Complainant

Respondent

Parties

Kieran  Tarbett

Lighthouse Media Ltd

Representatives

William Wall of Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052002-001

29/07/2022

The Complainant worked for the Respondent company up until his redundancy in September 2020 which was agreed alongside a wider settlement related to High Court proceedings.

A severance agreement was signed and witnessed. This agreement related solely to the employment relationship and concluded that the Complainant was to be paid statutory redundancy. The agreement failed to specify the dates of the Complainant’s service. A dispute then arose about the length of his service. The Respondent maintains that the Complainant was hired in 2015 whereas he believes he was hired in 2013. After this issue failed to be resolved the Complainant issued WRC Complaints in July 2022, some 96 weeks after the agreed exit date.     

Preliminary issue

The Respondent representative respectfully submitted that the WRC does not have jurisdiction to hear this complaint as a severance agreement has been signed. They also raise the significant delay in issuing complaints which is excess of the time limit set out in the Redundancy Payments Act.

The Complainant outlined that he agreed to resign from the Respondent as part of a wider settlement of matters before the High Court. He produced a copy of the severance agreement and agreed that he had signed it. He outlines that it has not yet been paid.

The Complainant’s reason for delay in referring matters to the WRC was that his solicitor was writing to the Respondent seeking payment and they hoped the matter might be resolved.

The Respondent respectfully submits that the WRC does not have jurisdiction to consider the complaints.

Preliminary Issue 1 – Severance Agreement

In Sunday Newspapers Limited v Kinsella and Bradley the Labour Court considered whether a settlement agreement (“waiver”) can bar the WRC from having jurisdiction over a statutory complaint. This position was reaffirmed by the Court in Keelings Retail Unlimited Company v Wasim Haskiya.

In both these cases the Court emphasised the following criteria when considering the matter:

•The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.

•An agreement to waive statutory rights must be supported by adequate consideration.

•The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.

•The waiver should list the various Acts being taken into account.

•The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.

•It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver

The Complainant did provide free and informed consent and had the benefit of professional representation in meaningful negotiations. The Redundancy Payment Act is listed in the agreement as are a number of other employment related acts.

The agreement set out that the Complainant was agreeing to be made redundant. However, it only provided for payment of the minimum statutory lump sum which he was entitled to. The agreement failed to particularise that entitlement and there is a dispute as to whether it was ever paid. There is also reference to the transfer of studio buildings to the Complainant but neither party made submissions on this issue and the value of it. I do not know whether this concerns the transfer of a short term lease or a freehold interest of significant value.

Given that the terms of any waiver must be construed strictly against the party from whom it emanated, I cannot be satisfied that this agreement was supported by adequate compensation as required above. 

As such the Respondent has failed to establish that I do not have jurisdiction as the result of the severance agreement.  

Preliminary Issue 2 – Time

The Respondent refers to the 52-week time limit provided for in the Redundancy Payments Act 1967 and submits that the Complainant falls well outside that time limit. His complaint form was submitted approximately 96 weeks after the termination date.

 The Respondent further refers to section 24(2A) of the Act wherein it states;

Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

The Respondent further refers to the case of Cementation Skanska v Carroll wherein the Labour Court considered the issue of reasonable cause;

It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.

The reasonable cause put forward by the Complainant was that he was seeking to resolve matters directly with the Respondent and that his solicitor continued to write to them seeking payment from September 2020.  The Respondent points out that this demonstrates that the Complainant was fully represented and cognisant of his rights under this act. They note that his solicitor was writing to the Respondent threatening to submit complaints within the above time limit but did not. These actions neither explain the Complainant’s delay in submitting complaints nor do they afford an excuse for the delay.

In the circumstances I agree with the Respondent. I am not satisfied that the Complainant has provided reasonable cause which would allow me to extend the above time limits in line with the established case law on this issue. I do not have jurisdiction to consider this case further.

The complaint is not well founded.