Complainant

Respondent

Parties

Luca  Avalle

Sysdig Limited

Complainant

Respondent

Anonymised Parties

Representatives

Mark Curran BL                                     Jessica Bielenberg Solr.,                                 Mason Hayes & Curran LLP

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-00059857-001

07/11/2023

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 7th of November 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 relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with some supplemental documentary evidence in support of the Complainant’s case. These documents were also shared with the Respondent. No objection was raised to any of the materials relied upon by the Complainant in making his case.

The Complainant alleges that he was Unfairly Dismissed in circumstances where, having been advised that his role was being made redundant the Complainant discovered that his exact job was being advertised at a significantly reduced salary within days of his redundancy coming into being.

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. 

The Respondent had legal representation at this hearing. The Respondent provided me with a comprehensive written submissions dated the 9th of April 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent has reserved its position on the issue of the substantive claim of Unfair Dismissal. The Respondent asserts that the Complainant knowingly and willingly entered into  a financially rewarding severance agreement which precludes the Complainant from seeking relief under the Unfair Dismissals legislation.

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.

I have acquiesced to the Respondent’s request that I deal with a preliminary issue herein.

The Complainant was employed by the Respondent from 21st June 2021 until 17th August 2023 when he was advised that his employment was terminating by reason of redundancy.  As part of this redundancy process, the Claimant signed a severance agreement which purported to be in full and final settlement of all claims arising out of his employment to include a claim under the Unfair Dismissals Acts 1977-2015.

I have seen a copy of the Severance agreement which was completed on the 5th of September 2023. I note that when signing the Severance Agreement, the Complainant was paid his Statutory Redundancy, his Contractual Notice as well as an Ex-Gratia payment of €21,800.00. The full sum came up to a sum in excess of €50,000.00. It is crucial to the Respondent’ s preliminary point that I note that the in signing the agreement the Complainant unequivocally waived his right to bring any further claims against the Respondent Employer under the Unfair Dismissals legislation (as one of many pieces of legislation listed in clause 3.2.

The Claimant does not deny signing the severance agreement. The Respondent asserts that there therefore, exists between the parties a lawful agreement which precludes the Claimant from bringing this claim.  The Respondent further submits:-

“..that this is such a fundamental issue not just in this case but in the overall context of the use of severance agreements in employment law that before proceeding with the substantive hearing on this matter, the Adjudication Officer should rule on this preliminary issue.”

In the circumstances I have agreed to deal with the Preliminary issue before directing whether or not it will be necessary to hear the substantive issue. I accept the Respondent’s argument  that:

“In the index proceedings, there would be a considerable saving in both time and expense as the valuable resources of the WRC would not be wasted on an unnecessary substantive hearing and, furthermore, the preliminary issue raised by the Respondent is purely a legal question and no evidence or further information is required to determine same.”

In the circumstances I am simply looking at the Severance agreement and whether its existence precludes me from proceeding to hear a claim under the Unfair Dismissal legislation.

I understand that the Claimant was informed that his role was at risk of redundancy on 25 July 2023. Following a comprehensive redundancy process, the Claimant was notified, on 17 August 2023, that his role was being made redundant. This was confirmed via a letter on the same day. A severance agreement was sent to the Claimant on 29 August 2023.  Clause 3.1 of the severance agreement sets out very clearly that the sums to be paid are in full and final settlement of all claims:

“In consideration of your agreement to the terms and conditions hereof and in full and final settlement, satisfaction, release and discharge of any and all claims, actions or causes of action, suits, complaints, liabilities, agreements, promises, debts or damages, whether existing or contingent, known or unknown, and whether arising under statute, contract, common law (including personal injury), equity or otherwise arising out of your employment with the Company or the termination thereof as you may have against the Group, their directors, employees, officers, representatives, agents, successors, shareholders and assigns..etc.”

As previously noted, the severance agreement confirms that the above waiver is inclusive of entitlements under the Unfair Dismissals Acts 1977 to 2015.

It is significant to note that the severance agreement states that:

“You acknowledge that you have taken legal advice from Domhnall Ó Scanaill Solicitor of Ó Scanaill & Co., Columba House, Airside, Swords, County Dublin on and understand the effect and implications of this agreement and every part thereof. You further acknowledge that you have entered into this agreement without any coercion of any description.”

The severance agreement provides that that the Respondent would pay €500 (plus VAT) as a contribution towards the Claimant’s Employee’s legal fees in respect of advice obtained “concerning the execution of the severance agreement”.

The Respondent has highlighted Clause 18 of the severance agreement which provides that all disputes between the parties arising out of or in any way related to the severance agreement:

“shall be governed by the laws of Ireland and subject to the exclusive jurisdiction of the Irish Courts”.

I understand that once the Respondent received the severance agreement signed by the Claimant from the Claimant’s solicitor on 5 September 2023, the ex-gratia amount of €21,855.80 gross was paid to him as provided in the severance agreement, as were the sums detailed for statutory redundancy, payment in lieu of notice and payment in respect of accrued but unused annual leave. Also received on 5 September 2023 was an invoice for the Claimant’s solicitor’s fees which the Respondent duly discharged.

