Complainant

Respondent

Parties

Declan  Coleman

Drogheda Lodge Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00044912-001

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00044912-004

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00044912-005

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00044912-006

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00044912-007

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 4(1) of the European Communities (Occurrence Reporting in Civil Aviation) Regulations 2007

CA-00044912-008

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00044912-009

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00044912-010

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044912-011

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044912-012

02/07/2021

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

CA-00044912-013

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00044912-014

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00044912-015

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00044912-016

02/07/2021

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

CA-00044912-017

02/07/2021

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

CA-00044912-018

02/07/2021

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

CA-00044912-019

02/07/2021

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

CA-00044912-020

02/07/2021

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

CA-00044912-021

02/07/2021

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

CA-00044912-022

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00044912-023

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00044912-024

02/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046679-001

12/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046679-002

12/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046679-003

12/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 67(5) of the Property Services (Regulation)  Act 2011

CA-00046679-005

12/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00046679-006

12/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00046679-007

12/10/2021

The Respondent operates a pub where the Complainant was employed as a member of the security staff.  The Complainant contends that he was unfairly selected for redundancy when the Respondent's business reopened after Covid restrictions had been lifted.

The Respondent refutes the Complainant’s claim in its entirety and relies on a settlement agreement between the parties to support its contention that the WRC lacks jurisdiction to hear this case.

The Complainant attended the hearing on his own.  The Respondent was represented by the owner, Seán O’Riordan who was accompanied by a member of staff.

The Respondent submits that the Adjudication Officer lacks jurisdiction to hear this case because the Complainant executed a legally binding compromise agreement with the Respondent thereby waiving his right to refer any claims against the Respondent to the WRC.

The Respondent submits that the legally binding compromise agreement is clear and unequivocal and records that the Complainant was afforded the opportunity to avail of legal advice and was offered payment towards same before execution.  The Respondent further submits that the Complainant signed a letter confirming receipt of his settlement payment.

At the hearing, Mr O’Riordan showed the Adjudication Officer a copy of a text which he sent to the Complainant on 23 September 2021 which contained the following text:

“… Further to our conversation this morning, I’ve arranged a delivery of the proposed compromise agreement to your home address today.  Make sure to read it carefully.  The pub will pay €200 plus VAT for a legal representative of your choice to review this for you also …”

At the request of the Adjudication Officer, Mr O’Riordan submitted a print-out of the text to the WRC on the day following the hearing.  

Mr O’Riordan confirmed that while the Complainant was employed by the Respondent, his regular method of communication with him was via text.

The Complainant submitted that he did not read the compromise agreement and that he was never made aware that he could seek legal advice as he did not get the Respondent’s text.  The Complainant confirmed that his phone receives texts.

The Complainant submitted that he added the word DUD to his signature on the compromise agreement which, according to him, means that it was done under dispute. The Complainant confirmed that he did not make the Respondent aware that he was signing the agreement under dispute.

The issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether the Complainant has compromised his right to maintain these proceedings on the basis of the compromise agreement which he signed upon the termination of his employment.

The Respondent submits that the Complainant signed the compromise agreement in full and final settlement of all issues arising from his employment with the Respondent and that the agreement also included provisions whereby he agreed to waive his right to initiate any future claims against the Respondent.  In this regard, the Respondent referred to section 6.1 of the compromise agreement which provides that:

“The Employee agrees to accept the Termination Payment and the other arrangements referred to in this Agreement in full and final settlement, satisfaction, release, waiver and discharge of any and all rights, disputes or claims in all jurisdictions which the Employee has or may have at the date of this whether known or not against the Company, or against any of its or their respective former or existing directors, officers, employees or shareholders (whether in a corporate or personal capacity) arising directly or indirectly in connection with or as a consequence of the Employee's employment and/or its termination of directorship(s) or resignation(s) therefrom or the Employee's non-employment howsoever arising whether under contract (including any entitlement to bonus or expenses), common law, equity, tort (including any claim for personal injury and/or defamation), statute, statutory instrument or any treaty, regulation or directive of the European Union …”

The Complainant does not dispute that he signed the compromise agreement on the termination of his employment. However, the Complainant contends that he signed it under dispute and, therefore, that he is not precluded from referring a complaint to the WRC in relation to his employment with the Respondent.

