Complainant

Respondent

Parties

Sejal  Tandel

Accenture Limited

Representatives

Self-represented

Lewis Silkin Ireland

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-00058861-001

16/09/2023

The complainant was employed with the respondent as platform experience new associate from 6 December 2021 until her employment terminated on 15 June 2023.

The complainant entered into a severance agreement with the respondent following notice of termination of her employment by reason of redundancy.

The complainant has referred to the Workplace Relations Commission a claim of unfair dismissal under the Unfair Dismissals Act 1977.

The respondent made payments to the complainant in accordance with the terms of the severance agreement, which included payment for statutory entitlements, an ex-gratia amount and a sum of money towards obtaining legal advice.

It was submitted that the WRC has no jurisdiction to hear the claim in circumstances where the complainant legally waived her right to bring such a claim by entering the severance agreement, accepting the ex-gratia payment, and availing of other ex-gratia benefits.

Shortly after the complainant’s employment terminated, the complainant contacted the respondent and requested she be reinstated due to the severe impact the redeployment and redundancy process had on her health.  The complainant decided to refer the unfair dismissal claim to the WRC because of the response she received from the respondent.  The complainant submitted that had the respondent responded to her request with a solution and with compassion for her personal circumstances, she would not have needed to take action.

The complainant had entered the severance agreement as a means of sustaining herself financially in Dublin.  It was not accepted that signing the Agreement waived her right to address concerns in relation to the redeployment process, the selection method and other employment related matters.  The complainant submitted she executed the Agreement due to the absence of any internal opportunities at that juncture and that her primary motivation was to safeguard her financial stability.

The complainant was employed with the respondent from 6 December 2021.

On 21 February 2023, the complainant and all staff on the complainant’s team were notified that due to a reduction in client demand, they would be moved into redeployment pending any other available opportunities.  The complainant attended weekly meetings from 23 February with the respondent’s HR team to explore redeployment opportunities.   On 23 March 2023, 400 roles in the respondent organisation were placed in scope for collective consultation as part of a collective redundancy process due to a downturn in work; the complainant’s role was included in this number.  An Employee Consultation Forum was established, in which there were seven elected employees from the business in which the complainant worked. There were 56 roles at risk of redundancy on the complainant’s team.   A number of collective consultation meetings took place during April and May 2023.    Matters discussed included the ex-gratia package for employees who, like the complainant, had less than 2 years’ service.  The respondent’s initial offer was increased as a result of consultation and was subject to execution of a severance agreement which included a waiver and release of any claims against the respondent arising from employment or its termination. 

The collective consultation process closed in mid-May 2023 and individual consultation commenced.   The complainant met with a member of HR on 25 May 2023.  The complainant was given one month’s notice of dismissal.   A severance letter dated 23 May 2023 was reviewed in detail with the complainant and she was advised that the package included a contribution towards advice that she might seek.  The complainant was given over 2 weeks to consider the terms of the severance agreement.  Efforts to redeploy the complainant continued in the meantime.

The severance agreement provided for the complainant’s notice entitlement and an ex-gratia payment of €4,352.00, which included €250.00 towards legal advice and €102 in lieu of VHI cover.  The agreement also included an opportunity for the complainant to avail of a 3-month outplacement service, funded by the respondent.

The complainant signed the severance agreement on 5 June 2023.  

Various clauses which were considered key by the respondent were opened at the hearing.  The Agreement included a provision that the complainant could seek independent legal advice on the content of the severance letter, the implications of the conditions set out therein and the terms of the ex-gratia payment.  The complainant was paid a sum of money towards seeking external advice.

It was submitted that it was very clear from the severance agreement that the payments and benefits granted to the complainant were conditional on her agreement not to submit a claim to the Workplace Relations Commission (the “WRC”) in respect of her employment or the termination thereof.

The WRC has no jurisdiction to hear the complainant’s complaint as the complainant waived her right to bring such a complaint by entering into the severance agreement and accepting the ex-gratia payments and benefits offered.  The complainant’s complaint should be dismissed.

The respondent cited various cases on compromise agreements and the waiver of statutory rights in the employment setting.

Sworn evidence of the Employee Relations Manager

The witness has worked with the respondent since 2022.

In March 2023, the respondent notified employees of a significant reduction in client demand which put a large number of employees at risk of redundancy.

Information was provided, in tandem with the respondent’s legal section, so that HR leads would be prepared for ensuring compliance with best practice in the consultation process.  The respondent put in place dedicated information resources for employees, including a designated webpage with information.  There were 4 meetings scheduled to take place with employee representatives during the collective consultation process; 6 meetings in fact took place at the collective stage.   Every meeting was documented and recorded, and all notes were put on the webpage for employees to review.  During the collective consultation process, the position of those employees who did not have the service to be entitled to a statutory redundancy payment was highlighted and an ex-gratia offer was increased.  Payment of the ex-gratia amount was contingent on entering a severance agreement.  Individual meetings took place on conclusion of the collective process.

