Complainant

Respondent

Parties

Isabelle Attianesi

DHL Express Ireland Limited

Representatives

Self

Sarah Dowling 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-00069967-001

13/03/2025

A preliminary application was made by the Respondent to the effect that I do not have jurisdiction to hear the substantive complaint in this case. The application is made on the basis that the Complainant signed a compromise agreement in full and final settlement of all claims against the Respondent and this precluded her from proceeding with the complaint herein.

Both parties made submissions in relation to this preliminary issue and the hearing was adjourned to afford both parties an opportunity to consider relevant case law and make written submissions on this preliminary point.

It was explained to both parties that if I determined that I had jurisdiction to consider the complaint then the hearing would be reconvened in order to do so.

Having considered all of the submissions in this case, I have decided to conclude matters by way of this written decision.

The Complainant says that she was unfairly selected for redundancy and that the agreement she signed was not clearly explained to her. She maintains that she should have a right to change her mind about the agreement. In particular, she states that the explanation provided was given by a manager rather than by a solicitor, and therefore did not constitute independent legal advice. She further submits that she believed it would cost approximately €4,000 to contest the redundancy with a solicitor, which she could not afford, and she therefore had no option but to accept the payment offered by the Respondent.

The Complainant described herself as being alone and vulnerable in a foreign country at the relevant time. She states that, following the announcement of her redundancy, she was in a state of shock and felt she had no realistic option but to sign the agreement in order to secure payment necessary to meet her living expenses, including rent. She maintains that the redundancy process itself was unfair and that she should not have been selected.

In written submissions, the Complainant submitted that the Respondent’s reliance on the severance agreement as a full and final settlement did not deprive the WRC of jurisdiction to hear the complaint. The Complainant contended that section 13 of the Unfair Dismissals Act 1977 provides that any agreement purporting to exclude or limit the application of the Act is void unless entered into on the basis of genuine and informed consent.

The Complainant submitted that the circumstances of the present case did not support a finding that informed consent had been given. She stated that there was no union representation or independent assistance available during the process and that all meetings and documentation were conducted in English, notwithstanding that the Complainant was not a native English speaker. It was further submitted that she was in a position of acute financial vulnerability as a foreign worker residing in rented accommodation and wholly dependent upon ongoing wages to meet living expenses.

The Complainant submitted that the Respondent did not arrange, facilitate, recommend or contribute towards independent legal advice prior to signature of the agreement and that there was no realistic opportunity to obtain such advice within the timeframe provided. The Complainant stated that legal costs subsequently quoted in relation to representation before the WRC were prohibitive relative to the severance payment offered and that publicly available alternatives involved either non-coverage or significant delays. The Complainant also relied upon the fact that a complaint was lodged with the WRC within seven days of receipt of the severance payment, which, it was submitted, demonstrated that the Complainant did not regard the agreement as a voluntary and informed abandonment of statutory rights.

The Complainant submitted that the agreement had been presented on a take-it-or-leave-it basis, namely that the Complainant could either sign immediately and accept the severance payment or leave employment without payment and pursue legal rights separately. It was contended that, in circumstances of financial insecurity and uncertainty regarding accommodation, this constituted significant economic pressure inconsistent with a genuinely informed and independent decision.

The Complainant further submitted that management representatives informed the Complainant that the Respondent was “doing a favour” by offering the severance payment and that the payment was not something the Respondent was obliged to provide. It was submitted that this further compounded the pressure placed upon the Complainant and undermined any suggestion of an arm’s-length negotiated settlement.

The Complainant argued that the existence of a number of calendar days between the proposal and execution of the agreement did not, of itself, establish informed consent. It was submitted that the relevant issue was whether there had been a realistic practical opportunity to obtain independent legal advice and properly understand the consequences of signing the agreement. The Complainant submitted that, having regard to the short timeframe, language barrier, lack of facilitation of legal advice and financial pressure, informed consent was absent.

