Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Self-represented

Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00057362-001

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014

CA-00057362-002

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00057362-003

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act 1998

CA-00057362-004

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00057362-005

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Parent’s Leave and Benefit Act 2019

CA-00057388-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act 1994

CA-00057388-002

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Parent’s Leave and Benefit Act 2019

CA-00057389-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act 1994

CA-00057389-002

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Parent’s Leave and Benefit Act 2019

CA-00057390-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act 1994

CA-00057390-002

28/06/2023

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

CA-00057463-001

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00057362-006

13/09/2023

The complainant was employed with the respondent from 8 January 2018 until 3 July 2023.

The complainant submitted complaints under various pieces of legislation to the Commission on 27 June 2023, 28 June 2023, 3 July 2023 and 13 September 2023. 

There was a preliminary issue concerning my jurisdiction to hear the complaints, save for the complaint referred under the Payment of Wages Act 1991.  The preliminary issue related to a Mediation Agreement concluded between the parties on 24 March 2022 at the Workplace Relations Commission.

The complaint under the Payment of Wages Act, received 13 September 2023, concerned non-payment of salary to the complainant for June 2023.

At the hearing on 25 January 2024, the complainant withdrew 4 of the 13 complaints as they were duplicates of other complaints. 

The complainant submitted that the respondent was using the Mediation Agreement as a shield or a weapon to prevent the investigation of her complaints.  The respondent has done so many things that offend against employment law after the Mediation Agreement was concluded, and which have nothing to do with the Mediation Agreement.  Without hearing about the terms of the Mediation Agreement, the truth cannot be established.  The respondent has used the Mediation Agreement to hinder and disadvantage the complainant’s employment with the respondent.

The complainant submitted that the Mediation Agreement should be revisited and opened up because she had lacked representation in concluding the Agreement.  The respondent did not offer the complainant legal representation and she did not have the benefit of independent advice.  The complainant signed the Agreement without knowing the consequences, and that she would be prejudiced by signing. 

The complainant sought to engage with the respondent in May 2023 in relation to her return to work from leave.  The complainant was pushed into a corner whereby she was given the option of taking either unpaid leave or annual leave as the respondent was not able to facilitate her return to work on 1 June 2023.  The complainant was forced to take annual leave even though this was not suitable for her.  The respondent then engaged the complainant in an email exchange for the month of June 2023 while she was on annual leave.  The complainant was not paid for June 2023, but she was engaging fully with the respondent at this time.

The complainant submitted that signing the Mediation Agreement has breached her employment and equality rights.  The complainant cited case law in support of her submission that the terms of the Mediation Agreement should be reviewed in the context of these complaints.  The Agreement has disadvantaged the complainant because she cannot talk about it.

In relation to 12 of the 13 complaints lodged by the complainant with the Commission, there was a preliminary issue concerning a Mediation Agreement entered into by the parties in accordance with section 39 of the Workplace Relations Act 2015.  

The Mediation Agreement is binding on the parties and both parties are precluded from disclosing its terms in any proceedings, other than proceedings in respect of a contravention of the terms of the Agreement.  The current complaints concern either the terms of the Mediation Agreement or matters the subject of a previous WRC case which was compromised and settled between the parties.  The complainant cannot choose to breach the terms of the Mediation Agreement and open the Agreement to pursue these complaints before the Commission. 

It is clear from the complainant’s complaint forms that the complaints lodged with the Commission are of an alleged breach of the Mediation Agreement.   Any alleged contravention of the terms of the Mediation Agreement is not a matter for adjudication and is not a matter for the Commission as it is not a court of competent jurisdiction.

Both the complainant and respondent are legally bound by section 39(7) of the 2015 Act to keep the terms of the Mediation Agreement confidential and are precluded from disclosing its terms.  The complainant cannot choose to breach the terms of the Mediation Agreement to enable her to pursue the complaints currently before the Commission.  The respondent does not consent to the Mediation Agreement being published or discussed as per the confidentiality clause expressed in the Agreement.  The respondent is entitled to defend its position in line with its constitutional right to fair procedures and natural justice.

The respondent rejected the complainant’s assertions regarding the mediation process and the respondent’s actions subsequent to same.  The complainant entered the process and Mediation Agreement voluntarily.  The respondent has at all times abided by the terms of the Mediation Agreement.  The respondent is not engaging in covert behaviour in relation to the complainant or her employment.  It was in the process of the complainant’s return to work and the respondent seeking to give effect to the terms of the Mediation Agreement that issues arose.

