Complainant

Respondent

Parties

Derek Small

Orbcomm Ireland

Complainant

Respondent

Anonymised Parties

Representatives

Kevin Bell BL,                                 Bryan Dunne Solr.,                            Annemarie Muldoon Solr.,    Matheson Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060702-001

22/12/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 22nd of December 2023.

The Complainant was not represented and made his own case.  At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant did not supply any supplementary evidence, nor did he provide a formal submission. The Complainant gave his oral evidence and relied on the submission as to fact provided for in the workplace relations complaint form. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed. The Complainant makes the case that his selection for Redundancy was unfair and that his role was advertised within two months of his termination of employment.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant.

The Respondent had full legal representation at this hearing. A number of witnesses for the Respondent company also attended this hearing. These included the European HR Manager and the European VP for International sales. The Respondent provided me with one written submission dated 13th of May 2024. The submission raised a preliminary issue which I was asked to address in advance of the substantive issue.

The Respondent rejects that there has been an Unfair Dismissal and asserts that the Complainant has waived his entitlement  to bring a claim under this Act in circumstances where he has signed a severance agreement waiving his Statutory rights.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

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.

I have carefully considered the evidence adduced in the course of the hearing. The Complainant was employed by the Respondent as a Product Owner pursuant to a written contract of employment commencing on 6th September 2017. He was later promoted to the position of Technical Product Manager pursuant to a new written contract, dated 14th January 2019. The Complainant remained employed by the Respondent until 25th October 2023 when his employment was terminated seemingly by reason of redundancy.

I accept that in October of 2023 the Respondent considered the Complainant’s role for redundancy and entered into talks with the Complainant. Two to three online conversations were had. It seems that within seven or eight days of the issue first being mooted, the Complainant’s position was formally made Redundant. The Complainant was informed of the outcome of the redundancy process on the 25th October 2023 at which point his employment with the Respondent ceased. On the same day, Mr. Christian Allred, Executive Vice President of the Respondent, confirmed the outcome of the redundancy process in writing. The Complainant’s Statutory Redundancy and Notice payments were made known in the same letter. Mr. Allerd also offered the Complainant a modest ex-gratia payment of €1,000 in exchange for entering into a Compromise Agreement (“the Agreement”) waiving, inter alia, the Complainant’s right to bring any action against the Respondent under the Unfair Dismissals Act 1977.

In the letter proposing this offer, Mr. Allred expressly advises the Complainant that signing the proposed agreement would entail waiving all claims against the Respondent. The letter expressly encourages the Complainant to seek independent legal advice, and requests that the Complainant indicate his response to the offer after a period of one week, on 1st November 2023.

The relevant paragraph from that letter reads:

“Owing to the fact that the ex-gratia payment set out in paragraph (4) above is being offered to you over and above your statutory entitlements, that payment is offered subject to your signature of the enclosed compromise agreement waiving all claims against the Company. I would suggest that you seek independent legal advice prior to signing this agreement. If you wish to accept the ex-gratia payment on offer, please return the compromise agreement to me executed on or before 1 November 2023.”

The Complainant duly signed the Agreement on 31st October 2023 and returned that signed copy to the Respondent on 2nd November 2023. The Respondent paid, and the Complainant accepted, the ex-gratia payment on 23rd November 2023.

It should also be noted that the Respondent company had also made financial provision to pay a legal advisor for advice in relation to the Redundancy, the ex-gratia Payment and the Statutory provisions being waived.

The Agreement, which was opened to me, provides at clause 2 that the ex-gratia payment shall be:  

“..in full and final settlement, release and discharge of any and all actions or causes of actions, claims, complaints, contracts, liabilities and agreements as the Employee has or may have against the company… whether arising under Statute, common law, contract, tort (including claims for personal injuries), equity or otherwise arising out of his employment and/or the termination of such employment.”

The Agreement goes on to expressly set out all of the legislation covered by it and the Agreement refers in express terms to the Unfair Dismissals Act 1977.

In signing the Agreement, the Complainant warrants and confirms that he has been advised and afforded the opportunity of obtaining independent legal advice regarding the contents and effect of the Agreement and that he understood the effect and implications of it. To be fair to the Complainant he did not suggest that he did not understand the intended effect of the Agreement. The Complainant did give evidence that he felt the time being given was short, and he also felt he was being rushed into providing his signature. However, it also must be noted that eh Complainant never looked for more time, never looked to slow the process down and, crucially, he never sought independent legal advice.