Accordingly, the Complainant requested that the preliminary objection be dismissed, that jurisdiction be affirmed and that the matter proceed to a full hearing on the substantive complaint.

The Respondent asserts that the Adjudication Officer does not have jurisdiction to hear this complaint because the Complainant waived her right to pursue any claims against her former employer. The Respondent says that the Complainant voluntarily signed the agreement, having had time to consider it and the opportunity to take legal advice if she wished.

In written submissions, the Respondent submitted that the severance agreement constituted a valid and binding full and final settlement of all claims and therefore operated to prevent the present complaint from proceeding before the WRC. The Respondent referred to the High Court decision in The Board of Management of Malahide Community School v Conaty [2019] IEHC 486, submitting that an employer discharges its obligation where an employee is placed on notice of the rights being waived and is afforded an adequate opportunity to seek independent legal advice.

The Respondent submitted that the severance agreement in the present case was clear, written in plain language and expressly identified the statutory rights being relinquished. It was contended that the agreement unambiguously referenced the relevant employment legislation and therefore adequately informed the Complainant of the statutory framework and legal consequences associated with entering into the agreement.

The Respondent further submitted that the Complainant had been advised on multiple occasions to seek independent legal advice and had been given sufficient time within which to do so. It was maintained that the Complainant retained the severance agreement for approximately nine days prior to signature and was permitted to take the document away for consideration. It was submitted that this distinguished the present matter from Sunday World Newspapers Ltd v Kinsella & Bradley, where the employees had allegedly not been afforded an opportunity to take the document away for review before signing.

The Respondent contended that, once clear advice to seek legal assistance had been provided and adequate time afforded, the responsibility shifted to the employee to act in their own interests. The Respondent submitted that it was not under any obligation to compel the Complainant to obtain legal advice, but merely to provide the opportunity to do so. It was further submitted that the Complainant consciously elected not to avail of that opportunity and thereby assumed the risk associated with proceeding without advice.

The Respondent also submitted that the severance payment represented valid consideration for the waiver of claims and was part of a genuine attempt to resolve potential disputes rather than an attempt to contract out of statutory protections contrary to section 13 of the Act. It was argued that the agreement therefore constituted a lawful and enforceable compromise reached voluntarily and with adequate procedural safeguards.

The Respondent submitted that the Complainant’s evidence at hearing demonstrated an awareness of how to obtain legal advice and legal representation. It was further argued that the legal costs referred to in the Complainant’s submissions related to representation in ongoing WRC proceedings rather than the more limited cost of obtaining advice on the severance agreement itself. The Respondent also submitted that free legal aid services existed and had the Complainant expressed concerns regarding legal advice during the consultation process, appropriate supports would have been identified.

The Respondent further relied upon an email from the Complainant indicating that she was “happy to sign” the agreement and submitted that no concerns had been raised by the Complainant prior to execution of the agreement. The Respondent stated that, in those circumstances, it was reasonable to conclude that the Complainant understood the agreement and entered into it voluntarily.

In conclusion, the Respondent submitted that the process followed was transparent, procedurally fair and consistent with the principles identified in relevant authority. It was argued that the Complainant’s failure to obtain legal advice, despite having the opportunity to do so, could not invalidate an otherwise binding compromise agreement. The Respondent therefore requested that the waiver be upheld and that the substantive complaint not proceed to hearing.

The Respondent submits, as a preliminary matter, that the complaint is not properly before me on the basis that the Complainant entered into a compromise agreement which validly waived any claims arising under employment legislation. It is argued that, in light of that agreement, I do not have jurisdiction to inquire into the substantive complaint.

The issue I must determine is whether the Complainant validly waived her statutory rights by entering into the compromise agreement, and, if so, whether I consequently lack jurisdiction to hear her complaint.

This means that the contents of the agreement itself must be examined.

Clause 9 of the compromise agreement states:

“You acknowledge that you have been advised to take independent legal advice prior to signing this agreement and that you have fully read and understand the full meaning and effect of same.”

