ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047334
Parties:
| Complainant | Respondent |
Parties | Robert Talbot | Twitter International Unlimited Company |
Representatives | N/A | Ms. Karen Hennessy, Mason Hayes & Curran, instructing Mark Curran B.L.. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058394-001 | 21/08/2023 |
Date of Adjudication Hearing: 01/11/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The matter was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (the “WRC”) as a body empowered to hold remote hearings.
Mr. Robert Talbot (the “Complainant”) attended the Hearing. Ms. Karen Hennessy of Mason Hayes & Curran and Mr. Mark Curran B.L., represented and attended on behalf of Twitter International Unlimited Company (the “Respondent”).
The Complainant provided evidence on affirmation. The legal perils of committing perjury were explained.
At the outset of the Hearing, I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all WRC hearings are held in public. I explained that where “special circumstances” apply, a matter could be heard in private and decisions could be anonymised. The Complainant requested that the decision be anonymised so as to protect his privacy. However, I ruled that this was not a “special circumstance” and so the matter would be in heard in public and the decision would be published in full.
The Hearing:
At the outset of the Hearing, the Complainant confirmed that he had sight of the Respondent’s submissions and that he did not require further time to consider them. As the Respondent’s submissions were first provided to me at the Hearing, I adjourned the matter for twenty minutes to consider them.
After the Respondent made its two preliminary arguments (outlined below), the Complainant stated that he had just received the Respondent’s Booklet of Authorities that morning. I offered to adjourn the Hearing and reschedule the Hearing for another day, so that the Complainant could consider the Respondent’s Booklet of Authorities. However, the Complainant declined an adjournment and confirmed that he wanted to proceed with the Hearing.
At the conclusion of the Hearing, I adjourned the matter to consider the preliminary arguments presented. I reserved my position on: (i.) whether to decide this matter on the basis of the preliminary arguments presented; and (ii.) whether to hold a further hearing day. As set out below, I have decided this matter on the basis of the preliminary arguments presented and so, in the circumstances, there will not be another hearing day.
Background:
In his Complaint Form submitted on 21 August 2023, the Complainant outlined that he was employed by the Respondent from 13 October 2015 to 24 May 2023 as a Director of Business Development. He outlined that he earned €13,956.67 gross per month, working 65 hours per week. In May 2023, the Complainant’s employment was terminated by reason of redundancy. As part of the redundancy process, the Complainant signed a severance agreement on 4 May 2023 (the “Severance Agreement”). The Complainant submits that the Respondent acted in breach of the Severance Agreement and did not pay his outstanding statutory annual leave for 2022, amounting to €12,883 gross.
The Respondent denies the Complainant’s complaint in its entirety. The Respondent also raises two preliminary issues which it alleges go to the WRC’s jurisdiction to hear this matter insofar as: (i.) the Complainant signed the Severance Agreement which precludes him from bringing this complaint; and (ii.) the Complainant’s complaint is time-barred. |
Summary of Complainant’s Case:
The Complainant provided written and oral submissions. The Complainant addressed the following preliminary issues raised by the Respondent, which the Respondent alleged went to the WRC’s jurisdiction to hear this matter: (i.) The Complainant signed the Severance Agreement in full and final settlement of all claims arising out of his employment, which included a complaint under the Organisation of Working Time Act 1997 (the “OWTA”); and (ii.) The Complainant’s complaint under the OWTA is time-barred.
