Complainant

Respondent

Parties

Brian  O'Goilin

Macra Na Feirme Clg Macra Na Feirme

Representatives

Johanne Duigan Ledwith Solicitors LLP

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-00049823-001

24/04/2022

The Complainant was employed by the Respondent as an Accountant from 30 September 2019 until 31 October 2021.

The Complainant claims that he has an outstanding entitlement to payments from the Respondent which constitute unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act, 1991.

The Complainant stated in the first instance that he was underpaid in the amount of €3,070.53 in respect of payments that should have been made by the Respondent on his behalf to the Aviva pension company. Specifically, this is comprised of an underpayment of an employee contribution amount of €2,700 in addition to an underpayment of an Employer contribution in the amount of €370.53. He also asserted that he was underpaid in the amount of €1,320.66 gross in respect of 2020.

The Respondent stated that the WRC has no jurisdiction to hear the complaint given that the Complainant entered into a full and final settlement of any and all claims that he may have had against the Respondent in connection with or arising out of his employment with the Respondent or the termination of such employment on 10 November 2021. It was further asserted that the Complainant had the benefit of receiving independent legal advice prior to executing the Form of Acceptance (containing the waiver to claims) to the Compromise Agreement on 10 November 2021.

The first issue that I must decide upon relates to the jurisdictional issue raised by the Respondent as to whether the Complainant has compromised his right to pursue his complaint under the Payment of Wages Act 1991 because of the Severance Agreement which he signed on the termination of his employment.

In considering this matter, I note that the severance agreement includes provisions within which he agreed to waive his right to initiate any future claims against the Respondent, including any claims under the Payment of Wages Act, 1991. The Complainant does not dispute that he signed the Severance Agreement on the termination of his employment and that he availed of legal advice in so doing.

In considering this matter, I have considered the High Court judgment of Smyth J. in the case of Sunday Newspapers -v- Kinsella & Anor (2008) 19 E.L.R. 53. This case concerned a severance agreement purporting to compromise entitlements under the Protection of Employees (Fixed Term Workers) Act 2003. Smyth J. held that the question of whether statutory rights have been compromised is a matter for the proper construction of the agreement itself and that informed consent and appropriate advice is crucial if the compromise is to be upheld. Smith J. also went on to state that where an employee is being offered a severance package he or she is entitled to be advised of his or her entitlements under the employment protection legislation and any agreement should list the various applicable statutes or at least make it clear that the same has been considered by the employee.

Smith J. also endorsed the dicta of the Circuit Court in Hurley v the Royal Yacht Club [1997] ELR 225 where Buckley J. set out the principles of a settlement agreement have been set out in the Circuit Court stated:  “I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in this case, would have been legal advice. In the absence of such advice I find the agreement to be void.”

In applying these principles to the instant case, I am satisfied firstly as a matter of construction, that the severance agreement concluded between the parties was intended as full and final settlement of any existing and potential claims arising from the employment relationship between the parties including a complaint under the Payment of Wages Act, 1991. In this regard, I have carefully examined the content of the Agreement and I am satisfied that the provisions of same specifically preclude the Complainant from initiating any complaint against the Respondent under a wide ambit of stated employment enactments including the Payment of Wages Act, 1991.

Secondly, I am satisfied that the Complainant obtained legal advice from a solicitor in relation to the implications and effect of the agreement and was financially facilitated in doing so by the Respondent, as part of the terms of the agreement. In the circumstances, I find that there was fully informed consent on the part of the Complainant and that there was not any undue influence or coercion applied on him by the Respondent to sign the Agreement.

Having regard to the foregoing, I find therefore that the Severance Agreement as signed by the parties compromises any claims the Complainant has arising from his employment with the Respondent under the Payment of Wages Act, 1991 and do not accept the assertions made by the Complainant in his correspondence of 1 February 2023 that the Respondent has in any way breached the aforementioned agreement. Accordingly, I find that I do not have jurisdiction to investigate the complaint.

I find that the severance agreement as signed by the parties compromises any claims the Complainant has under the Payment of Wages Act 1991. Accordingly, I do not have any jurisdiction to inquire into any complaint made by the Complainant under this enactment.