Complainant

Respondent

Parties

Donal O'Donovan

Xerox IBS Limited

Representatives

Fionnán Long, BL

Ger Connolly,  Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055056-001

13/02/2023

Chronology Leading to this Complaint

The complainant commenced his employment as a client manager with the respondent on March 3rd 2020.  Two and a half years later, on August 5th 2022, he was informed that his job was being made redundant.  This was confirmed in a letter from the HR manager the same day.  The complainant was advised in the letter that a redundancy package would be discussed with him and that he had a right to seek legal advice.

On August 17th, the complainant received an email with two documents attached.  The first contained the details of a gross payment of €21,145, comprising a statutory redundancy lump sum of €3,696 and an “ex gratia” payment of €17,449.  The second document was what is generally referred to as a “waiver agreement,” for the complainant to confirm his acceptance of the payment of €21,145 in full and final settlement of all claims arising from the termination of his employment.   The letter included a statement that,

“These sums are in full and final settlement of all claims arising whatsoever and howsoever from my employment and its termination with the Company both under statute and common law.”

The final line of the letter refers to the complainant’s right to seek legal advice on the settlement terms:

“I confirm that I have been advised of my right to obtain legal advice and have been provided with sufficient time in which to do so.”

The complainant had an initial query about redundancy pay, wages and the fact that his contractual notice brought his end date to September 30th.

On August 26th, the ex-gratia sum was paid to the complainant through payroll.   He signed the August 17th severance letter on August 31st. 

Five months after the termination of his employment, on February 13th 2023, the complainant submitted this complaint of unfair dismissal to the WRC.  He claims that he signed the severance letter on August 31st when he was distressed and in survival mode and he was concerned that he would not receive the severance payment.  He did not take legal advice on the terms of the settlement, although he was notified in writing of his right to do so.  He said that the respondent advertised a vacancy for a client manager in November 2022 and he argues his dismissal was a sham redundancy.

It is the respondent’s case that I have no jurisdiction to hear this complaint, because the complainant accepted a redundancy payment and signed a severance letter in full and final settlement of all claims against the respondent, including under the Unfair Dismissals Act.  In the first instance therefore, I will consider the arguments of both sides concerning the validity of the severance letter.

On behalf of the respondent, Mr Connolly submitted that there is no legal obligation on an employer to ensure that an employee gets independent legal advice before signing a severance agreement.  On his complaint form, the complainant stated that, “Without the benefit of legal advice, I did not give informed consent and therefore I am not bound by the provisions of this letter.”  Mr Connolly argued that it was not necessary for the complainant to take legal advice before giving “informed consent” to the terms of the settlement and informed consent is not subject to such a pre-condition.  It is common for trade union officials with no legal qualifications to advise on such agreements.  An employee is not required to take any advice whatsoever before giving informed consent and they may sign an agreement simply by making a decision to do so.

In two separate letters, the complainant was advised of his right to get legal advice; firstly, on August 17th when he was issued with the draft severance letter, and then on August 31st, when he signed the letter.  He had 14 days to consider the terms of the severance letter and to obtain legal advice if he wished to do so.

The complainant’s employment was terminated on August 31st 2022.  Two months later, in October, an Irish-based employee was appointed to a role in the respondent’s UK business, starting in January 2023.  As a result of this person moving, one of the client managers was promoted, and this created a vacancy for a job of client manager.  This vacancy was advertised in December 2022.  This was not the complainant’s job, but a vacancy that arose from an internal promotion.  The number of client managers is consistent with the number employed following the complainant’s departure on August 21st 2022.

The respondent’s rejects the complainant’s assertion that the was under psychological distress and that he did not have the mental capacity to understand what he was signing in August 2022.  He signed the letter on August 31st, having been notified of his redundancy on August 5th and having received a draft of the severance letter on August 17th.

In the weeks prior to the termination of his employment, the complainant was at work and not sick, and he sent emails to the HR department about his pending departure.  His correspondence contains no reference to stress or duress and, when he returned the signed severance letter, he thanked the HR department for their support during the process.  The complainant provided no evidence that he suffered from “severe psychological distress” as he claimed on his complaint form, which rendered him unable to understand the implications of signing the letter.  In the email in which he returned the signed letter, he raised queries about payment, but he never referred to being under duress because of the redundancy process.

Mr Connolly submitted that there is no evidence that the respondent placed the complainant under duress to sign the waiver agreement and there was no threat of the possibility of losing the severance payment.  This allegation is at odds with the complainant’s expression of gratitude to the HR department when he returned the signed letter.

