ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00034354

Parties:

Complaint(s):

Date of Adjudication Hearing:  04/08/2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s) to me by the Director General, and the fact that the contravention relates to an Unfair Dismissal in 2015 and having regard  to the preliminary submissions made concerning my jurisdiction to hear the complaints, in the first instance the parties  were requested to present any preliminary matters for hearing prior to hearing the substantive complaints.

Background:

Preliminary Matter:

The manual complaint form was lodged with the WRC on the 11th of May 2021.  The Complainant’s employment ended on or about the end of August 2015.

The Complainant details two complaints:

1. “I was unfairly dismissed and have at least 12 months service (Unfair Dismissals Act)
2. I was penalised or threatened with penalisation by my employer for having made a protected disclosure under the Protected Disclosures Act, 2014

The Complainant states in her complaint form that the reason for her delay in bringing this complaint arose for the following reason:

“In 2017, I commenced a Subject Access Request but did not receive all the documents and reported TEAM to the Data Commissioner and I am currently awaiting an Appeal hearing in the Circuit Court to gain access to more documents from TEAM.”

The Complainant requested that she present her preliminary matters first and stated that the delay in presenting her complaint arose due to a deliberate withholding of information from her by the Respondent. This was the cause of her delay. The Complainant had first sought information through the offices of the Data Commissioner and on appeal to the Circuit Court received that information relevant to her complaint.

There are two matters before the Adjudicator; however, the primary matter is the Protective Disclosure.

The Complainant did accept that she has entered into a settlement agreement arising from bringing a complaint to the WRC reference Adj-0001948. Arising out of that action a compromise agreement was entered into on or about the 15th of November 2016. The Complainant maintains that certain details agreed and now relied upon by the Respondent were not provided to her.

The Respondent employer stated that there was one preliminary matter that required a decision and that related to the jurisdiction of the Adjudicator to hear the matter based on time.

The Adjudicator stated that it would appear to him that there were merits in first making a preliminary decision concerning time and jurisdiction.

Both parties were asked on several occasions by the Adjudicator if they required clarification on what the Adjudicator was proposing, which was to make a preliminary decision on jurisdiction in the first instance.

The Complainant asked if the Adjudicator would be hearing the substantive matter today. The Adjudicator explained that in the interest of Fairness and Efficiency allowing for the preliminary matters raised he would first make a preliminary decision about Jurisdiction to hear the complaints.

The Complainant asked was she being denied the right to present her case.

The Adjudicator explained that he was adjourning so that he could decide about jurisdiction. However, depending on whether he had jurisdiction would determine if the substantive matters could be heard.

The Complainant stated that if a negative decision was made, she would appeal to the Labour Court.

It was explained to the Complainant that the right to appeal exists for any decision made by the Adjudicator.

It was explained to the Complainant that section 41 of the Workplace Relations Act 2015 as amended (Act) provides for a referral to the Workplace Relations Commission within 6 months of the breach complained of or with reasonable cause within 12 months:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

And section 42 of the Act provides that a complaint can be dismissed at anytime if it is deemed to be frivolous and or vexatious. These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

The Act states at section 41 that an adjudicator shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The date of contravention occurred on or about August 2015 and as this complaint was lodged in May 2021 it is significantly out of time.

The parties reached a settlement agreement on or about 15th of November 2016 relating to an Unfair Dismissal Claim. That agreement was reached with the assistance of legal representation.

Section 12 of the Protected Disclosures Act 2014 provides for the following:

2. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2) (ba) of the Unfair Dismissals Act 1977 applies.

(3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1)

The Complainant has reached a settlement agreement concerning her Unfair Dismissals complaint and therefore Section 12 (1) cannot apply. That agreement stated that the Claimant agrees to withdraw her claim under the Unfair Dismissals legislation ref CA0002638-001. The agreement agreed was in full and final settlement of all claims arising out of the claimant’s employment. That agreement was signed by the Complainant, and it states that the claimant acknowledged that she had received independent legal advice from her Solicitor as to the effect of that agreement.

I note that the data request relied upon by the Complainant to explain why her Protected Disclosure Complaint was delayed was made in 2017; although, her employment ended in August 2015. The delay in commencing the data request to 2017 cannot provide a reasonable cause to explain the delay which can extend time up to 12 months. However, the biggest hurdle relates to the fact that the complaint under the Protected Disclosures Act was only lodged in 2021 for a contravention that occurred in 2015.

As set out in Nowak v Data Protection Commissioner, I determine that CA-00044040-002 relating to a complaint made under Schedule 2 of the Protected Disclosures Act, 2014 is futile and misconceived as the statute states that I shall not entertain a complaint  if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In this case that is several years after the contravention is alleged to have occurred. While section 8 does provide for an extension of time based on a reasonable cause that is limited to but not later than 6 months after such expiration.

The other complaint CA-00044040-001  a complaint made under the Unfair Dismissals Act was settled in 2016. While the Complainant did state at the hearing that the case was mainly about the Protected Disclosure complaint, she did not withdraw the Unfair Dismissal Complaint.

The intention of the parties as set out in the settlement agreement is central to deciding on whether the Adjudicator has jurisdiction to hear this complaint. I note the case law regarding this matter is comprehensively dealt with in the Arthur Cox Yearbook 2016:

[5.36]

Coman v Waterford, Wexford, Education and Training Board Formerly County Wexford Vocational Education Committee 94—EAT—Unfair Dismissals Acts 1977 to 2015—Redundancy (Redundancy Appeals Tribunal) Regulations, 1968 95—alleged constructive dismissal—effect of severance agreement/waiver—settlement of separate High Court proceedings—no jurisdiction to hear claim—payment of witnesses expenses

The claimant claimed that she had been constructively dismissed by the respondent in breach of the Unfair Dismissals Acts 1977 to 2015. However, the respondent made a preliminary application to the EAT claiming that it had no jurisdiction to hear the claimant’s claim as a result of an injunction granted by the High Court on 11 November 2014 arising out of a settlement reached between the parties dated 16 September 2014, reinforced by a further agreement of 16 February 2015.