The Respondent submits that there, therefore, exists a legally binding and valid severance agreement between the parties in which the Complainant has (lawfully- per the Respondent) waived his right to pursue a claim under the Unfair Dismissals Act 1977-2015. Should the Claimant wish to enforce and/or challenge the terms of the severance agreement, the Civil Courts rather than the WRC are the appropriate and proper body to deal with same. The Complainant can sue on foot of the Contract entered into. 

As I understand it, the Complainant became aware of a job vacancy (within the Respondent company) being published within 24 hours of the signing of the Severance Agreement.  The Complainant produced the said advertisement in the course of the hearing which he says is identical to his job title, specifications, terms and conditions. In effect, he says his job was advertised once he was perceived to be off the pitch.

On the face of it, it is understandable that the Complainant believed that this development completely undermined the Respondent’s contention that he had been terminated by reason of a legitimate redundancy situation. It was certainly this event that made the Complainant question whether or not the Respondent had terminated him for nefarious reasons. In the circumstances this was what brought about the issuing of the within workplace relations complaint form. In ordinary circumstances this would be a not unusual starting point for a claim being brought before the Adjudication Service. By way of an aside, I note that the Respondent deny the role advertised was the Complainant’s as it was intended for an entirely different outpost of this international company.

In any event all that I am being asked to do at this point in time is to consider the impact that the fully signed severance agreement has on the Complainant’s ability to prosecute such a claim have already waived his entitlement to bring such a claim.

 The Respondent argues:

“It is well established that statutory rights may be waived provided there is informed consent on the part of the employee. Severance agreements note an equitable position – that in return for the employer paying an ex-gratia payment over and above the employee’s statutory and contractual rights, the employee agrees to waive their right to bring such claims. In this case, the Claimant received an ex-gratia payment of €21,855.80 gross. As the Respondent paid an ex-gratia amount which the Claimant retains and has never offered to return, there exists a valid and legally binding agreement between the parties.”

The leading authority in relation to agreements which compromise employment statutory rights is Sunday World Newspapers Limited v. Kinsella and Another [2007] IEHC 324. In that case, former employees who had entered into severance agreements sought to pursue complaints under the Protection of Employees (Fixed-Term Work) Act 2003, arguing that a waiver of their rights under the Act was void. In the High Court, Smyth J. confirmed that an employee could in fact enter into an agreement in relation to his or her statutory rights. He held that the question of whether or not such rights had been compromised was a matter for the proper construction of the agreement itself. He also adopted Hurley v. Royal Yacht Club [1997] ELR 225 which considered the circumstances where claims can be legitimately compromised and applied a two-factor test:

(a)    that the claimant be advised of their legal entitlements and that any compromise agreement list the enactments applicable thereto;

and

(b)    that the employee be advised in writing that he/she should take appropriate (legal) advice.

Further, in Starrus Eco Holdings Limited t/a Greenstar v. Gerald O’Reilly, UDD1868, the Labour Court concluded that it did:

 “not have jurisdiction to go behind the waiver agreement entered into by the Parties.”

The Respondent submits that both tests are made out in this case, and consequently the WRC has no jurisdiction to hear the Claimant’s unfair dismissals complaint, as he has legally waived his right to bring such a claim in signing the severance agreement and accepting the ex-gratia payment offered.

In the more recent case of Robert Talbot v Twitter International Unlimited Company ADJ-047734 (2023)  the Adjudicator considered a severance agreement drafted in nearly identical terms to the current applicable severance agreement and stated:

“It is accepted that statutory rights may be waived provided there is informed consent on the part of the employee. This requires an examination of the facts of the case and the application of the relevant tests, established in the caselaw. If the Complainant has waived his statutory rights in signing the Severance Agreement, then I have no jurisdiction to hear this complaint…. I am satisfied that as a matter of construction, the Severance Agreement was intended as full and final settlement of any claim arising from the Parties’ employment relationship…. I must also be satisfied that the Complainant gave his informed consent. Under clause 14 of the Severance Agreement the Complainant confirms that he has taken legal advice and understands and accepts the terms of the Severance Agreement… Having considered the totality of the evidence adduced in relation to this first preliminary matter, I am satisfied that the Complainant signed the Severance Agreement with the benefit of informed consent. Therefore, I do not have jurisdiction to hear this complaint.”

The Respondent submits that the enforceability and waiver of the severance agreement in the proceedings before me is even stronger than the position in Talbot given that in Talbot the Claimant had not received independent legal advice prior to signing the severance agreement whereas in the current proceedings the Claimant has received independent legal advice which was funded in part by the Respondent to ensure that he Complainant was aware of the full implication of signing the agreement.

I am satisfied and in following the decision in Robert Talbot v Twitter International Unlimited Company ADJ-047734 (2023)  that the Complainant gave his informed consent to a waiving of his rights under the various pieces of legislation included in the severance agreement and most notably the Unfair Dismissals Acts.

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

CA-00059857-001  - I am satisfied that the Complainant signed the Severance Agreement with the benefit of informed consent. Therefore, I do not have jurisdiction to hear this complaint.