The complainant contends that the did not know or understand the legal effect or implication of the severance letter.  Mr Connolly pointed out that the letter is one page long and written in simple English.  It clearly sets out that an employee who signs the letter is waiving all claims in consideration for the money offered.  He said that it is not credible for the complainant to assert that he did not understand the document.  If the complainant was confused about any aspect of the letter or, if he had questions about the contents, he could have addressed these with the respondent or with his solicitor prior to signing.  Mr Connolly argued that, five months after signing the letter and receiving the ex-gratia payment is not the time to do so.

Legal Submissions

Mr Connolly submitted that it is well established that statutory rights may be waived provided there is informed consent on the part of the employee.  Severance agreements are based on an equitable position that, in return for the employer paying an amount over and above the employee’s statutory rights, the employee agrees to waive their right to bring claims,

In this case, the complainant received an ex-gratia sum of €17,449.87, based on four weeks’ pay per year of service, calculated on his basic wages plus commission.  As the payment has not been returned, the respondent’s position is that a valid and legally binding agreement exists between the parties.  It is the respondent’s position that it must be entitled to rely on the waiver agreement to the effect that it means that the payment was in full and final settlement of all claims against them and that they are entitled to avoid these proceedings.

Mr Connolly referred to several legal precedents, starting with the decision of the High Court in Sunday World Newspapers Limited v Kinsella and Another[1] where, Mr Justice Smyth overturned the decision of the Labour Court and 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.”

Mr Justice Smyth went on to hold that the question of whether statutory rights have been compromised is a matter for the proper construction of the agreement itself.  From the language used in the agreement, Mr Connolly argued that there can be no question that it is intended to mean that this claim under the Unfair Dismissals Act is captured by the waiver, which is in full and final settlement of that claim.

Regarding informed consent, it is adequate for the respondent to have advised the complainant of his entitlement to seek legal advice before signing the agreement.  Whether an employee in these circumstances takes legal advice is a matter for themselves.

In Hurley v Royal Yacht Club[2], 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 employee be advised of their legal entitlements and that any compromise agreement lists the enactments being compromised;

b)      That the employee is advised in writing that they should take appropriate legal advice.

Mr Connolly submitted that, in this case, both tests are made out and that, as a consequence, the WRC has no jurisdiction to hear the complainant’s claim of unfair dismissal.

Mr Connolly referred to the following decisions of the WRC and the Labour Court on the subject of waiver agreements, all of which concluded that, where a severance agreement was reached between the parties, any claim of unfair dismissal has been compromised.

A Catering Assistant v A Catering Company[3]

Starrus Eco Holdings Limited t/a Greenstar and Gerald O’Reilly[4]

In her decision in A Former Director v A Company[5], the adjudication officer, Ms Orla Jones, referred to the case of Healy v Irish Life Assurance PLC[6], where Mr. Healy issued High Court Proceedings against his employer in 2000.  In 2011, he attended talks at which a full and final settlement was reached, documented and signed by all parties.  Mr. Healy then made a complaint to the Equality Tribunal under the Employment Equality Acts stating that he was not aware what was going on at the talks and that he was rushed into making a decision.  The Equality Tribunal found that he was estopped from making a complaint because he had entered a settlement agreement in which he had waived all claims arising from the termination of his employment.  This position was upheld on appeal to the Labour Court.  Relying on that decision, in A Former Director v A Company, and noting that the settlement agreement signed between the parties stated that it was “full and final,” she said that this means “full and final.”  She noted that the complainant could not ignore the obligations placed on him by signing the agreement and she decided that she did not have jurisdiction to hear the case.

In that decision, Ms Jones referred also to the Supreme Court’s decision in Doran v Thompson[7], where the Court held in that case that:

“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it [is] well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and the[n] he may be restrained in equity from acting inconsistently with such promise or assurance.”

Finally, Mr Connolly referred to the decision of the adjudication officer in Declan Coleman v Drogheda Lodge Limited[8].  Mr Coleman signed a severance agreement, having been advised of his right to take legal advice.  The adjudication officer found she did not have jurisdiction to inquire into the complaints and stated,

“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 his ability to pursue future claims against the Respondent in any forum including the WRC”.

In this case, Mr Coleman stated that he signed the compromise agreement under dispute and he felt that this gave him the right to revisit the matters contained therein.  Citing the conclusions of Mr Justice Smyth, the adjudication officer concluded,

“Again, following the reasoning of Smyth 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.”