Generally speaking, employees are free to enter into comprise agreements regarding their statutory rights except where legislation explicitly prohibits such agreements.  However, for compromise agreements to be valid, employees who enter into such agreements must do so with informed consent.

In Sunday Newspapers Ltd v Stephen Kinsella v and Luke Bradley [2008] 19 E.L.R. 53, Smith J cited from the judgment of Buckley J in Hurley v Royal Yacht Club, in the Circuit Court, in relation to section 13 of the Unfair Dismissals Act, 1997, where the latter Justice found:

“In several areas of the law the Supreme Court has held that any consent by a person to waive a legal right which that person has, must be an informed consent”.

At the hearing, Mr O’Riordan showed the Adjudication Officer a copy of a text which he had sent to the Complainant a week before the Complainant signed the compromise agreement.  In his text, Mr O’Riordan urged the Complainant make sure that he read the compromise agreement carefully.  In the same text, Mr O’Riordan indicated that the Respondent would pay €200 plus VAT to enable the Complainant to get legal advice in relation to the compromise agreement.

I note the Complainant’s contention that he never received this text. Given that texting was the preferred method of communication between the parties when they were in an employment relationship, and the Complainant’s acknowledgment that his phone received texts, I find it difficult to believe that he did not receive the Respondent’s text.

Even if he had not received the disputed text, I note that section 7 of the compromise agreement is headed ‘Expert Independent Advice’ and contains the following:

“The Employee further warrants that he has signed this Agreement having full knowledge of their rights and having taken expert independent advice from a legal Advisor (the Advisor), if they so wish, as funded by this agreement as to the terms and effect of this Agreement and, in particular, its effect on the Employee's ability to pursue their rights to bring a claim or claims before the District Court, Circuit Court, Labour Court, High Court, Supreme Court, the Workplace Relations Commissioner or any other court or tribunal against the Company and/or any of their shareholders, Directors or employees. “

I am of the view that by signing the compromise agreement, the Complainant was signalling his agreement to the above clause which refers to both his right to seek expert, independent legal advice funded by the Respondent and the impediment placed on this ability to pursue future claims against the Respondent in any forum including the WRC.

I note the Complainant’s contention that he signed the compromise agreement under dispute and felt, therefore, that this gave him the right to revisit the matters contained therein.

In the judgment referred to above, Smith J also found:

“If the claimants believed as determined by the Labour Court they could not credibly or at all sign “in full and final settlement”, if the claimants or either of them signed the severance agreement in the form in which they did with the intention of taking further action in the matter — they so deceived the company (appellant employer), that makes a sham and a mockery of seeking to conclusively resolve an employment dispute.”

As referenced above, section 6.1 of the compromise agreement includes the following statement:

“The Employee agrees to accept the Termination Payment and the other arrangements referred to in this Agreement in full and final settlement …"

Again following the reasoning of Smith J, I find that it is disingenuous in the extreme of the Complainant to suggest that the agreement he entered where he was offered the opportunity to avail of legal advice which would be funded by the Respondent, could somehow be construed as not representing a full and final settlement and could be cast aside.

The Respondent is of the view, correctly in my opinion, that the compromise was binding on both parties. 

Having regard to the foregoing, I find, therefore, that the compromise agreement as signed by the parties compromises any claims the Complainant has arising from his employment with the Respondent. Accordingly, I find that I do not have jurisdiction to inquire into the within complaints.

I find that I do not have jurisdiction to inquire into the within complaints.

Jurisdiction – compromise agreement