I have to attribute some modicum of good sense to the Complainant. He was, after all, at a management level holding down a good salary. I am satisfied that he knew or ought to have known what he was doing when he signed the agreement.

The Complainant did not return to the workplace through his Notice period, and I understand that the complainant found alternative employment some months later. I am satisfied that the Complainant had had no intention of returning to this issue of the Redundancy after he had signed the Agreement. However, on or about the 20th of December 2023 (some two months after the termination of his employment), the Complainant found a job vacancy advertisement for a position with the Respondent company. The Complainant perceived the position to be his position. It was this discovery which led the Complainant to issue the Unfair Dismissals complaint two days later on the 22nd of December.  

As it happens, I have now had an opportunity to look at the job vacancy advertisement in question and (though similar) it is to my mind doubtful that the job advertised is the Complainant’s job.

In any event, I have been asked by the Respondent to confirm that the Complainant’s complaint  cannot proceed in circumstances where he has waived his rights under the Unfair Dismissals Act 1977. The Respondent asserts that there is a considerable public interest in encouraging parties to fully and finally resolve disputes arising from employment disputes in this manner in order that litigation might be avoided where possible and that this objective has been protected by the Courts.

In Hurley v Royal Yacht Club [1997] E.L.R. 225 the Circuit Court, upheld this long-standing principle and found that such agreements are enforceable at law when an employee has given informed consent to the waiver. In considering the question of informed consent, the Court found two factors to be significant:

(1) the compromise agreement must make clear which statutes are covered by the waiver, and

(2) the employee should be advised by the employer to take appropriate advice as to his rights before signing the compromise agreement.

The Respondent herein states that it has fulfilled both of those obligations.

The High Court adopted the approach in Hurley v Royal Yacht Club in  Sunday Newspapers Ltd v Kinsella and Bradley [2007] IEHC 324 wherein Lynch J. sets out the law in that judgment in the following manner:

“The decided cases indicate that a party may enter into an agreement in relation to his statutory rights and the question of whether or not such rights have been compromised is a matter for the proper construction of the agreement itself. In the instant case the agreement is expressly stated to be in full and final settlement and that means what it says. It says so in express terms 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 submission goes on to state that where there is a compromise agreement in place between an employer and an employee, the ordinary rules of construction apply to determine whether or not the subject matter of the proceedings is covered by the compromise agreement.

The principal of informed consent in the employment context was considered more recently by the High Court in  Board of Management of Malahide Community School v Conaty [2019] IEHC 486 albeit in the context of a waiver in a contract of employment as opposed to a compromise agreement.  

At para.59 of the judgement, Simons J. notes that:

“In particular, I agree that it is open in principle to an employee in the context of the settlement of proceedings for unfair dismissal to confirm that the agreement is in full and final settlement of all claims under the Unfair Dismissals Act. This is subject always to compliance with the 5 requirements identified in Hurley v. Royal Yacht Club. Whereas a ‘full and final settlement’ clause would appear to offend against the literal wording of s.13, I am satisfied that, on a purposive interpretation, it is open to employee to waive their right to pursue further proceedings under the Act if this waiver is given on the basis of ‘informed consent’. I say this for two reasons. First, the public interest in ensuring that parties are able to resolve disputes without having to pursue legal proceedings to a conclusion is best advanced by this interpretation. Secondly, an agreement to accept a particular amount in full and final settlement of a claim for unfair dismissal, on the basis of informed consent, in a sense represents a vindication of the employee's rights under the legislation. The purpose of the legislation is to provide redress in the case of unfair dismissal. If an employee can obtain proper redress without having to pursue legal proceedings to their conclusion, such an outcome is not necessarily inconsistent with the purpose of the legislation.”

I find the reasoning here to be unassailable and the Agreement entered into by the parties in October of 2023 self-evidently fulfils all of the criteria established in law to determine its efficacy. Its contents are binding upon the parties and, in circumstances where the Complainant contractually agreed to waive his rights under the Unfair Dismissals Act 1977 in consideration for receiving the ex-gratia payment, the WRC does not have jurisdiction to consider the within claim brought pursuant to that legislation.

I should note that the the Labour Court considered the efficacy of settlement agreements in Keelings Retail v. Haskiya UDD2023 and the criteria set out therein are applicable in this situation.

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

CA-00060702-001 – the complaint herein fails in circumstances where the Complainant contractually agreed to waive his rights under the Unfair Dismissals Act 1977 in consideration for receiving an ex-gratia payment. The WRC does not have jurisdiction to consider the within claim brought pursuant to that legislation.