The claimant had instituted proceedings for personal injury in the High Court against the respondent. As noted above, the parties settled these proceedings. One of the terms of the agreement of 16 September 2014 was that the claimant’s employment would end on 31 October 2014 by reason of voluntary redundancy.

As noted by the EAT, when the termination date arrived, it appeared that the claimant wished to remain in her employment ‘and was willing to forego the lucrative settlement agreement towards this end’. However, the respondent sought and obtained the above-mentioned interlocutory injunction restraining the claimant from breaching the agreement dated 16 September 2014. The agreement of 16 February 2015 was then entered into by the parties ‘wherein the claimant agreed that the agreement dated 16th September 2014 was binding upon her, that she would take no further action that might reasonably be regarded as being in breach of that agreement and that the interlocutory injunction would remain in force ad infinitum’. The claimant had not attended before the High Court at the injunction hearing as she was in hospital at the time.

The EAT considered the applicable clauses of both agreements:

Clause 6(d) of the agreement dated 16th September 2014 provides as follows: -

This agreement is full and final settlement of all claims howsoever arising as between the [claimant] and the [respondent]. The [claimant] further agrees that this agreement governs the termination of the [claimant’s] employment and relationship with the [employer] and undertakes not to institute any further proceedings.

The agreement of 16th February 2015 provided, inter alia, as follows: -

For the avoidance of doubt, the [claimant] confirms that she acknowledges that the said agreement is binding upon her and that she shall take no further action or make any further statements that might reasonably be regarded as being in breach of the said agreement.

And that

The interlocutory Injunction of the High Court [dated 11th November 2014] shall remain in force ad infinitum …

The respondent’s case was that the claimant was estopped from bringing the instant claim for constructive dismissal based on, inter alia, the decisions of the High Court in Sunday Newspapers Ltd v Kinsella and Brady 96 and Minister for Labour v O’Connor, 97 as well as the decision of the Supreme Court in Doran v Thompson. 98 In support of its argument that the claimant was engaging in an abuse of process in that ‘her claim relates entirely to matters connected with her employment and the termination of same; all of which have already been the subject of proceedings before both the High Court and the Court of Appeal’, the respondent cited the decisions in Henderson v Henderson, 99 Johnson v Gore Wood & Co 100 and Cunningham v Intel Ireland Ltd. 101

The claimant, on the other hand, submitted that the fact she had instituted proceedings for personal injury to the High Court did not preclude her taking an action for unfair dismissal to the EAT, relying in this regard on the decision of the High Court in Stephens v Archaeological Development Services Ltd. 102 The respondent denied that Stephens was of any relevance to the case. The claimant further contended that she lacked capacity to consent to the agreements at the time due to her mental state.

A majority of the EAT found in favour of the respondent. It was satisfied that the agreement entered into between the parties of 16 September 2014:

… is in the nature of a severance agreement and that the conditions for enforceability of the agreement such as consent and legal advice have been satisfied. If the claimant wished to contest this agreement on the basis that she lacked capacity to consent that was a matter for the High Court. Accordingly, the Tribunal must accede to the respondent’s application that the Tribunal lacks jurisdiction.

Although the EAT unanimously found that the claimant wished to retain her position and was willing to forego the benefits set out in the settlement agreement, the majority did not find that this was a matter to be taken into consideration in determining the preliminary application. It rejected the claimant’s contention that the Stephens decision was of assistance, holding that it ‘may have been relevant but for the fact that the agreement entered into between the parties in the claimant’s High Court action dealt with the termination of the claimant’s employment albeit no dismissal claim appears to have been pleaded’.

Accordingly, the majority of the EAT held that it did not have jurisdiction to hear the claimant’s claim and dismissed it.

A minority of the EAT found that the agreement dated 16 September 2014 ‘failed to list the legislation that is to be excluded such as the Unfair Dismissals Acts 1977–2007’. It highlighted that the action instituted initially by the claimant was a personal injuries one, and the issue of the termination of her employment ‘was not ventilated in the High Court but rather was made a term of the settlement agreement of her High Court action’. Therefore, the minority view was that:

… it was the respondent’s High Court action on 6 November 2014 and on 11 November 2014 which ventilated not so much the termination of the claimant’s employment in the courts but rather the enforceability of the agreement.

 On the facts the parties entered into a settlement agreement which stated that the Claimant agrees to withdraw her claim under the Unfair Dismissals Legislation.  It is also clear that the agreement was in full and final settlement of all claims arising out of the claimant’s employment. The conditions of enforceability regarding consent and legal advice appear to have been satisfied. That agreement was signed by the Complainant and witnessed by her solicitor and agreed on the 15th of November 2016. This complaint is now brought several years after that agreement was signed.

 Based on the legal enforceability of that settlement agreement I find that I do not have jurisdiction to hear the claimant’s Unfair Dismissal claim and must dismiss it for want of jurisdiction.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 42 of the Workplace Relations Act 2015 states that an adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. However, in this case a settlement agreement was reached between the parties in November 2016 which specifically referenced that the claim made under the Unfair Dismissal Act was withdrawn.

Dated:   5th August 2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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