Complainant

Respondent

Parties

Donna  Kenneally

Newtown Business Support Services trading as Outsource Support

Representatives

Self-Represented

Ms. Anna Rosa Raso, ESA Consultants

Act

Complaint Reference No.

Date of Receipt

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

CA-00056573-002

08/05/2023

The Complainant commenced employment with the Respondent on 15th September 2022. At all relevant times the Complainant’s role was described as that of “cleaner”. The Complainant’s employment terminated on 27th April 2023.

On 8th May 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent had discriminated against her on the grounds of disability.

A hearing in relation to this matter was initially convened for 2nd February 2024. At the outset of this hearing, the parties indicated that they had reached an agreement in relation to the complaints as referred by the Complainant. Following confirmation of the same, the Complainant requested that the matter be subject to a short adjournment to allow for the implementation of the provisionally agreed terms. Following the grant of this application, the Complainant corresponded with the Commission stating that the matter had not in fact been settled and requested that the same be reconvened for hearing.

Said hearing was convened for, and finalised on, 28th May 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Prior to the hearing, the Respondent raised a preliminary point as to jurisdiction. As this issue may be determinative of the entire set of proceedings, it was considered in advance of the substantive matter.  

At the outset of the hearing, the Respondent submitted that the Complainant had entered into a legally binding agreement in respect of all claims arising, and that she is effectively estopped from continuing with the instant complaint.

In this regard, the Respondent referred to a document entitled “settlement agreement”. They submitted that this document provides that all complaints were to be deemed withdrawn on receipt of a payment by the Respondent. In this regard, the submitted that the payment had been made in accordance with the agreement, and that the matter should be deemed to be withdrawn. In addition to the foregoing, the Respondent submitted that the had willingly accepted the payment as offered, and had not returned the same.

In response, the Complainant accepted that she had signed and executed the agreement as opened by the Respondent. Nonetheless, she submitted that in the weeks following the initial hearing, she formed the view that the payment issued by the Respondent was insufficient in respect of the alleged wrong-doing perpetrated. In consideration of the same, the Complainant requested that the matter proceed to hearing.

In answer to a question posed by the Adjudicator, the Complainant stated that this draft settlement agreement was emailed to her following the hearing for her review. She accepted that the same provided for the seeking of legal advice, and confirmed that she sought advice from a specialist body in relation to the same. She stated that following the receipt of this advice she signed the agreement and returned the same to the Respondent for execution.

In the present case, the Respondent has submitted that prior to the initial hearing of the matter, they and the Complainant came to a provisional agreement in respect of the complaint as referred. In the days following this hearing, the matter was formalised by way of settlement agreement that was duly signed and executed by both parties on 6th February 2024. On foot of the same, they submit that the Complainant is essentially estopped from continuing with the present complaint, and that the matter should be deemed to be finalised. In the alternative, the Complainant accepted that she signed and executed the settlement agreement, but thereafter formed the view that the payment provided by the same was insufficient in respect of the alleged wrong-doing perpetrated.

The efficacy of such settlement agreements has been the subject of numerous decisions from this forum, the Labour Court and the Superior Courts. In the matter of Donal Hurley v Royal Yacht Club[1997] ELR 225 Buckley J, in the Circuit Court, considered if an agreement signed by the claimant accepting certain payments in full and final discharge of all claims precluded him from pursuing a claim for unfair dismissal against the Respondent under the Unfair Dismissals Acts.

In this regard, Section 13 of that Act provides that,

“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act”

In consideration of the same, the Judge held that,

“In several areas of the law the Supreme Court has held that any consent by a person to waive a legal right which that person has, must be an informed consent. This doctrine must surely apply to contracting out provisions and to section 13 in particular.”

And,

“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 applicant. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in his case would have been legal advice. In the absence of such advice I find the agreement to be void”

In the High Court matter of Sunday Newspapers ltd v Kinsella and Bradley [2008] 19 ELR 53,Smyth J held that,

“An employee being offered a severance package was entitled to be advised of his entitlements under the employment protection legislation and any agreement or compromise should list the various applicable statutes or at least make it clear that same had been considered by the employee. In addition, the employee should have been advised in writing to seek appropriate advice as to his rights. In the absence of such advice, a severance agreement waiving the statutory rights of the employee would be void Hurley applied.”

In the matter of Irish Life Assurance PLC -v- John Healy EDA 1514 (2016) 27 E.L.R. 211, the Labour Court held that a legally executed settlement agreement may form grounds for the estoppel of the complaint under the Employment Equality Acts.

Regarding the settlement agreement itself, it is noted that the heading of the same expressly lists the files references of this particular complaint, and a separate complaint referred by the Complainant.

In a further section titled “withdrawal of proceedings”, the document stated that,

“Immediately on receipt of the settlement payment, the proceedings will be withdrawn by the Complainant and will not be reinstated in any forum”.

A subsequent section entitled “release and discharge” set out the list of legislative provisions this agreement relates to, including the present Act.

Finally, in a section entitled “independent legal advice”, the agreements states that,

“The Complainant agrees that the Complainant has had the opportunity to take independent legal advice on the terms of the effect of this agreement”.

In evidence, the Complainant accepted that she verbally agreed the primary terms of this document in advance of the initial hearing. Thereafter, a draft version of this document was issued to the Complainant for her review. On receipt of the same, the Complainant approached an independent third party with significant experience in employment litigation and, presumably, such agreements. Following this consultation, the Complainant duly signed and executed the settlement agreement, with the settlement in question being transferred in due course. It should be further noted that as part of the settlement agreement, the Complainant signed pre-prepared correspondence, addressed to the Commission, stating that she wished to withdraw the complaint and outlining that the matter is to be deemed to be closed.

Having regard to the factual matrix outlined and authorities cited above, it is apparent that the settlement agreement opened by the Respondent has legal effect. In particular, it is evident that the agreement was issued to the Complainant without any inference of undue pressure or enticement. The agreement itself it clear as to the specific matters to be withdrawn and the legislation effected by the withdrawal. Finally, while it is noted that the Complainant was not represented at the hearing itself, or at the time of agreeing the provisional terms, it is further noted that the agreement provides for the provision of independent advice prior to execution. In this respect it is apparent that the Complainant sought and received such advice.

In contemplation of accumulation of foregoing points, I find that the settlement agreement opened by the Respondent served to withdraw these complaints, and that the Complainant is estopped from proceeding to hearing in relation to the same. 

I find that the Respondent did not discriminate against the Complainant.

Settlement agreement, Estoppel, Independent Advice