Complainant

Respondent

Parties

Derek  Darbey

St Patricks Hospital

Act

Complaint Reference No.

Date of Receipt

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

CA-00060259-001

27/11/2023

Derek Darbey commenced employment with St. Patrick’s University Hospital on January 9th, 2012, and continued in employment until July 1st, 2023, a total of eleven and a half years on a permanent, full-time contract of employment.

He initially held the post of Assistant Household Services Manager before being promoted to Household Services Manager and later to Facilities Services Manager for the remaining three years of his employment.

He was made redundant and remained an employee on the payroll until July 1st, 2023.

He was on certified sick leave from the November 24th, 2022, until February 20th, 2023, when he returned to work.

Duringthenegotiationperiodforthe redundancyagreement,he says he wasgivenassurancesbytheHRDirectorthathis salary would not be affected and all other entitlements including increments,holidaysetc.wouldnotbenegativelyimpactedbythe proposed redundancy.

He signedtheredundancyagreement on May 26th, 2023.

During this time the H.R. Director was in the process of going to the Board for approval to implement a pay increase which was never mentioned to him during the discussions.

On June 19th, a memo titled “Pay Adjustments June 2023” was issued to “All Staff” advising of a review of current rates of pay and had approved increases as follows: 3.5% from January 1st, 2023, 2% from March 1st, 2023, and 1% from October 2023.

For the first two of these periods the complainant had still been in employment. The increases in respect of January and March for those on monthly payroll would be applied on June 23rd, 2023. The complainant did not receive these increases.

He only became aware of this email on June 22nd, 2023, and wrote to the Director of HR on June 30th while still an employee requesting the salary increase that was being given to all employees be applied to his wages. On July 26th, 2023, the respondent refused to do so. He says this constitutes an unlawful deduction by the respondent.

The severance agreement was signed in good faith with no suggestion of pending pay talk resolution.

The complainant says that while hesignedawayrightstocertainfuture claims this current referral to the WRC doesnotconstituteaclaim,butratheraneffortto ‘ensure my entitlements as an employee is in line with that of other St Patrick’s Hospital employees’ right up until he ceased employment, as he was assured it wouldbe.

He could not have reasonably foreseen impending salary increases at the time he signed the contractual agreement on June 19th when the "All Staff" memo was issued, and when he was still employed by the organisation.

The decision to not treat him as other employees amounts to discrimination

St Patrick’s Mental Health Services (SPMHS) rejects the claim made by Mr. Darbey on the basis that he signed a Compromise Agreement with SPMHS, with May 26th, 2023, being the date of execution of the Agreement.

Clause 2 of that Agreement provides.

 ‘Mr. Darbey confirms thathe has obtained appropriateindependentadvicepriortosigningthisagreement. Mr. Darbey confirmed that he understands the effect and implications of this agreement and every part thereof. Mr. Darbey further confirms that he has entered into this agreement without any coercion.’

Clause 7 of the Agreement states.

 ‘It is understood that should Mr. Darbey subsequentlyraiseacauseofactionagainsttheorganisationrelatingtothe terminationofhiscontractofemployment;theorganisationwillrelyonthe termsofthisagreement,todefendanysuchclaim.’

Clause 8 of the Agreement states.

 ‘ItisagreedandacceptedbyMr.Darbey thatthe Terms ofthis Compromise Agreementconstitutes full and final settlementofanyandallclaimshoweverarisingfromtheterminationofMr. Darbey’scontractofemploymentbyreasonofredundancy,specificallybutnot limitedtoclaimsundertheUnfairDismissalsActs;TheMinimumNoticeand Terms of Employment Acts; the Organisation of Working Time Act; the Paymentof Wages Act; the Employment Equality Act; the Data Protection Acts; the Safety, Health and Welfare at Work Acts; the Statute of Limitations 1957 and any and all civillitigationincludinganyclaimsforpersonalinjury’.

In addition to statutory redundancy Mr. Darbey was in receipt of a substantive ex gratia payment of (gross) €46,951 and received payment in lieu of notice of (gross) €17,784 and untaken annual leave/Public Holidays of (gross) €9,849. All sums outlined in the Compromise Agreement were paid in full and no deductions as provided for in Section 5 of the Payment of Wages Act 1991 were made.

ThedateofexecutionoftheCompromiseAgreementissignificant.The complainantmayseekto give the impression that at the time of the signing of the Compromise Agreement, SPMHS knew definitivelythatpayincreasesweretobeimplementedandthattherewassomehowa deliberatenesstotheactionsoftheorganisation.

This is not correct. The SPMHS Board of Governors did not sit until early June and no pay increases couldbeorcanbeappliedwithoutapprovaloftheBoard.Untilsuchtimeasapprovalofthe Boardisobtainedintheareaswhereitisrequired,ExecutiveManagementcannotmakeany assumptions.