The cases cited by the complainant do not relate to Mediation Agreements concluded under the Workplace Relations Act 2015.

CA-00057362-001, CA-00057362-002, CA-00057362-003, CA-00057362-004, CA-00057362-005, CA-00057388-001, CA-00057388-002, CA-00057463-001

Based on the submissions of the parties and the information before me, I informed the parties that I would deal with the matter of the complaints relating to a Mediation Agreement as a preliminary issue.

The respondent’s position is that these complaints concern the terms of a Mediation Agreement concluded between the parties on 26 March 2022 under the Workplace Relations Act 2015 (the “2015 Act”), and that I am precluded from hearing the complaints by reason of the terms of the Mediation Agreement and section 39 of the 2015 Act.

The complainant submitted that the respondent is using the Mediation Agreement to deter my investigation and adjudication of the complaints, that the Mediation Agreement was prejudicial to her and has been relied upon by the respondent to breach her rights.

The Mediation Agreement the subject of the preliminary issue is one that was concluded under section 39 of the 2015 Act.  Section 39 enables resolution of a complaint by way of mediation instead of adjudication.  It is apparent from the information before me that the complainant presented complaints to the Commission in October 2021 under section 41 of the 2015 Act, which complaints were referred to a Mediation Officer for resolution in accordance with section 39(1) of the 2015 Act.  A mediation meeting took place on 2 March 2022 in accordance with section 39(2) and (3) of the 2015 Act and a Mediation Agreement was concluded between the parties in resolution of the complainant’s complaints on 26 March 2022.  I am satisfied that that Agreement was in accordance with section 39(4) of the 2015 Act. 

The complaints bearing the above-referenced complaint numbers were presented by the complainant to the Commission under section 41 of the 2015 Act on dates in June and July 2023, and referred to me for adjudication.

I note the complainant’s submission on the first hearing date that it would be impossible to hear her complaints without opening the Mediation Agreement concluded in respect of her previous complaints.  The complainant subsequently submitted that the Mediation Agreement must be opened up to establish the truth.  The respondent asserted that it could not defend or respond to the complaints without opening the Mediation Agreement.  It is therefore common case that the terms of the Mediation Agreement and matters related to the mediation process have a bearing on the complaints before me. 

A fundamental principle of mediation generally and one that is reflected in section 39 of the 2015 Act is the confidentiality of the mediation process; this is not confined to the mediation agreement but extends to the mediation meeting, communications during the meeting, communications by a Mediation Officer with the parties and all records and notes also.   The respondent did not consent to publication of the Mediation Agreement or to disclosure of information furnished at mediation.

Section 39(7) and (8) of the 2015 Act provide:-

“(7) The terms of a resolution referred to in subsection (4) shall not be disclosed by a mediation officer or by either party to the complaint or dispute concerned in any proceedings before a court (other than proceedings in respect of the contravention of the terms of the resolution), or otherwise.

(8) All communications (including communications during a mediation conference) by a mediation officer with the parties to a complaint or dispute referred for resolution under this section to him or her and all records and notes, including records and notes relating to a mediation conference held for the purposes of resolving any matter to which the complaint or dispute concerned relates, shall be confidential and shall not be disclosed in any proceedings before a court (other than proceedings in respect of a contravention of the terms of a resolution referred to in subsection (4)), or otherwise.”

I have carefully reviewed the specific details of the complaints, the documentation and information before me.  I have also carefully considered the submissions of both parties in relation to the preliminary issue.  I am satisfied that the complaints before me concern the terms of the Mediation Agreement concluded by the parties and/or an alleged failure to implement the Mediation Agreement.   I am further satisfied that adjudication of the complaints would require reviewing the Mediation Agreement.

The complainant has referred in documentation before me to challenging the Mediation Agreement.  The complainant has submitted that the terms of the Mediation Agreement are disadvantageous to her, unfair and in breach of her employment rights.  The complainant further referred to stress at the time of entering the Agreement and an absence of independent legal advice, information and informed consent as justifying the setting aside of the Mediation Agreement and adjudicating on the current complaints.  

In the first instance, the Commission is not a court of competent jurisdiction to deal with the enforcement, or any alleged contravention, of the Mediation Agreement.