(i.) Severance Agreement: In his written submissions, the Complainant stated that he had the opportunity to enter into the Severance Agreement with the Respondent “in which [he] agreed to waive [his] legal right to instigate legal proceedings against [the Respondent] in return for a severance payment”. The Complainant submitted that under the terms of the Severance Agreement, the Respondent had agreed to pay for accrued but unused annual leave. The Complainant submitted that the Respondent had not done so. The Complainant outlined that he was confused as to why the Respondent had raised the preliminary issue concerning the Severance Agreement. The Complaint submitted that the Respondent had ignored the “key” point of his submission, which was that he had made the decision to enter into the Severance Agreement on the presumption that the Respondent would comply with its terms. The Complainant submitted that the Respondent had breached the Severance Agreement. The Complainant confirmed that he had signed the Severance Agreement with “full knowledge of the impact of the agreement on [his] legal rights”. The Complainant stated that he understood the Severance Agreement. He confirmed that he had the opportunity to take legal advice. He outlined that he did not avail of the independent legal advice which had been arranged and (partially) paid for by the Respondent. However, he outlined that he had spoken to “family and friends in the legal industry” and that he was “comfortable” with the advice that he had received. The Complainant further outlined that he had sufficient time to consider the Severance Agreement – he received it on 24 April 2023 and signed it on 4 May 2023. (ii.) Whether the Complaint is Time-Barred: The Complainant submitted that the Respondent confirmed during the redundancy consultation process that he would be paid for his statutory leave. The Complainant outlined his belief that the complaint is not time-barred as he believed that he could not bring a complaint while he was still employed by the Respondent. The Complainant further outlined that he had sought to resolve this matter with the Respondent since April 2023. The Complainant submitted that he had hoped that this matter would be resolved without recourse to the WRC. He further submitted that he had received payments in a number of instalments from the Respondent and thought that this matter would be resolved. He submitted that it would be unfair if the substance of his complaint is not addressed. |
Summary of Respondent’s Case:
The Respondent provided written and oral submissions in which it raised two preliminary issues. The Respondent submitted that these issues went to the WRC’s jurisdiction to hear this matter: (i.) The Complainant signed a Severance Agreement in full and final settlement of all claims arising out of his employment which included a complaint under the Organisation of Working Time Act 1997 (the “OWTA”); and (ii.) The Complainant’s complaint under the OWTA is time-barred.
(i.) Severance Agreement: The Respondent submitted that it is well established that statutory rights may be waived provided there is informed consent on the part of the employee. The Respondent submitted that, in return for the employer paying an ex-gratia payment over and above the employee’s statutory and contractual rights, the employee agrees to waive their right to bring such claims. The Respondent submitted that in this case, the Complainant received an ex-gratia payment of €73,005.85 gross and waived his right to bring a complaint under inter alia the OWTA. To this end, the Respondent referred to various key clauses of the Severance Agreement. These clauses included: “4. Waiver and Release”; “13. Entire Understanding”; “14. Independent Legal Advice and Legal Costs”; and “16. Governing Law”. The Respondent submitted that insofar as the Complainant is challenging the Severance Agreement and alleging that the Respondent acted in breach of it, this is a private contractual law matter and outside of the WRC’s jurisdiction. The Respondent relied on the case of Sunday World Newspapers Limited v. Kinsella and Another [2007] IEHC 324, in which Smyth J. stated “the Agreement is expressly stated to be in full and final settlement and that means what it says. It says so in express terms and referable to enumerated acts and all or any employment legislation in respect of any and all outstanding entitlements whether statutory or otherwise stated or as yet unstated”. The Respondent also relied on Hurley v. Royal Yacht Club [1997] ELR 225, where the Circuit Court applied a two-factor test in their assessment of whether it was reasonable for a severance agreement to be upheld: a.) that the claimant be advised of their legal entitlements and that any compromise agreement list the enactments applicable thereto; and b.) that the employee be advised in writing that he/she should take appropriate (legal) advice. The Respondent submitted that both tests are made out in this case. Consequently, the WRC has no jurisdiction to hear the Complainant’s complaint, as he legally waived his right to bring such a complaint in signing the Severance Agreement and accepting the ex-gratia payment offered. The Respondent cited and relied on a number of Labour Court and WRC decisions, which found that there was no jurisdiction to go behind a waiver agreement, entered into by parties, where the complainant had benefited from informed consent. (ii.) Whether the Complaint is Time-Barred: The Respondent submitted that even in the absence of the Severance Agreement, the Complainant is out of time to bring a claim under the OWTA, in respect of unpaid leave from 2022. The Respondent noted that the Complainant’s complaint is dated 21 August 2023. The Respondent, relying on section 41(6) of the Workplace Relations Act 2015, submitted that the Complainant had 6 months from the date of contravention in which to bring a complaint. The Respondent further submitted that the statutory year, defined under section 2 of the OWTA, declares that the leave year begins on 1 April. The Respondent referred to Tapastreet Ltd v. Joseph Mitchell, DWT176, where the Labour Court found that the entitlement of an employee to annual leave was statutorily limited to that arising from April 1st in the year in which any WRC claim was submitted. The Respondent submitted that any complaint in respect of unpaid leave accruing in 2022 is time-barred. The Respondent submitted that the Complainant has failed to show any “reasonable cause” as to why this complaint was not brought sooner. |