In Mr Long’s submission on behalf of the complainant, he said that the process that ended with his redundancy was conducted at “breakneck speed,” using opaque and subjective selection criteria, tailor-made to target him.

The complainant is 58 years old, and before he was made redundant, he enjoyed a thriving career as a very senior client and sales manager in the IT sector.  He was responsible for winning a number of large contracts for the respondent, including his team’s largest contract for 2022, worth €4.3m.  Prior to his dismissal, he earned in the region of €100,000, comprising an annual salary of €71,000 and a bonus of €30,000.  He also had a company car.  Nearly one year later, the complainant remains unemployed, creating a humiliating gap in his career.

Mr Long argued that there is nothing radical or unusual about the proposition that the signing of a waiver without informed consent makes the waiver invalid.  He referred to section 13 of the Unfair Dismissals Act:

“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.”

Mr Long asserted that this clause renders void any provision in an agreement which “purports to exclude or limit the application of or is inconsistent with any provision of” the Unfair Dismissals Act.  He argued that this section is absolute and unqualified in its terms, reflecting an important policy judgement that, “contracting out” of the protections of the Unfair Dismissals Act should not be permitted because to do so would wholly undermine the protective purpose of the Act.

The Essential Ingredient:  Informed Consent

Mr Long referred to the Circuit Court decision of Mr Justice Buckley, which was cited by Mr Connolly, Hurley v Royal Yacht Club (footnote 2).  Judge Buckley held that an employee could enter a binding compromise agreement, provided that he or she did so on the basis of informed consent.  The Court reasoned as follows:

“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 applicant.  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 his case would have been legal advice. In the absence of such advice I find the agreement to be void.”

Subsequently, in Sunday Newspapers v Kinsella and Brady (footnote 1), also cited by Mr Connolly, for the respondent, Mr Justice Smyth referred to the above passage from Hurley with apparent approval and accordingly it is submitted that the necessity for informed consent supported by appropriate advice is the irreducible minimum requirement in cases where an employee compromises a claim under the Unfair Dismissals Act.

Mr Long submitted that the most important case in this area is the recent High Court decision in Board of Management of Malahide Community School v Conaty[9].  Mr Long submitted that this is the most comprehensive consideration by the High Court of the caselaw on the waiver of statutory employment rights.  At paragraph 73 of his judgment, Mr Justice Simons summarised the caselaw in the following terms:

"The principle of ‘informed consent’ as set out in the judgements in Hurley v. Royal Yacht Club and Sunday Newspapers Ltd. v. Kinsella (discussed above) apply by analogy.  A person can only be said to have waived a statutory right if they do so on an informed basis."

For this reason, Mr Long argued, the essential ingredient for a valid waiver is informed consent.

At paragraph 25.54 of his book, “Redmond on Dismissal Law, Dr Desmond Ryan concurs with this analysis:

"Section 13 of the 1977 Act renders void any provision in an agreement, whether a contract of employment or not, and whether made before or after the commencement of the Act, to the extent that it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act. This may be relevant where a settlement has been negotiated between an employer and employee.  It will not apply, however, where the complainant has had independent advice.  An agreement should be regarded as valid where it is entered into by a complainant with full knowledge of the legal position, where statutory entitlements are discussed in the negotiations leading up to the making of the agreement and the compromised settlement can be objectively described as adequate."  

Mr Long submitted that it is not enough for a party to know that a serious right is in issue or that legal consequences may follow from agreeing to a waiver.  What is required is that it can be demonstrated that the employee had full knowledge of the legal position and what exactly they were waiving.

How that principle falls to be applied is fact sensitive and depends on the circumstances.  Sometimes it is sufficient for an employee to speak to a union official or a solicitor.  This may not always be necessary, if a party agrees not to pursue a complaint on foot of an active dispute that they know and understand.  Mr Long submitted that the respondent’s submissions miss this point and “cherry-pick” a number of cases where parties have failed to overturn settlement agreements.

Mr Long argued that, in the complainant’s case, the threshold of informed consent is particularly exacting.  Redundancy is a complex area of law and determining the fairness of a selection process can be a complex area, factually and legally.  Also, it was not obvious to the complainant what a defect in a redundancy process would look like.  Therefore, without appropriate advice, it would not have been possible for the complainant to know if he had been unfairly dismissed.  He could never have given informed consent to waive a claim arising out of the redundancy process when he signed the waiver letter.  Mr Long argued that, for this reason, the waiver is invalid as it precludes the complainant from pursuing a complaint for unfair dismissal.