The crux of the cases cited by the complainant concern the matter of conclusion of a lawful and enforceable agreement to settle or compromise claims based on statute.  The complainant has extracted and relied upon considerations such as informed consent, meaningful negotiations and professional advice in support of her submissions that the Mediation Agreement should be set to one side or reviewed in my adjudication.  The Agreement in this case, with which the complainant takes issue and seeks to resile from, was concluded following a statutory mediation process.  Section 39(6) of the 2015 Act expressly provides that the terms of the resolution are binding on the partes.  Adjudication of the complaints before me would necessarily involve me reviewing the mediation process undertaken by a statutory office holder, including examining core values such as self-determination, voluntariness and informed consent in and around that statutory process.  I am not satisfied that I have jurisdiction to engage in such a review.  In consequence, I find that I do not have jurisdiction to set aside or review the terms of the Mediation Agreement concluded between the parties.

Furthermore, I am not satisfied that I can disregard section 39(7) and (8) of the 2015 Act in my adjudication of the complaints where the complaints concern the terms of a Mediation Agreement concluded under section 39 of the 2015 Act.

Accordingly, I find that I do not have jurisdiction to investigate the above-referenced complaints. 

CA-00057389-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057389-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057390-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057390-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057362-006 (Payment of Wages Act 1991)

A complaint for non-payment of salary for June 2023 was received by the Commission on 13 September 2023. 

The Commission requested clarification on material detail, omitted from the complaint received.

On 10 October 2023, the complainant clarified the following in relation to the complaint:-

Date payment should have been received:  3rd July

Amount of non-payment:  €2,184.00 for the month of June

Redress option:  Adjudication

Both parties agreed that this complaint was unrelated to the Mediation Agreement of March 2022.  It was on this basis that the respondent conceded the complaint at the hearing on 24 January 2023.

The complainant submitted on the second hearing date that she had signed up for pension onboarding in June 2023 and that the employer ought to have made a 25% contribution in respect of that month, which it did not do, and that this should be taken into account in deciding this complaint.

The respondent fully disputed this submission on the basis that pension contributions did not form part of the complainant’s complaint to the Commission and, without prejudice to the foregoing, pension contributions were to take effect from 1 July 2023 based on a 3% contribution.  The respondent’s concession of the complaint was based on the information provided by the complainant in respect of the complaint referred to the Commission on 13 September 2023 and it disputed submissions made at the hearing on 24 January 2024.

The complaint referred to the Commission concerned non-payment of salary for the month of June and the complainant clarified the amount of non-payment as €2,184.00.

Whilst the complainant had submitted emails relating to pension onboarding and an application form in documentation in support of her complaints, the first reference to a complaint of non-payment of pension contribution in June 2022 was at the hearing on 23 January 2024. 

The relevant time limits for referral of complaints of a contravention of the 1991 Act are set out in sections 41(6) and 41(8) of the Workplace Relations Act 2015 which provide:-

“(6)  Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was …

The complaint made by the complainant in relation to a 25% pension contribution was presented outside of the time limits set out in section 41 of the 2015 Act.   The respondent has conceded the complaint referred in respect of non-payment of salary of €2,184.00 for June 2023.  Accordingly I find this aspect of the complaint to be well-founded. 

I therefore find in accordance with section 6 of the 1991 Act that the complaint of a contravention of section 5 is in part well founded, and I direct the respondent pay to the complainant €2,184.00 in compensation.

CA-00057362-001 (Terms of Employment (Information) Act 1994)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057362-002 (Schedule 2 of the Protected Disclosures Act 2014)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057362-003 (Employment Equality Act 1998)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not discriminated against.

CA-00057362-004 (Employment Equality Act 1998)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not discriminated against.

CA-00057362-005 (Employment Equality Act 1998)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not victimised.

CA-00057388-001 (Parent’s Leave and Benefit Act 2019)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057388-002 (Maternity Protection Act 1994)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057389-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057389-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057390-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057390-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057463-001 (Unfair Dismissals Act 1977)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not unfairly dismissed.

CA-00057362-006 (Payment of Wages Act 1991)

I find that the complaint of a contravention of section 5 of the 1991 Act is in part well founded, and I direct the respondent pay to the complainant €2,184.00 in compensation.

