Complainant

Respondent

Parties

Boris  Figeczky

National Pen Promotional Products Limited

Representatives

  Self

Karen Killalea

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036183-001

15/05/2020

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

CA-00036183-002

15/05/2020

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

CA-00036184-001

15/05/2020

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

CA-00036184-002

15/05/2020

These complaints relate to the manner in which holiday pay was calculated in respect of the inclusion of commission pay and the impact of the recalculation in 2019. The number of CA numbers listed is due to the registration of duplicate complaint forms.

The complainant was made redundant with effect from June 2020. The complaints were submitted before that date. All aspects of the complaints were disputed by the Respondent. Evidence under affirmation was given by the Complainant and by Ms Nugent of HR on behalf of the Respondent. Her evidence related to the sequence of events concerning an offer and acceptance of redundancy terms including an ex-gratia payment.

Preliminary Issues were raised by the Respondent. The first was concerned with the terms on which a settlement was agreed with the Complainant in June 2020.A second preliminary issue was raised regarding the time limits of the complaint for any calculation of holiday pay prior to November 2019 under the Payment of Wages Act and the entitlement to pursue any complaint under the Organisation of Working Time Act prior to April 2019. An adjustment of holiday pay to take account of commission was made to the Complainant in respect of the holiday year 2019/2020 and advised to the Complainant in writing in March 2020.

Preliminary Issue-Waiver/Settlement Agreement

The Respondent provided evidence that the Complainant applied for voluntary redundancy. On June 11th, 2020 his application was accepted, and he was issued with draft settlement terms with a document containing FAQs and information as to what was meant by the settlement in accepting the ex-gratia payment. He was also notified that an arrangement at a discounted rate was made with a named solicitor from whom he could take advice before signing the settlement terms. A formal notice of termination issued to the Complainant on Monday 15th June with June 19th as the date for acceptance of the terms by signing the settlement and release terms. The Complainant signed the terms by way of a digital signature and returned the signed document on the same day-15 June 2020.

 Based on precedents decided by various authorities the Respondent contended that in signing the settlement/release document, the Complainant cannot pursue these claims.

Preliminary Issue Waiver/Settlement

In his evidence, the Complainant questioned whether he was told he could take legal advice before signing the settlement/release terms. When the relevant clause of the document issued on 11 June was brought to his attention he said he could not recall it but in any event his understanding was that he was signing the agreement in relation to any future claims and not the ones which he had submitted to the Workplace Relations Commission in May 2020 before the redundancy agreement.

Preliminary Issue-Waiver/Settlement

The following terms of 3.1 of the agreement could not be clearer:

‘The employee hereby accepts the ex gratia severance payment in full and final settlement of all claims arising from the Employees employment with the Employer howsoever arising, whether by statute, common law, contract, tort and equity, including but not limited to any claim or right of action under the…Payment of Wages Act 1991 and the Organisation of Working time Act 1997.

There is a further clause at 6.1 which refers to the Employee having taken independent legal advice. Clearly this does not apply in this case as the Complainant apparently does not say he took such advice. However, the Complainant was offered the opportunity to take that, or other, advice and had not one but two opportunities to do so-either between 11 and 15 June or between 15 and 19 June. He must take responsibility if he did not take advice regarding the meaning of the terms for his earlier claims or did not pay heed to the clear terms of the meaning of the settlement for is previous claims. What is pivotal however is that in this instance the employer not only advised that he do so but put in place a special arrangement for him to obtain the necessary advice and gave him a further opportunity to consider the implications of the agreement on 15 June.

The FAQ document clearly explained to the Complainant what was meant by this term (acceptance of which was required to obtain the ex-gratia payment). ‘A settlement agreement is a legally binding contract between an employer and employee which settles all claims that the employee has or may have in relation to the employee’s employment or its termination.’

This was a voluntary settlement, freely entered into by the Complainant; the meaning of the agreement in terms of claims was clearly explained by the Respondent; there was adequate opportunity to read and consider the terms; encouragement to take legal advice went further than a mere statement of the opportunity to take such advice-a supportive arrangement was put in place by the employer with adequate time given to the Complainant to take that or any other advice he could have sourced himself.

The terms signed by the Complainant have all the hallmarks of a fair and clear agreement freely entered into by the Complainant. On the basis of this finding-the WRC has no jurisdiction to consider further claims(complaints) which seek to interfere with or overturn that agreement.

On the basis of this finding neither the complaint or the second preliminary issue merit further consideration.

CA-00036183-002 and CA-00036184-002-Organisation of Working Time Act 1997

The Complaint brought by Boris Figeczky against National Pen Promotional Products Limited under the Organisation of Working Time Act 1997 is not well founded.

CA-00036183-001 and CA-00036184-001-Payment of Wages Act 1991

The Complaint brought by Boris Figeczky against the National Pen Promotional Products Limited under the Payment of Wages Act 1991 is not well founded.

Calculation of Holiday Pay/Waiver/Time Limits