Mr. Darbey is now seeking to renege on the terms of the Compromise Agreement, which was concludedbytheorganisationinfullandfinalsettlement, andingoodfaith.

In conclusion it is the position of the respondent that a Compromise Agreement was signed, following appropriate advice, by Mr. Darbey in full and final settlement of any claims arising. It is further the position of the organisation that there was no breach of Section 5 or Section 6 of the Payment of Wages Act and that he received all payment owing to him under the Compromise Agreement.

There was no attempt on the part of SPMHS to withhold or deduct any monies that Mr. Darbey was due.

The facts are set out above and are not in dispute.

The complainant‘s grievance is that he was not advised of developments, or possible developments in relation to salary levels in his employment that had a bearing on his final pay for the purposes of calculating his redundancy and that the failure of the respondent to do so now allows him to renege on the compromise agreement referred to in the respondent’s submission.

The complainant confirmed that he had been given the opportunity to take professional advice and it is clear that he entered into the agreement on the basis of fully informed consent when he signed the agreement on May 26th, 2023. 

The decision regarding the pay revisions was published on June 19th and the complainant says he was not included in the staff circular in question.

He implies two things; the first is that the respondent had a process in train regarding the pay negotiations of which it did not make him aware, and, as a consequence had he known this would have led to an improved outcome for him in his negotiations.

The first of these implications is rejected by the respondent, although somewhat disingenuously, on the basis that the Board only approved the increases after the agreement was signed. The complainant’s grievance is that he should have been told the increase was ‘in the pipeline’.

It is safe to assume that a process of negotiation had been going on for some time before it was eventually approved.

The second implication and the complainant’s case that even an imminent pay increase would have been included in the calculation of his salary the best part of a month before it was approved is somewhat speculative, as the respondent has pointed out above.

In any event, both are rendered irrelevant by the terms of the compromise agreement, in particular paragraphs 7 and 8 referred to above in the respondent’s submission.

In Starrus Eco Holdings Limited t/a Greenstar and Gerald O’Reilly, UDD1868 (December 2018) the Complainant in that case brought a claim under the Unfair Dismissals Acts after having signed an agreement that appears to have been almost identical to that executed by the complainant in this case.

In Daly v Home Fare Services KSG, ADJ-00012871 the Complainant in that case had also sought to pursue a claim for unfair dismissal after having signed a waiver. The Adjudication Officer determined that.

 “The severance agreement as signed by the parties compromises any claim that Complainant has under the Unfair Dismissals Acts.”

In the case of An Engineer v Retail, ADJ-00012963 that complainant was made redundant. He signed a full and final settlement agreement and had been advised by the respondent to seek his own independent legal advice.

It was held in that case that the settlement agreement clearly set out what rights the complainant was waiving under employment protection legislation and that he was given time to seek his own legal advice, and determined that the complaint was not well founded as the complainant was party to a settlement agreement which was signed by both parties.

In Healy v Irish Life Assurance plc, DEC-E2015-002 Mr. Healy issued High Court Proceedings against his employer in 2000.

He subsequently attended settlement talks at which a full and final settlement was reached, documented, and signed by all parties. Mr. Healy then made a complaint under the Employment Equality Acts stating that he was not aware what was going on at the talks and that he was rushed into making a decision.

The Adjudication Officer determined that the settlement agreement signed between the parties stated that it was full and final and noted that Mr. Healy could not ignore the obligations placed on him by signing the agreement and decided that he did not have jurisdiction to hear the case.

The Adjudication Officer referred to the Supreme Court’s decision in Doran v Thompson, [1978] IR 223. As the Adjudication Officer noted, the Court held in that case that:

“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it [is] well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and the[n] he may be restrained in equity from acting inconsistently with such promise or assurance.”

Having referred to the Doran decision, the Adjudication Officer in Healy went on to find that:

“Full and final means just that, it is full and final.”

It is, of course, understood that an employee’s consent must be informed in that he understands what he is agreeing when he signs a waiver or settlement agreement.

In the well-known case of Hurley v Royal Cork Yacht Club, [1977] ELR 225, Buckley J.in the Circuit Court considered a waiver clause in an agreement in the context of the Unfair Dismissals Acts and stated that:

“I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights….”

The implications of these cases for the complainant and the line of legal authority they represent could hardly be clearer.

His attempt to construe this complaint made under the Payment of Wages Act, as not really being a complaint is absurd.

I can only repeat the obvious truism set out above which is that “full and final means just that, it is full and final.”

For these reasons complaint CA-00060259-001 is not well founded.

For the reasons set out above reasons complaint CA-00060259-001 is not well founded.

Compromise Agreement