ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052995

Parties:

Complaint:

Date of Adjudication Hearing:  03/12/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

1:        Opening legal Issue / Jurisdiction of Adjudication

A significant opening Legal Argument was raised. The Adjudicator heard Opening arguments but allowed the full case to be presented. It was explained that the Adjudication decision would address the Opening Issue first and depending on the initial decision would or would not consider the remainder of the Case.

1:1      Respondent Argument

The issue was raised by the Respondent, represented by Mr Ferguson of IBEC, that a “Full and Final” Settlement of all “Employment and Termination thereof” matters had been agreed with the Complainant on the 15th March 2024.

The Complainant could not now seek to re litigate the case at the WRC in complete breach of the Settlement Agreement.

The Agreement had been fully translated by a Translator on the day of the meeting and ample time had been given to the Complainant to consider his position.

The Agreement was presented In Evidence and Oral Testimony was given by Parties and the Translator who were present on the day of the settlement meeting.

The Respondent cited extensive case law precedent where the Labour Court had upheld decisions not to re-open cases post Settlements – TE/24/39 Abtran Unlimited v Sumaili and other Adjudication Decisions Adj-00052192, Flanagan v Ulster Bank Irl DAC and Adj-00045779 Kenneally v Outsource Support in similar vein.

1:2:    Complainant Argument.

The Complainant argued that the purported Settlement Agreement had been solely in relation to a dispute in relation to outstanding Wages and Holiday Pay. It had never been explained to him that it was a comprehensive and “final” settlement of all his complaints. The Translation was provided by a mid-ranking Administrative employee of the Respondent whose independence was completely suspect. His own grasp of the English Language was such that he could handle day to day conversation but not a Legal document of four(4) A4 pages. He had been effectively hoodwinked into signing the Document.

As well, he was very financially pressed at the time and the prospect of lump sum of €1,500 was a major compelling factor.

1:3       Adjudicator consideration

The first issue noted by the Adjudicator was that the Complaint had been lodged at the WRC after a period of five months and 25 days. This is just inside the 6-month limit of Section 41 (6) of the Workplace Relations Act.2015. While not in any way fatal to the complaint it hardly exhibits a speedy rush to the WRC following the Severance Agreement.

Oral testimony was crucial. The Respondent Manager, Ms McG, on Sworn Oath, took the Hearing through all the steps that the Employer had taken to deal with the Complainant’s issues both with the Respondent and the Organisation where he had been deployed. The Complainant was a Contract Worker at a Client Site and initial difficulties had arisen with an employee of the Client Company.

Full minutes and copies of e mail traffic were presented in evidence. The Complainant had actively participated both in Writing and Orally in this process.

It was the observation of the Adjudicator that the Complainant in his evidence, while not of Native language standard, was quite comfortable with the English Language. He obviously understood what was going on.

The Settlement Agreement of the 15th March 2024 covered all matters that had been discussed.

The Oral testimony of the Respondent employee, Ms Lais E M de Oliveira, the Translator, an Administrative employee, was interesting. She had taken a sworn Oath at the start of the Hearing. She stated that she was not from a HR background. The HR style Language in the Agreement would not have been her daily experience but she understood it completely.

On close questioning from the Adjudication Officer and questions from Mr Ferguson for the Respondent she maintained that she had explained the Document, in every day Portuguese language ,to the Complainant. She was in no doubt that he had understood it fully and knew that it was final settlement. She recalled that the Complainant had been allowed time to consider his position. Management had not, in any way, sought to influence her.

Ms Mc G, the HR Manager, again on Sworn Oath ,emphasised that she had not sought to take advantage of the Complainant. He had been allowed a considerable period of Suspension ( in excess of three months) of full Pay while his complaints were investigated. She as HR Manager was always keen to ensure that the full meaning of the Settlement was understood by the Complainant. On Adjudicator questioning she confirmed that she would have allowed the Complainant to seek outside advice if necessary but on the day he seemed anxious to conclude matters. He had made it plain that he was now seeking to engage in a Third Level engineering course and was in fact always going to resign.

The issue was raised that the principal focus of the Complainant’s complaints was an employee of the Client Company and not the named Respondent. The responsibilities of the named Respondent, present at the Hearing, had been discharged fully. The Client Company had not been listed as a possible Respondent. The Settlement Agreement had disposed of the named Respondents involvement.

The Complainant had indicated to the Respondent hat he wished to do a Professional Engineering course in Ireland.

Post the Agreement on the 15th March he had discussed his case with FLAC and other Legal advisors and possibly out of these conversations the reference to the WRC had arisen.

1:4        Adjudicator - Opening Issue Conclusions

Paying careful attention to the Oral testimony of the Parties and the Translator on the 15th March 2024 it was the inevitable conclusion, based on the balance of probabilities, that the Complainant was fully aware of what he was accepting. His English language skills, while not exemplary, were obviously such that he was able to participate fully.

On the question of Representation and the Opportunity to Seek Advice before Signing the view has to be, having listened to all the oral testimony and read the Written materials, that this was a weakness in the Respondent case.

However, having listened to the Oral testimony, the Adjudication came to the view that the Agreement was fully understood and was signed without coercion. Accordingly, the Adjudication let it stand.

Accordingly, the overall conclusion has to be that the Agreement of the 15th March 2024 was full & final and there is no role or jurisdiction for the Adjudication Officer to re-open the case against the named Respondent.

The case has to be seen as not Properly Founded.

2:        Findings and Conclusions:

3:        Decision:

Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.

CA-00064861-001

The issues in dispute were settled in a full and final agreement between the Parties on the 15th March 2024.

Accordingly, the Adjudication does not, now, have the jurisdiction to proceed.

The case has to fail.

Dated: 17th February 2025.   

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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