Complainant

Respondent

Parties

Connie  Gerety

North Leinster Citizens Information Service Limited

Representatives

  Self-Represented

Mairead McKenna S.C. instructed by Aoife Hennessy of Sweeney McGann LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health and Welfare at Work Act 2005

CA-00050559-002

09/05/2022

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 9th May 2022.

The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and supplemental documentary evidence in support of her case. She provided me with comprehensive written submissions on the 9th October 2024. These documents were also shared with the Respondent. No objection was raised to any of the materials relied upon by the Complainant in making her case.

The Complainant alleged that she was penalised for raising a health and safety complaint. She accepted that she entered into a mediated settlement agreement on the 29th November 2022 with the Respondent and that she was represented by a solicitor, Junior Counsel and Senior Counsel at the mediation and was accompanied by her husband on the day but submitted that the WRC had jurisdiction to hear and determine her complaint under the Safety, Health and Welfare at Work Act 2005.

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 provided me with comprehensive written submissions dated the 4th October 2024. This was also shared with the Complainant. 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 reserved its position on the issue of the substantive claim of penalisation. The Respondent asserted that the Complainant knowingly, willingly and with the benefit of independent legal advice entered into a financially rewarding settlement agreement, that the settlement agreement encompassed the within complaint and therefore the Complainant was precluded from seeking relief under the safety, health and welfare at work 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.

In making these findings, I have considered the documentation submitted by the parties and the oral submissions made at the hearing.

The Law:

Preliminary Decisions:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 and Hardiman J. in B.T.F. v. Director of Public Prosecutions [2005] 2 I.L.R.M. 367. In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue.

In Donegal Meat Processors v. Gillespie t/a Foyle Donegal, UDD2114, the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Following the caselaw outlined above I find that there is a “strong case” for determining this matter by way of preliminary decision.

Preliminary Issue: whether the Complainant has compromised her right to pursue her complaint

The first issue that I must decide upon relates to the jurisdictional issue raised by the Respondent as to whether the Complainant has compromised her right to pursue her complaint under the Safety, Health and Welfare at Work 2005 because of the settlement agreement which she signed on the 29th November 2022.

I note that the settlement agreement includes provisions within which the Complainant agreed to notify the WRC of the withdrawal of all employment law claims against the Respondent. The Complainant does not dispute that she signed the settlement agreement on the 29th November 2022 and that she availed of legal advice in so doing.

In considering this matter, I have considered the High Court judgment of Smyth J. in the case of Sunday Newspapers Limited v. Stephen Kinsella & Luke Bradley [2008] 19 E.L.R. 53. This case concerned a severance agreement purporting to compromise entitlements under the Protection of Employees (Fixed Term Workers) Act 2003. Smyth J. held that the question of whether statutory rights have been compromised is a matter for the proper construction of the agreement itself and that informed consent and appropriate advice is crucial if the compromise is to be upheld. Smith J. also went on to state that where an employee is being offered a severance package he or she is entitled to be advised of his or her entitlements under the employment protection legislation and any agreement should list the various applicable statutes or at least make it clear that the same has been considered by the employee.

Smith J. also endorsed the dicta of the Circuit Court in Donal Hurley v. the Royal Yacht Club [1997] E.L.R. 225 wherein Buckley J. set out the following principles in relation to settlement agreements:  

“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, which presumably in this case, would have been legal advice. In the absence of such advice I find the agreement to be void.”

In applying these principles to the instant case, I am satisfied firstly as a matter of construction, that the settlement agreement concluded between the parties was intended as full and final settlement of any existing and potential claims arising from the employment relationship between the parties, including a complaint under the Safety, Health and Welfare at Work Act 2005. In this regard, I have carefully examined the content of the settlement agreement and I am satisfied that the within complaint, referred to the WRC on the 9th May 2022, is covered by the terms of the settlement agreement and that the Complainant expressly agreed to notify the WRC of the withdrawal of the within complaint.

Secondly, I am satisfied that the Complainant was represented by legal advisers and that she  obtained legal advice from a solicitor, Junior Counsel and Senior Counsel in relation to the implications and effect of the settlement agreement and was financially facilitated in doing so by the Respondent, as part of the terms of the settlement agreement. The Complainant also confirmed that at the time the settlement agreement was entered into she was accompanied by her husband. In the circumstances, I find that there was fully informed consent on the part of the Complainant and that she signed the settlement agreement with the benefit of informed consent.

Having regard to the foregoing, I find therefore that the settlement agreement as signed by the parties compromised any claims the Complainant has arising from her employment with the Respondent under the Safety, Health and Welfare at Work Act 2005 and I do not accept the assertions made by the Complainant that the Respondent has in any way breached or is seeking to reconcile from the aforementioned agreement. Accordingly, I find that I do not have jurisdiction to investigate the complaint.

I find that the settlement agreement as signed by the parties on the 29th November 2022 compromised any claims the Complainant has under the Safety, Health and Welfare at Work Act 2005. Accordingly, I do not have any jurisdiction to inquire into any complaint made by the Complainant under this enactment.