Complaints referred for adjudication – Terms of a statutory Mediation Agreement – section 39 Workplace Relations Act 2015 – Preliminary issue

Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Self-represented

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00057362-001

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act 2014

CA-00057362-002

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00057362-003

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act 1998

CA-00057362-004

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00057362-005

27/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Parent’s Leave and Benefit Act 2019

CA-00057388-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act 1994

CA-00057388-002

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Parent’s Leave and Benefit Act 2019

CA-00057389-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act 1994

CA-00057389-002

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Parent’s Leave and Benefit Act 2019

CA-00057390-001

28/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 30 and 31 of the Maternity Protection Act 1994

CA-00057390-002

28/06/2023

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

CA-00057463-001

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00057362-006

13/09/2023

The complainant was employed with the respondent from 8 January 2018 until 3 July 2023.

The complainant submitted complaints under various pieces of legislation to the Commission on 27 June 2023, 28 June 2023, 3 July 2023 and 13 September 2023. 

There was a preliminary issue concerning my jurisdiction to hear the complaints, save for the complaint referred under the Payment of Wages Act 1991.  The preliminary issue related to a Mediation Agreement concluded between the parties on 24 March 2022 at the Workplace Relations Commission.

The complaint under the Payment of Wages Act, received 13 September 2023, concerned non-payment of salary to the complainant for June 2023.

At the hearing on 25 January 2024, the complainant withdrew 4 of the 13 complaints as they were duplicates of other complaints. 

The complainant submitted that the respondent was using the Mediation Agreement as a shield or a weapon to prevent the investigation of her complaints.  The respondent has done so many things that offend against employment law after the Mediation Agreement was concluded, and which have nothing to do with the Mediation Agreement.  Without hearing about the terms of the Mediation Agreement, the truth cannot be established.  The respondent has used the Mediation Agreement to hinder and disadvantage the complainant’s employment with the respondent.

The complainant submitted that the Mediation Agreement should be revisited and opened up because she had lacked representation in concluding the Agreement.  The respondent did not offer the complainant legal representation and she did not have the benefit of independent advice.  The complainant signed the Agreement without knowing the consequences, and that she would be prejudiced by signing. 

The complainant sought to engage with the respondent in May 2023 in relation to her return to work from leave.  The complainant was pushed into a corner whereby she was given the option of taking either unpaid leave or annual leave as the respondent was not able to facilitate her return to work on 1 June 2023.  The complainant was forced to take annual leave even though this was not suitable for her.  The respondent then engaged the complainant in an email exchange for the month of June 2023 while she was on annual leave.  The complainant was not paid for June 2023, but she was engaging fully with the respondent at this time.

The complainant submitted that signing the Mediation Agreement has breached her employment and equality rights.  The complainant cited case law in support of her submission that the terms of the Mediation Agreement should be reviewed in the context of these complaints.  The Agreement has disadvantaged the complainant because she cannot talk about it.

In relation to 12 of the 13 complaints lodged by the complainant with the Commission, there was a preliminary issue concerning a Mediation Agreement entered into by the parties in accordance with section 39 of the Workplace Relations Act 2015.   

The Mediation Agreement is binding on the parties and both parties are precluded from disclosing its terms in any proceedings, other than proceedings in respect of a contravention of the terms of the Agreement.  The current complaints concern either the terms of the Mediation Agreement or matters the subject of a previous WRC case which was compromised and settled between the parties.  The complainant cannot choose to breach the terms of the Mediation Agreement and open the Agreement to pursue these complaints before the Commission. 

It is clear from the complainant’s complaint forms that the complaints lodged with the Commission are of an alleged breach of the Mediation Agreement.   Any alleged contravention of the terms of the Mediation Agreement is not a matter for adjudication and is not a matter for the Commission as it is not a court of competent jurisdiction.

Both the complainant and respondent are legally bound by section 39(7) of the 2015 Act to keep the terms of the Mediation Agreement confidential and are precluded from disclosing its terms.  The complainant cannot choose to breach the terms of the Mediation Agreement to enable her to pursue the complaints currently before the Commission.  The respondent does not consent to the Mediation Agreement being published or discussed as per the confidentiality clause expressed in the Agreement.  The respondent is entitled to defend its position in line with its constitutional right to fair procedures and natural justice.

The respondent rejected the complainant’s assertions regarding the mediation process and the respondent’s actions subsequent to same.  The complainant entered the process and Mediation Agreement voluntarily.  The respondent has at all times abided by the terms of the Mediation Agreement.  The respondent is not engaging in covert behaviour in relation to the complainant or her employment.  It was in the process of the complainant’s return to work and the respondent seeking to give effect to the terms of the Mediation Agreement that issues arose.

The cases cited by the complainant do not relate to Mediation Agreements concluded under the Workplace Relations Act 2015.

