Complainant

Respondent

Parties

Mark  Morrissey

Three Ireland Hutchison Limited

Representatives

Emily Maverley,

IBEC

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-00064420-001

01/07/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with 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) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

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 where there is potential for a serious and/or 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 and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

It should also be noted that the Complainant and Respondent witnesses were all agreeable to giving the formal affirmation.

The Specific Details of the Complaint is  outlined in the Workplace Relations Complaint Form which was received by the WRC on the 1st of July 2024.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case.  The Complainant made two separate written representations advancing his claim. These were dated the 11th and 26th of October 2024. At the outset the Complainant agreed to give his evidence on Affirmation. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly Dismissed. In particular, the Complainant says that he was made redundant as part of a collective Redundancy process in circumstances where his redundancy was no longer required by the Respondent as the required staff reductions (in the specific Department) had been made through re-deployment.

Where it also became necessary, I explained how the Adjudication process would operate. This was particularly important as the Respondent had raised a preliminary issue which needed to be fully heard and disposed of before the substantive UD issue could be Adjudicated upon.

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 IBEC representation at this hearing. A number of in-house representatives from the Respondent HR team were present at the hearing. Two witnesses gave evidence at the hearing. These were the HR Business Manager (AR) and the Complainant’s Line Manager (CM). This evidence was given on Affirmation. The Respondent provided me with a comprehensive written submissions dated the 17th of October 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 witnesses were questioned by the Complainant.

The Respondent rejects that there has been an Unfair Dismissal. The Respondent asserts that there was a legitimate and lawful Redundancy Process across the Respondent Company. Without prejudice to this assertion, the Respondent makes the case that the Complainant entered into a Severance Agreement which included an informed Waiver of the Complainant’s right to bring a claim for Unfair Dismissal to the WRC.

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 carefully listened to the evidence adduced in the course of this hearing.

I fully accept that the Respondent Company entered into a process of collective Redundancies from early March of 2024. The requirement to reduce payroll costs against a background of low margin growth forced the Respondent Company to restructure its workforce and I understand that 120 people from a staff of 1,300 was made Redundancy as part of the process.

I heard considerable evidence from both the HR Business Manager (AR) and the Complainant’s Line Manager (CM) about the company wide implementation as well as the local implementation of the Consultative process. The Company has an internal Employee Representative body made up of elected Employees who liaise with the Employer to negotiate the way in which the Consultative process would operate. The Company provided resources around Tax information, Social Welfare entitlements and EAP support for the Employees who would be affected. The Employee Reps reached out to individuals and expressed any concerns raised locally with the Employer through a Forum.

The Employer devised a Redundancy selection Matrix which ensured that every effected employee was to be evaluated against a key set of relevant criteria to be applied fairly and consistently. CM gave evidence that the Selection Criteria focused on technical expertise as well as skills and liabilities. This was a bone of contention for the Complainant who had expected that his sixteen years of Service to the Company should also account for something.

The Complainant was one of three BAM Managers seemingly carrying out the same or similar function. The management identified that it would move forward with only two of these roles and the expectation was that one of the BAN Managers would be made Redundant. CR gave evidence that he was involved in the Desk Based Assessment of the three Managers. He advised that  the selection criteria was provided to him and he assessed the three against that Criteria. Ultimately it was decided of the three that the Complainant was the one who would be made Redundant.

On the 27th March 2024 the Complainant engaged in an Individual Consultation Meeting with CR.  In the course of the meeting (which was fully minuted) the Complainant was told that:

“The assessment process is now concluded, and I can confirm as a result of this, you have not been selected into one of the remaining 2 roles within the team.

Therefore, because of this I must advise you that your role will no longer exist in the future structure and therefore you are now at risk of redundancy.”

The notes also state:

“It is a principal of this process to seek alternative opportunities for redeployment within the organisation where possible for any employee at risk of redundancy.

All current vacancies are available on the Internal Career site for your review and consideration. If it is the case that you consider that your skills and experience could be suited to any other open role, then please let me know as soon as possible.

Two areas/questions were covered, that were raised during the meeting:

1.

Open roles

Mark asked whether he would be provided details of roles that were available, or would he have to find out what roles were open.

We confirmed that anyone at Risk of Redundancy has access to the careers site and open vacancies. People can then make a choice on what (if any) roles they might be interested in applying for, or that match their skills/experience, rather than the business making any assumptions on people’s preference for roles available.

2.

Pool outcome if another member of the team not at risk, was appointed to another role in the business

We confirmed that if one of the remaining 2 BAM Sales mgrs retained, subsequently secured another role arising from the overall Business restructure, the pool reduction of 1 role would have been achieved and there would be no business case to undertake a redundancy.