Findings and Conclusions:
The Law: Preliminary Decisions: In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F. Case”). In the latter case Hardiman J, found: "It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear". In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114 (the “Donegal Meat Processors Case”), the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was: “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”. Severance Agreements: The leading authority in relation to agreements which compromise employment statutory rights is Sunday World Newspapers Limited v. Kinsella and Another [2007] IEHC 324. In that case, former employees who had entered into severance agreements sought to pursue complaints under the Protection of Employees (Fixed-Term Work) Act 2003, arguing that a waiver of their rights under the Act was void. In the High Court, Smyth J. confirmed that an employee could enter into an agreement in relation to his or her statutory rights. He held that the question of whether or not such rights had been compromised was a matter for the proper construction of the agreement itself. He also adopted Hurley v. Royal Yacht Club [1997] ELR 225 which considered the circumstances where claims can be legitimately compromised and applied a two-factor test: a) that the claimant be advised of their legal entitlements and that any compromise agreement list the enactments applicable thereto; and b) that the employee be advised in writing that he/she should take appropriate (legal) advice. Further, in Starrus Eco Holdings Limited t/a Greenstar v. Gerald O’Reilly, UDD1868, the Labour Court concluded that it did “not have jurisdiction to go behind the waiver agreement entered into by the Parties.” Findings and Conclusion: Preliminary Decision: It is accepted that statutory rights may be waived provided there is informed consent on the part of the employee. This requires an examination of the facts of the case and the application of the relevant tests, established in the caselaw. If the Complainant has waived his statutory rights in signing the Severance Agreement, then I have no jurisdiction to hear this complaint. Following the caselaw outlined above regarding preliminary decisions, and particularly the B.T.F. Case, this is an issue which “in and of itself and without regard to anything else may terminate the whole proceedings” and so there is a “strong case” for its determination by way of preliminary decision. Severance Agreement: I am satisfied that as a matter of construction, the Severance Agreement was intended as full and final settlement of any claim arising from the Parties’ employment relationship, including complaints under the Organisation of Working Time Act 1997 (the “OWTA”). To this end, I note the following: · Under clause 4.1 of the Severance Agreement, the Complainant “accepts the Severance Paymentin full and final settlement satisfaction, release and discharge of any and all claims, actions or causes of action, suits, complaints, contracts, liabilities, agreements, promises, debts or damages, whether existing or contingent, known or unknown, and whether arising under statute, common law (including personal injury), equity or otherwise”.
· Under clause 4.2 of the Severance Agreement, the OWTA is specifically listed. This is the legislation which the Complainant has invoked here. I must also be satisfied that the Complainant gave his informed consent. Under clause 14 of the Severance Agreement the Complainant confirms that he has taken legal advice and understands and accepts the terms of the Severance Agreement. In his oral submissions, the Complainant confirmed that he signed the Severance Agreement with “full knowledge of the impact of the agreement on [his] legal rights”. The Complainant stated that he understood the Severance Agreement. He confirmed that he had the opportunity to take legal advice. He outlined that he did not avail of the independent legal advice which had been arranged and (partially) paid for by the Respondent. However, he outlined that he had spoken to “family and friends in the legal industry” and that he was “comfortable” with the advice that he had received. The Complainant further outlined that he had sufficient time to consider the Severance Agreement – he received it on 24 April 2023 and signed it on 4 May 2023. Having considered the totality of the evidence adduced in relation to this first preliminary matter, I am satisfied that the Complainant signed the Severance Agreement with the benefit of informed consent. Therefore, I do not have jurisdiction to hear this complaint. For completeness, I find that in the circumstances there is no need for me to consider the second preliminary matter regarding whether this complaint is time-barred. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I am satisfied that the Complainant signed the Severance Agreement with the benefit of informed consent. Therefore, I do not have jurisdiction to hear this complaint. |
Dated: 16th November 2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Organisation of Working Time Act 1997, Severance Agreement, No Jurisdiction. |