I have considered the evidence adduced at the hearing and the submissions of both the complainant and the respondent.  I have also had regard to the case law cited by the respondent.

Material to the adjudication of the claim referred is the position in relation to the Severance Agreement, executed by the complainant following notice of termination of her employment with the respondent on grounds of redundancy.

The complainant did not qualify for a statutory redundancy payment.  An ex-gratia payment was offered conditional on the complainant entering into the Severance Agreement.

The material facts in relation to the parties entering into the Severance Agreement are as follows.  The complainant was notified on 21 February 2023 that she was being moved into redeployment due to a reduction in client demand and pending any other available opportunities.  There followed a collective redundancy process to which the respondent assigned dedicated information and consultation resources due to the numbers impacted.  By correspondence dated 23 May 2023, the complainant was informed that her employment would terminate by reason of redundancy on 15 June 2023.  The correspondence dated 23 May 2023 provided details of the termination payments and the terms of the Severance Agreement.  The complainant was informed that the ex-gratia payment was conditional on the complainant entering into the Severance Agreement.  An individual consultation meeting took place on 25 May 2023 between the complainant and a member of the respondent’s HR team.  At this meeting, the Severance Agreement was reviewed with the complainant and the complainant was informed of next steps.  The complainant had until 9 June 2023 to notify HR of her acceptance or otherwise of the ex-gratia offer and the terms of the Agreement.  A second consultation meeting scheduled for 30 May 2023 was cancelled by the complainant as queries raised by her had been addressed by email in the meantime.

The complainant executed the Agreement on 5 June 2023.  I note the complainant did not contact anyone in the respondent organisation after signing the agreement and that she remained in employment until 15 June 2023.

The complainant received all payments detailed in the Severance Agreement, including the ex-gratia payment, and availed of the outplacement service benefit with a third party, which was at a cost to the respondent of €1,955.00.  The payments received by the complainant included a sum of money towards the complainant obtaining external advice on the Severance Agreement.  

The Severance Agreement expressly provided for the complainant’s agreement that the payments and benefits under the Agreement were paid in full and final settlement of the complainant’s prospective entitlement to bring a claim against the respondent to the Workplace Relations Commission and that the complainant waived, released and discharged the respondent from any claims arising from or connected with her employment with the respondent and the termination of her employment.   

The complainant did not assert that she was put under any pressure by the respondent to sign the document.  The complainant received a sum of money for the purpose of obtaining advice.   The complainant’s evidence was that she did not think of getting legal advice at the time as she was sure she would get another job; at the time her sole focus was on getting another role internally.  Under cross-examination, the complainant agreed that at the meeting of 25 May 2023, the HR employee explained to the complainant the consequences of accepting the ex-gratia payment offered as a payment in full and final settlement of any claims arising from the complainant’s employment or termination thereof.  The complainant accepted that she knew by signing the Agreement, she was waiving the entitlement to bring a claim against the respondent.  The complainant acknowledged a breach of the Agreement in bringing the claim to the WRC.

It is permissible for an employee to make an informed waiver of their statutory rights.  It is clear from the case-law on severance agreements and waiver of statutory rights in the employment context that there must be informed consent on the part of the employee to compromise and waive statutory rights.  This involves an employee being informed of the position regarding statutory entitlements and being advised in writing to take appropriate advice.

It is clear from the terms of the Severance Agreement that it related to the termination of the complainant’s employment with the respondent and provided for payments in full and final settlement, waiver, release and discharge of all claims and rights of action howsoever arising, including the complainant’s entitlement to bring a claim to the Workplace Relations Commission.  The waiver was explained to the complainant by a member of HR and expressly provided for in writing.  The complainant cancelled a second consultation meeting as her queries on the Agreement had been addressed.  I am satisfied on the complainant’s own account that she understood the meaning of the restrictions on her by entering into the Severance Agreement, namely that she would have no recourse in the future to bring a claim against the respondent to the Workplace Relations Commission in respect of her employment with the respondent or its termination.   The complainant was paid a sum of money for the purpose of obtaining advice on the Agreement, advised in writing, and provided with an opportunity to take such advice.  The complainant did not take advice because she was focused on securing another role with the respondent. It appears that the complainant became aggrieved after her employment ended when she was unsuccessful in obtaining another role and with the respondent’s response to her request that she be reinstated. 

On the evidence before me and the submissions of the parties, I am satisfied the complainant signed the Severance Agreement on 5 June 2023 in full knowledge of its implications, and in particular that by accepting the ex-gratia amounts and benefit, she waived her right to bring a claim to the Workplace Relation Commission.   

For the reasons set out above, I find that I do not have jurisdiction to hear the unfair dismissal claim referred to the Workplace Relations Commission by the complainant and, on that basis, my decision is to dismiss the claim.

For the reasons set out above, I find that I do not have jurisdiction to hear this claim.

Accordingly, my decision is to dismiss the claim.

Unfair dismissal – Severance Agreement – Waiver of statutory rights