This would apply to any other Pool selection, where the required reduction in roles was achieved through natural attrition or internal moves. Mark asked if this scenario could be challenged

At this time, we were not aware of such a scenario arising and would discuss with individuals currently at risk, should this occur.

The Complainant understood that that part of the conversation (which I have underlined above) meant if one of the two BAM Managers not selected for redundancy was re-deployed elsewhere then the Complainant would not be made Redundant.

The Complainant was provided with a severance agreement in early April 2024. I understand that the Complainant did interview for a re-deployment within the workplace The Complainant signed the severance agreement on the 26 April 2024, at which time he was formally notified that his position was to be made redundant. A sum of money was agreed between the parties and the monies were discharged within the timeframe.

I accept that the severance agreement clearly identifies that in consideration for the payment, the Complainant waived his entitlement to raise any issues or causes of action arising out of the termination of his employment:-

 “In consideration of the Employee’s acceptance of the terms and conditions of this Agreement which are in full and final settlement, satisfaction, release and discharge of any and all claims, actions or causes of action, contracts or liabilities, whether under 3 statue, common law equity or otherwise arising out of the Employees employment or termination of his employment which he has or may have against the Company and/or any Associated Undertaking, their directors, employees, officers, or shareholders, the Company shall pay the employee the following..”

It is quite clear that the severance agreement clause precludes the Complainant from pursuing claims under the Unfair Dismissals Acts (which is identified and  specified in the agreement itself).

The Respondent has identified the fact that The Complainant was provided with ample time to consider the contents of the agreement, and that he was advised by the Respondent to seek legal advice prior to signing the agreement, which he chose not to do. A clause included in this agreement, was that the Respondent would provide a contribution toward legal fees incurred by employees and is one that the Respondent honoured upon receipt of notification from any employee who chose to do so. No such notification was received from the Complainant. In her evidence to me the HR Business Partner confirmed that had there been any request regarding taking legal advice that would have been given.

The Complainant was paid his eight weeks of Notice in lieu and his last day of employment was the 2nd of May 2024.

Some ten days to two weeks thereafter it became apparent that one of the other two BAM Managers had in fact successfully re-deployed within the Respondent Company. The Complainant is now seeking to reverse the effects of the Severance Agreement on the basis of the information which came to light after the termination of the Employment. The  Complainant is relying on the assurances given ion the March meeting wherein he was told

We confirmed that if one of the remaining 2 BAM Sales mgrs retained, subsequently secured another role arising from the overall Business restructure, the pool reduction of 1 role would have been achieved and there would be no business case to undertake a redundancy.

The Respondent has asserted that the Complainant has now signed a Waiver and cannot now litigate the termination of his Employment in this way. The Respondent emphasised that the Re-Deployment of the second BAM Manager was not known at the time of the termination of Employment – May 2nd. The information was not known or knowable as the selection/redeployment had not happened. When the Complainant left the employment the Redundancy selection process was complete, and two of the three BAM Managers were left behind. What happened afterwards (says the Respondent) does not impact the agreement knowingly entered into by the parties where considerable consideration was given to ensure that no further issues would arise. It has been further pointed out to me that there is now and will into the future only be one BAM Manager engaged by the Respondent. The Employer, it seems, has found that it can operate with two thirds fewer BAM Managers. This has had a beneficial effect, I must assume, on the swollen Payroll.

There is of course some case law in this area. The leading authority in relation to agreements which compromise employment statutory rights isSunday 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 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 adoptedHurley v. Royal Yacht Club [1997] ELR 225which 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.”

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, including complaints under the Unfair Dismissals legislation. To this end, I note that the Consideration and Compromise of Claims was fully identified and the there is no suggestion on the part of the Complainant that he did not fully understand the implications of same.

I must also be satisfied that the Complainant gave his informed consent. Under clause 5 of the Severance Agreement the Complainant confirms that he has taken legal advice and understands and accepts the terms of the Severance Agreement. In his oral submissions, the Complainant confirmed that he signed the Severance Agreement with the full knowledge of the impact of the agreement on his legal rights. The Complainant stated that he understood the Severance Agreement. He confirmed that he had the opportunity to take legal advice though he chose not to. I am satisfied that the Complainant had the best part of three weeks to consider the Severance Agreement. I am satisfied that the Complainant knew or ought to have known that the Company was in a state of flux with so many redundancies and an ongoing extensive programme of Re-Deployment. The Complainant did not provide evidence to the effect that he believed that he was the last person to be made Redundant or that it was unlikely that there would be any continued movement internally after he was gone. He could not make that assumption.

The signing of the Severance Agreement is the cut off point. What happens thereafter is not relevant. The retention of the BAM Manger in another position was not anticipated.

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

CA-00064420-001 - 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.