Repeating his argument that the complainant was made redundant with undue haste, Mr Long said that the complainant was facing into a grim market outlook in the IT industry, and, as he was in his late 50s in what he described as “an ageist industry,” he understood that it would be very difficult to find alternative employment.  He was concerned about his bonus payment which was due to be paid later in the year and he was afraid of the financial implications of making a fuss.

For these reasons, Mr Long argued that it cannot be said that the complainant gave his informed consent to his redundancy.  The respondent cut corners and did not follow the standard industry practice of paying for legal advice for an employee.  An even more simple solution would have been to refuse to allow the complainant to sign the waiver document until he had shown that he took legal advice.

In conclusion, Mr Long submitted that the doctrine of informed consent is an essential part of Ireland’s employment rights architecture and he asked me to dismiss the respondent’s preliminary objection and allow the complainant to avail of his constitutional right to justice at a full hearing of his complaint.

Evidence of the Complainant, Mr Donal O’Donovan

In response to questions from Mr Long, the complainant said that he understood that he wouldn’t get the severance payment unless he signed the waiver.  On August 17th, he received an email with the waiver agreement attached and a schedule for the payroll department with details of the tax treatment of his ex-gratia and statutory payments.  He said that, once the process began, he was trying to understand how his pay was going to be processed.  He said that he was told that he wouldn’t get the severance payment unless he signed the agreement.  He said that he went into “survival mode” and he thought he’d get a job by Christmas.  He said that, at the time he was made redundant, he didn’t think about the amount of explaining he would have to do regarding why he was let go.

Mr Long pointed to the last line of the settlement letter and the phrase,

“I confirm that I have been advised of my right to obtain independent legal advice and have been provided with sufficient time in which to do so.”

The complainant said that this wasn’t explained to him before he signed the letter.   He said that he didn’t realise that he couldn’t pursue a claim of unfair dismissal until he found out later.  He said that he thought he was unfairly dismissed. 

Cross-examining of Mr O’Donovan

In response to a question from Mr Connolly, the complainant said that he previously accepted a voluntary redundancy package from a former employer, IBM.  He said that he “certainly signed a document” but he could not recall if he got legal advice. 

Mr Connolly referred to the complainant’s experience negotiating contracts, and particularly the most recent contract he negotiated for the respondent worth €4.3m.  The complainant said that these were sales contracts and that the company’s legal counsel would work on the substantive parts of the contract terms.

Mr Connolly asked the complainant if a binding contract existed if he offered him €17,000 and he signed a waiver in acceptance of the money.  The complainant said that these circumstances were contrived.  He said that he’s not a solicitor, and he can’t answer the question.

Mr Connolly referred to the complainant’s contention that he didn’t understand the document he signed.  Mr Connolly asked him if he understood the phrase, “These sums are in full and final settlement of all claims…”  The complainant replied that he didn’t know how something that is unfair can become valid.  He said that he didn’t think he waived his rights when he signed the document.  He said that he didn’t understand what was meant by “these sums.”  He said that he was under psychological pressure when he signed the document.  He said he was thinking that he needed to get whatever he could because he was “out the door.”  He feels that he was unfairly dismissed.

Mr Connolly asked the complainant why, if he had an inkling at the meeting on August 5th that something was wrong, he signed the waiver on August 31st.  Why didn’t he take advice?  Mr O’Donovan said that he thought he wouldn’t get the money.  He said that he was being “hurried out” and that he went into survival mode. 

Mr Connolly asked the complainant if he accepts that he was advised to take legal advice.  He agreed that he had been so advised, but he said that he did not take advice.  He said that all he was thinking about was that he had to mitigate his loss.  He said that he needed to make sure that he got whatever money he was due.

Mr Connolly asked the complainant why, if he regrets signing the waiver, he hasn’t returned the ex-gratia payment?  He replied that he didn’t know what his legal rights were in relation to the €17,000.  He said that he decided that the waiver was invalid in December 2022, when he went to his solicitor.

At the conclusion of his evidence, in response to questions from me, the complainant said that he decided that his dismissal was unfair when he started to look for another job.  He said that, if he had found a job, he “might have taken it on the chin.”

The Legal Position on Waiving Statutory Rights

One of the most fundamental protections in Irish employment law is set out at section 6 of the Unfair Dismissals Act 1977 which provides that,

“…the dismissal of an employee shall be deemed … to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The intention of section 13 of the Act appears to make it illegal for an employee to agree with their employer that this, and any other provision of the 1977 Act will not apply to the termination of their employment:

“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.”

