional advice by two trade union officials, including a seasoned union official who had already represented the Complainant at the Adjudication Officer hearing. She stated that the monies agreed had been paid as a net sum to the Complainant and had not been returned.

Mr Paul Henry, SIPTU on behalf of the Complainant, stated that while a settlement agreement was reached on the day of the hearing of the appeals, the Complainant subsequently changed her mind and on 7^thFebruary 2020 she instructed SIPTU to withdraw from the agreement and seek a hearing of her claim under the Acts by the Court. He made the point that neither party had withdrawn their appeals under the Acts, he said the agreed monetary sum was paid as a net payment therefore tax and USC payments had been deducted, contrary to the understanding given in the agreement. Mr Henry said that the Complainant was in a poor state of mind to make the agreement on the day.

Evidence was given by Ms Bernadette Thornton, SIPTU on behalf of the Complainant. She said that she had sixteen years’ service as a trade union official. She told the Court that on the day of the hearing before the Court negotiations were entered into between the parties and a monetary sum was agreed in full and final settlement of the claim under the Acts. Ms Thornton told the Court that having gone through the proposal document, she had advised the Complainant on the implications and consequences of accepting the settlement, including that acceptance meant that her appeal would be withdrawn from the Court. She referred to the light-hearted comment made by the Complainant when going through each of the statutes listed in the document that she would not have need in any event to invoke the Maternity Act. She said that she advised the Complainant that the monetary amount would not be subject to statutory deductions as it was a compensation payment and was not for loss of earnings. She said that as a proposal document had to be brought from Ibec Headquarters in Baggot Street to Lansdowne House, it took between two and three hours to finalise the agreement and in the meantime the Complainant had contacted her family to seek advice on the settlement terms. Ms Thornton said that while the Complainant was naturally nervous of a Court hearing, she was not aware that she did not have the mental capacity to understand the implications of signing the agreement. Ms Thornton said that when the agreement was signed, both parties informed the Court that a settlement had been reached and sought 21 days for the payment to be made, when she would formally withdraw the case. Afterwards the Complainant sent her an email thanking her for her assistance with the matter, however, a number of days later she sought to withdraw from it.

The Complainant gave evidence to the Court. She said that she was not aware that by signing the agreement that her case would not be heard by the Court. She said that when she had signed the agreement, she was not in a mental state to do so. Afterwards she changed her mind and asked the trade union to withdraw from the agreement and seek a Court hearing of her case under the Acts. She said that by making deductions from the monetary amount, she had received less money that she expected and therefore alleged that the Respondent had breached the agreement. She said that the amount paid to her was not enough to compensate her for the loss of her earnings, she had not returned the money and said that she had spent some of it. During the negotiations between the parties on the day of the Court hearing, she telephoned her brother to ask his opinion on the proposed settlement, however, she said that he told her that it was up to her as he was not familiar with Irish employment law.

Conclusions of the Court

In reaching its conclusion on this case, the Court has carefully considered the respective submissions made by the parties’ representatives and the authorities opened to it.The Court notes that the settlement document executed by the parties contained a provision in the following terms: -

• “…..the sum of …… gross and net in full and final settlement of claims of every nature, type and kind whatsoever and howsoever arising from both my former employment and the termination thereof with [the Respondent], including claim UD/19/148 ……………….”

The Respondent contends that the Complainant is estopped from proceeding with the claim under the Acts by reason of the agreement into which she entered.

The Respondent relied upon the decision of Smyth J inSunday Newspapers v Kinsella and Bradley[2008] ELR 53 in holding that the Complainant was estopped from proceeding with the claim in circumstances where the settlement agreement was expressed to be in full and final settlement of all claims arising from,inter alia,the termination of her employment. Smyth J held that the employee should be:-

• “...advised of his entitlement under the Employment Protection legislation and any agreement or comprise should list the various applicable statutes or at least make it clear the same had been considered by the employee. In addition, the employee should have been advised in writing to seek appropriate advice of his rights”.

The Court is satisfied that in executing the agreement the Complainant herein undertook, for valuable consideration, not to pursue the claim under the Acts which was before the Court on 23^rdJanuary 2020, bearing reference number UD/19/148 or indeed any claims arising from her former employment and its termination. The Court is further satisfied that the Complainant executed the agreement based on informed consent.

Determination

For the reasons set out above, the Court finds that the Complainant’s claim under the Acts is precluded by the terms of the agreement concluded between the parties on 23^rdJanuary 2020. Consequently, the Court must decline jurisdiction in relation to the appeals which were before the Court bearing reference number UD/19/148.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
TH	______________________
31 August 2020	Deputy Chairman