CA-00057362-001, CA-00057362-002, CA-00057362-003, CA-00057362-004, CA-00057362-005, CA-00057388-001, CA-00057388-002, CA-00057463-001

Based on the submissions of the parties and the information before me, I informed the parties that I would deal with the matter of the complaints relating to a Mediation Agreement as a preliminary issue.

The respondent’s position is that these complaints concern the terms of a Mediation Agreement concluded between the parties on 26 March 2022 under the Workplace Relations Act 2015 (the “2015 Act”), and that I am precluded from hearing the complaints by reason of the terms of the Mediation Agreement and section 39 of the 2015 Act.

The complainant submitted that the respondent is using the Mediation Agreement to deter my investigation and adjudication of the complaints, that the Mediation Agreement was prejudicial to her and has been relied upon by the respondent to breach her rights.

The Mediation Agreement the subject of the preliminary issue is one that was concluded under section 39 of the 2015 Act.  Section 39 enables resolution of a complaint by way of mediation instead of adjudication.  It is apparent from the information before me that the complainant presented complaints to the Commission in October 2021 under section 41 of the 2015 Act, which complaints were referred to a Mediation Officer for resolution in accordance with section 39(1) of the 2015 Act.  A mediation meeting took place on 2 March 2022 in accordance with section 39(2) and (3) of the 2015 Act and a Mediation Agreement was concluded between the parties in resolution of the complainant’s complaints on 26 March 2022.  I am satisfied that that Agreement was in accordance with section 39(4) of the 2015 Act. 

The complaints bearing the above-referenced complaint numbers were presented by the complainant to the Commission under section 41 of the 2015 Act on dates in June and July 2023, and referred to me for adjudication.

I note the complainant’s submission on the first hearing date that it would be impossible to hear her complaints without opening the Mediation Agreement concluded in respect of her previous complaints.  The complainant subsequently submitted that the Mediation Agreement must be opened up to establish the truth.  The respondent asserted that it could not defend or respond to the complaints without opening the Mediation Agreement.  It is therefore common case that the terms of the Mediation Agreement and matters related to the mediation process have a bearing on the complaints before me. 

A fundamental principle of mediation generally and one that is reflected in section 39 of the 2015 Act is the confidentiality of the mediation process; this is not confined to the mediation agreement but extends to the mediation meeting, communications during the meeting, communications by a Mediation Officer with the parties and all records and notes also.   The respondent did not consent to publication of the Mediation Agreement or to disclosure of information furnished at mediation.

Section 39(7) and (8) of the 2015 Act provide:-

“(7) The terms of a resolution referred to in subsection (4) shall not be disclosed by a mediation officer or by either party to the complaint or dispute concerned in any proceedings before a court (other than proceedings in respect of the contravention of the terms of the resolution), or otherwise.

(8) All communications (including communications during a mediation conference) by a mediation officer with the parties to a complaint or dispute referred for resolution under this section to him or her and all records and notes, including records and notes relating to a mediation conference held for the purposes of resolving any matter to which the complaint or dispute concerned relates, shall be confidential and shall not be disclosed in any proceedings before a court (other than proceedings in respect of a contravention of the terms of a resolution referred to in subsection (4)), or otherwise.”

I have carefully reviewed the specific details of the complaints, the documentation and information before me.  I have also carefully considered the submissions of both parties in relation to the preliminary issue.  I am satisfied that the complaints before me concern the terms of the Mediation Agreement concluded by the parties and/or an alleged failure to implement the Mediation Agreement.   I am further satisfied that adjudication of the complaints would require reviewing the Mediation Agreement.

The complainant has referred in documentation before me to challenging the Mediation Agreement.  The complainant has submitted that the terms of the Mediation Agreement are disadvantageous to her, unfair and in breach of her employment rights.  The complainant further referred to stress at the time of entering the Agreement and an absence of independent legal advice, information and informed consent as justifying the setting aside of the Mediation Agreement and adjudicating on the current complaints.   

In the first instance, the Commission is not a court of competent jurisdiction to deal with the enforcement, or any alleged contravention, of the Mediation Agreement.