What is the status therefore, of settlements reached between employees and their employers, where, in return for an agreed payment, an employee waives their right to pursue a claim under the Unfair Dismissals Act and perhaps a list of other enumerated Acts?  In the case referred to by Mr Long of Board of Management of Malahide Community School v Conaty (footnote 10), Mr Justice Simons addressed this conundrum:

“If the correct interpretation of s.13 is that a settlement agreement would be ineffective because it would involve the former employee waiving his or her statutory rights, then this would impact on the ability of parties to compromise claims for unfair dismissal.  Rather than settle or compromise claims, the parties would have to pursue legal proceedings to conclusion.”

In response to this potential legal quagmire, Simons J noted that the courts have taken a practical approach and “the case law indicates that it is permissible for an employee to make an informed waiver of his or her statutory rights.”

At the hearing of the instant complaint, both sides referred to Hurley v Royal Yacht Club (footnote 2) which was also cited by Simons J in Conaty.  In the Circuit Court decision in Hurley, Mr Justice Buckley held that it cannot have been the intention of the legislature to prevent employers and employees from compromising claims under the 1977 Act.  He went on:

“The question which therefore arises is: under what circumstances can claims be legitimately compromised. Not, I think, until the employee is in a proper position to agree to a compromise.”

Being in a proper position to agree to a compromise must mean that an employee understands that the agreement brings their employment to an end with no future recourse to the protection of the Unfair Dismissals Act.  They must also have an opportunity to take advice from a solicitor or a competent person and they must be satisfied that the consideration on offer is reasonable in the circumstances.  These are the components of “informed consent” which, Mr Long argued, was absent when the complainant accepted settlement terms in August 2022.  

Findings

The redundancy of the complainant’s job was first mentioned at a meeting with the HR manager on August 5th 2022 and, by August 31st, he had left the company.  While not exactly “breakneck speed” as described by his counsel, 26 days’ notice wasn’t overly long, but still more than his statutory entitlement to two weeks’ notice.  The letter of August 5th which confirmed the redundancy of the complainant’s role stated that he had a right to obtain independent legal advice and offered him the opportunity to raise any questions with the HR operations manager.

On August 17th at 15.23, the HR manager sent the complainant details of his ex-gratia payment and a draft of the severance agreement.  He was also offered the opportunity of a meeting with an outplacement service provider, Right Management.  The complainant replied to the HR manager’s email 10 minutes later saying:

“Hi Deborah

I have read the letters you have sent.

I just want to make sure that I understand what I read. What you are providing me in the letters that you sent is just the redundancy terms and figures?  If so I understand it based on our previous conversations.  The only point I will make is that you have an end date of the 31st of August 2022 when it actuality (sic) it should be the 30th of September 2022.  Does that make a material difference to your calculations?

The payroll amount which I will receive as normal this month will be my salary which will include an additional four weeks on top of the normal salary as per our previous correspondence and all commission due this month.  On the next payroll date in September I will receive the balance of commission due as commission is paid two months after the signing of Business.  For September this amount will just be paid into my Bank and I do not have to do anything further to claim it.

I just want to make sure that I am clear on all fronts before signing the letter.

Many thanks

Donal”

Around 10 minutes later again, the HR manager wrote to the complainant letting him know that his end date was amended to September 29th and that his redundancy lump sum had been re-calculated to reflect this additional four weeks’ service.  She told him that, in August, he would be paid his normal salary plus any commission due up to the end of August, a month’s pay in lieu of notice and his redundancy lump sum.  She told him that, in September, he would be paid any outstanding commission.

It appears that the complainant had a conversation with the HR manager the following morning because, at 11.52, he sent her an email saying, “As we just discussed…I am happy for you to share my details with [Right Management] as any help or information in this situation is welcome.”

In most organisations where employees are paid monthly, payday is the last Thursday or Friday of the month.  The complainant received his final wages on Friday, August 26th, and, with his wages, he received €21,145 comprising statutory (€3,696) and ex-gratia (€20,524) redundancy payments plus €612.17 in lieu of the taxable element of the ex-gratia amount.  The complainant signed the waiver five days later, on August 31st.  Having received the money before he signed the waiver, it is not credible for the complainant to assert that he was concerned that he wouldn’t be paid the money if he didn’t sign it.  By August 31st, the money was safely in his bank account and, if he had not signed the waiver, there is very little that the respondent could have done about it, apart from perhaps, withholding any bonus due in September.

