ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036755
Parties:
| Complainant | Respondent |
Parties | Peter Nemeth | R3 Corda Ireland Limited |
Representatives |
| Karen Hennessy Mason Hayes & Curran |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00047976-001 | 04/01/2022 |
Date of Adjudication Hearing: 18/10/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
In the case before me the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967, the Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade, or proposes trading with fewer employees or that the work is to be done differently and the Employee has not the requisite training or qualification to continue.
Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the said dismissal (per Section 7).
In the case before me the Complainant herein has referred a complaint of having been unfairly dismissed by reason of his Unfair selection for Redundancy from his employment in which he had worked for in excess of one year. Because the Workplace Relations Complaint Form (dated the 4th of January 2022) issued within six months of his dismissal/redundancy, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
This complaint of an unfair selection for Redundancy was brought before me on foot of a Workplace Relations Complaint Form dated the 4th of January 2022. The Complainant had been working with the Respondent company for about 21 months when he was unexpectedly made Redundant. His Employer said it was restructuring and that up to 30 members of staff were being let go across its worldwide workforce. Before dealing with the substantive issue of whether or not the termination of this employment was Unfair or not, the Respondent has challenged my entitlement to hear this matter in circumstances where the Complainant signed a severance agreement. I have agreed to deal with this point as a preliminary issue. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on his submission as outlined in the Workplace Relations Complaint Form and also gave an oral account of the circumstances surrounding his decision to sign up to the severance agreement prepared by his Employer. The Complainant alleges that he was Unfairly dismissed and that he felt unduly pressurised when entering into the severance agreement. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. It is noted that the Complainant submitted a further written observation after the hearing of this matter. The content of that communication had no bearing on the outcome of the decision. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent entity was also represented by the HR Manager. The Respondent provided me with a comprehensive written submissions dated the 13th of October 2022. All evidence was heard following an Affirmation. The Respondent rejects that there has been an Unfair Dismissal and maintains that the Complainant only entered into the Severance agreement after having taken independent legal advice. The Respondent asserts that the Complainant cannot eschew the legality and effectiveness of that agreement. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced herein. The Complainant was made Redundant after twenty-one months of employment as a software engineer with the Respondent company. I agree with the Complainant that it was very unsatisfactory that he should be notified (for the first time) of his impending redundancy on a Bank Holiday Monday. The Complainant did know that there was restructuring being discussed but seems to have been unaware that his own position was at risk. I accept that the Respondent was making somewhere between 30 and 40 people redundant across their worldwide offices. I note that the international aspect of the enterprise was put forward as providing an excuse for the notification on a Bank Holiday. The company wanted to notify everyone on the same day. Monday 25th of October was the day chosen. I accept the Complainant was shocked and upset. Along with being notified of the fact that he had been selected for Redundancy, the Complainant was also provided with a severance agreement. This agreement purports to set out all matters incidental to the termination of the employment relationship. The agreement provided for the payment of a settlement lump sum of circa €17,000.00 which included a notice payment (four weeks per the Contract of Employment), annual leave entitlements and an ex-gratia element. There can be no doubt that the Complainant was advised that he seek legal advice on the documents provided and in particular that he be appraised of his Statutory rights. The Severance Agreement includes a waiver of all rights and entitlements protected by Statute and in particular included the Unfair Dismissals Acts 1977 to 2015. A financial contribution is made by the Respondent to ensure that the Complainant seek and pay for the said legal advice. I am satisfied that the Complainant did engage a reputable firm of Solicitors to review the agreement. I understand a number of typos were corrected and that the Complainant was satisfied to sign the Contract in the time provided by the Respondent – which was one week. The Respondent pointed out that it was not a party to the discussions and conversations had between the Complainant and his elected Solicitor. It is also true to say that neither the Complainant nor his Solicitor looked for further clarification or an extension of time to consider any aspect of the agreement that had been put in front of the Complainant. The Complainant disclosed the name of the Solicitor practise he had attended and signed the agreement on November 1st. The Respondent has urged me to accept that it has at all times acted in good faith in presenting the Complainant with a severance agreement/package which it says is a fair and reasonable one. The Respondent says that it would be wholly unreasonable and unfair to set the agreement aside or declare it unreasonable in circumstances where the Complainant had clearly had the benefit of independent legal advice (sponsored by the Respondent). I find I am inclined to agree with the Respondent in this regard. Whilst the timeline for engaging a Solicitor and making a final decision was short (seven days) it was not unreasonable and as the Complainant never looked for an extension of the time given to him, it is not now reasonable to say he never got one and did not think he could have got one. The Complainant appears to have regretted his decision after he had already signed the agreement. In his complaint form he has suggested pressures of time, the agreement being complicated and a fear that he would lose everything if he didn’t sign up - all contributed to his regret. I have sympathy for the Complainant but none of this was raised with the Respondent while there was an opportunity. Unless otherwise disclosed I am assuming the Complainant got legal advice on all issues which were relevant to him at the time. In finding I have no jurisdiction to proceed to hear the substantive case herein, I am persuaded by the authorities provided by the Complainant. In Hurley -v- Royal Yaucht Club [1997] ELR 225 the Circuit Court applied a two factor test in their assessment of whether it was reasonable for a severance agreement to be upheld- - That the claimant be advised of their legal entitlements and that any compromise agreement list the enactments applicable thereto - That eh employee be advised in writing that he/she should take appropriate legal advice There is no doubt that both these tests are satisfied. The same is also true of Sunday Newspapers Limited -v- Stephen Kinsella and Luke Bradley 92008) 19ELR 53 |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00047976-001 – The Complaint herein fails in circumstances where the Complainant has lawfully agreed to waive his entitlement to bring a claim under the Unfair Dismissals Acts.
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Dated: 27/10/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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