The crux of the cases cited by the complainant concern the matter of conclusion of a lawful and enforceable agreement to settle or compromise claims based on statute.  The complainant has extracted and relied upon considerations such as informed consent, meaningful negotiations and professional advice in support of her submissions that the Mediation Agreement should be set to one side or reviewed in my adjudication.  The Agreement in this case, with which the complainant takes issue and seeks to resile from, was concluded following a statutory mediation process.  Section 39(6) of the 2015 Act expressly provides that the terms of the resolution are binding on the partes.  Adjudication of the complaints before me would necessarily involve me reviewing the mediation process undertaken by a statutory office holder, including examining core values such as self-determination, voluntariness and informed consent in and around that statutory process.  I am not satisfied that I have jurisdiction to engage in such a review.  In consequence, I find that I do not have jurisdiction to set aside or review the terms of the Mediation Agreement concluded between the parties.

Furthermore, I am not satisfied that I can disregard section 39(7) and (8) of the 2015 Act in my adjudication of the complaints where the complaints concern the terms of a Mediation Agreement concluded under section 39 of the 2015 Act.

Accordingly, I find that I do not have jurisdiction to investigate the above-referenced complaints. 

CA-00057389-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057389-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057390-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057390-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057362-006 (Payment of Wages Act 1991)

A complaint for non-payment of salary for June 2023 was received by the Commission on 13 September 2023. 

The Commission requested clarification on material detail, omitted from the complaint received.

On 10 October 2023, the complainant clarified the following in relation to the complaint:-

Date payment should have been received:  3rd July

Amount of non-payment:  €2,184.00 for the month of June

Redress option:  Adjudication

Both parties agreed that this complaint was unrelated to the Mediation Agreement of March 2022.  It was on this basis that the respondent conceded the complaint at the hearing on 24 January 2023.

The complainant submitted on the second hearing date that she had signed up for pension onboarding in June 2023 and that the employer ought to have made a 25% contribution in respect of that month, which it did not do, and that this should be taken into account in deciding this complaint.

The respondent fully disputed this submission on the basis that pension contributions did not form part of the complainant’s complaint to the Commission and, without prejudice to the foregoing, pension contributions were to take effect from 1 July 2023 based on a 3% contribution.  The respondent’s concession of the complaint was based on the information provided by the complainant in respect of the complaint referred to the Commission on 13 September 2023 and it disputed submissions made at the hearing on 24 January 2024.

The complaint referred to the Commission concerned non-payment of salary for the month of June and the complainant clarified the amount of non-payment as €2,184.00.

Whilst the complainant had submitted emails relating to pension onboarding and an application form in documentation in support of her complaints, the first reference to a complaint of non-payment of pension contribution in June 2022 was at the hearing on 23 January 2024. 

The relevant time limits for referral of complaints of a contravention of the 1991 Act are set out in sections 41(6) and 41(8) of the Workplace Relations Act 2015 which provide:-

“(6)  Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was …

The complaint made by the complainant in relation to a 25% pension contribution was presented outside of the time limits set out in section 41 of the 2015 Act.   The respondent has conceded the complaint referred in respect of non-payment of salary of €2,143.00 for June 2023.  Accordingly I find this aspect of the complaint to be well-founded. 

I therefore find in accordance with section 6 of the 1991 Act that the complaint of a contravention of section 5 is in part well founded, and I direct the respondent pay to the complainant €2,143.00 in compensation.

CA-00057362-001 (Terms of Employment (Information) Act 1994)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057362-002 (Schedule 2 of the Protected Disclosures Act 2014)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057362-003 (Employment Equality Act 1998)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not discriminated against.

CA-00057362-004 (Employment Equality Act 1998)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not discriminated against.

CA-00057362-005 (Employment Equality Act 1998)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not victimised.

CA-00057388-001 (Parent’s Leave and Benefit Act 2019)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057388-002 (Maternity Protection Act 1994)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that this complaint is not well founded.

CA-00057389-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057389-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057390-001 (Parent’s Leave and Benefit Act 2019)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-001.

CA-00057390-002 (Maternity Protection Act 1994)

The complainant withdrew this complaint at the hearing on 23 January 2024 as it was a duplicate of CA-00057388-002.

CA-00057463-001 (Unfair Dismissals Act 1977)

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.  In those circumstances, my decision is that the complainant was not unfairly dismissed.

CA-00057362-006 (Payment of Wages Act 1991)

I find that the complaint of a contravention of section 5 of the 1991 Act is in part well founded, and I direct the respondent pay to the complainant €2,143.00 in compensation.

Complaints referred for adjudication – Terms of a statutory Mediation Agreement – section 39 Workplace Relations Act 2015 – Preliminary issue