In any event, the complainant signed the waiver on August 31st and it is my view that he did so in full knowledge of the implications.  Depending on the circumstances, the nature of the employment, the seniority of the employee, the length of service and the amount of severance pay involved, informed consent need not be legally informed consent.  An employee may be sufficiently informed, based on their own competence and experience, to make a decision regarding the termination of their employment.  I am satisfied that the complainant signed the waiver on August 31st 2022 based on informed consent.  I have reached this conclusion for the following reasons:

1.              On August 17th, the complainant replied to the HR manager’s email containing details of his redundancy package and a draft waiver.  He said that he understood the redundancy terms and figures and the only points he questioned were his end date and the timing of his bonus pay.

2.              The ex-gratia payment offered to the complainant of €20,524 was more than five times the value of his statutory redundancy lump sum of €3,696.  The payments are clearly differentiated in the document provided to the complainant on August 17th 2022 and it is evident from his response to the HR manager on the same day that he considered that the amount was acceptable.

3.              The complainant had been made redundant previously after 15 years in a job and, in his evidence, he said that he received a severance payment.  He was unable to recall if he signed a waiver agreement, but I find it highly unlikely that he did not.  As such, he had experience of the redundancy process and he was informed about his rights.

4.              The complainant is a senior manager and experienced in negotiating commercial agreements.  The severance terms he agreed with his former employer were not complicated and were committed to writing in less than 300 words.  The document is not legalistic and refers only to four key pieces of legislation; the Minimum Notice and Terms of Employment Act, the Organisation of Working Time Act, the Redundancy Payments Act and the Unfair Dismissals Act.  Because the document is written in simple English, I do not accept the complainant’s assertion that he did not understand what he was signing or that he did not understand that the payment was in full and final settlement of any claim that his dismissal was unfair. 

5.              The complainant was advised in writing twice that he was entitled to seek independent legal advice.   The only reasonable explanation for him no doing so is that he decided that it was not necessary.  

6.              The correspondence between the complainant and the HR manager before the termination of his employment displays no sign of stress or pressure.  There is no evidence that anyone put him under pressure to sign the waiver and his assertion that he signed it because he was afraid that he wouldn’t get the payments is not credible.

7.              Prior to the termination of his employment on August 31st, the complainant expressed no opposition to the proposal to make his job redundant and he engaged freely with the HR department concerning his severance terms.  He didn’t raise any concerns about why he was selected over anyone else and he didn’t suggest that he could do a different job.  In his evidence, he said that he may have “taken it on the chin” if, towards the end of 2022, he had got another job.  It seems that, contrary to his assertion that he was distressed when he was made redundant, he became aggrieved only months later when he had difficulties finding an alternative job.

Conclusion

The case law referred to at the hearing of this matter goes no further than a finding that an employee must be advised in writing of their entitlement to seek legal advice, and nowhere has it been asserted that, for a severance agreement to be legally sound, the employee must have taken legal advice.

I am satisfied that the complainant freely entered into a compromise agreement in which he accepted €20,524 plus a taxable sum of €621.17 in full and final settlement of his rights under the Unfair Dismissals Act 1977, the Terms of Employment (Information) Act 1994, the Minimum Notice and Terms of Employment Act 1973 and the Redundancy Payments Act 1969.  Taking guidance from the decision of the High Court in Sunday World Newspapers Limited v Kinsella and Another (footnote 1), I am satisfied that the agreement signed by the complainant was properly constructed and clear in its intention to offer this payment in full and final settlement of any future claims against the respondent.  I am satisfied that the complainant signed the agreement based on his informed consent to relinquish his rights under this legislation, that he was advised in writing of his entitlement to seek legal advice, and that he freely decided not to do so.  I find that the complainant’s decision not to get legal advice was reasonable, based on the simplicity of the waiver agreement and the ability of the complainant to inform himself of its implications.  I find no evidence of pressure being exerted on the complainant to sign the agreement and his correspondence with the HR manager shows no sign of distress and not even a modicum of annoyance at his predicament.

I have considered the evidence of the complainant at the hearing of this complaint, and I have examined the relevant case law submitted by both sides.  I am satisfied that, with full knowledge and understanding of the implications, the complainant waived his right to pursue a claim under the Unfair Dismissals Act and I find that I have no jurisdiction to investigate his complaint.

I find that, in the agreement he concluded with his employer on August 31st 2022, the complainant waived his right to pursue a claim of unfair dismissal.  For this reason, I decide that I have no jurisdiction to investigate this complaint.

Severance terms, waiver agreements