A “form of acceptance” is included as part of the agreement and it states:

“I hereby irrevocably and unconditionally agree to and accept the terms and conditions of the Severance Letter and agree that same are in full and final settlement of all claims of whatsoever nature made and/or which may be made by me in Ireland and/or in any other jurisdiction against the Company, its parent, subsidiaries and associated companies and/or each and all of their respective officers, directors, employees and agents in connection with and/or arising out of and/or concerning my employment with the Company and/or the termination of such employment.

Withoutprejudice to the generality of the foregoing, I hereby acknowledge and agree that the provisions made in the Severance Letter constitute a full and final settlement of all claims and demands made and/or which may be made by me against the Company, whether such claims arise at common law, in equity, pursuant to statute (including but not limited to claims pursuant to the:

• Redundancy Payments Acts 1967 to 2014

• Terms of Employment (Information) Act 1994 and 2001

• Unfair Dismissals Acts 1977 to 2015

• Minimum Notice and Terms of Employment Acts 1973 to 2005

• Organisation of Working Time Act 1997

• Protection of Employment Acts 1977 and 2014

 • Employment Equality Acts 1998 and 2015

• Payment of Wages Act 1991

• Protection of Employees (Part-Time Work) Act· 2001

• National Minimum Wage Act 2000

• Protection of Employees (Fixed Term Work) Act 2003

• Carers Leave Act 2001

• Parental Leave Acts 1998 – 2019

• Parents Leave and Benefit Act 2019 (as amended)

• Adoptive Leave Acts 1995 and 2005

• European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003

 • Data Protection Acts 2018

• Protected Disclosures Act 2014

• Workplace Relations Act 2015 or pursuant to contract, in tort (including personal injury claims), or otherwise howsoever arising.

I acknowledge that I have read and taken legal advice on the Severance Letter and the provisions hereof and that I understand, accept and agree to the contents of same and, furthermore, that I am signing this Form of Acceptance voluntarily without coercion of any description and with full understanding that I am releasing and compromising any and all claims and demands of every nature whatsoever that I have or might have against the Company, its parent, subsidiaries and associated companies save in respect of the obligations of the Company as set out in the Severance Letter.”

The Complainant expressly relied on section 13 of the Unfair Dismissals Act, 1977 which states:

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.

The Complainant states that this section specifically prohibits the Respondent from relying on the compromise agreement. This point has been addressed by Simons J. in The Board of Management of Malahide Community School -v- Conaty [2019] IEHC 486 when he stated:

“50. On a literal interpretation, section 13 of the Unfair Dismissals Act would appear to preclude the possibility of an employee ever waiving their rights under the legislation. Such an inflexible rule could present difficulties in practice. This is especially so in the context of the settlement of claims for alleged unfair dismissal. An employer who is making a financial payment in accordance with a settlement agreement will wish to ensure that the agreement is in full and final settlement of all claims which the former employee may have arising out of the termination of their employment. A *full and final settlement* clause is standard in most types of settlement agreement, not just those in respect of employment law disputes. If the correct interpretation of section 13 is that a settlement agreement would be ineffective because it would involve the former employee waiving his or her statutory rights, then this would impact on the ability of parties to compromise claims for unfair dismissal. Rather than settle or compromise claims, the parties would have to pursue legal proceedings to conclusion. This would be so even in circumstances where the employee had the benefit of independent legal advice. This would be contrary to the public interest in that it might overwhelm the Labour Court, and would result in the incurring of unnecessary legal fees.

51. Precisely because of this practical difficulty, the courts have taken a pragmatic approach to the interpretation of section 13. Notwithstanding what appears to be the literal interpretation of section 13, the case law indicates that it is permissible for an employee to make an informed waiver of his or her statutory rights.”

Simons J. went on to discuss the relevant case law. He noted that in Hurley v. Royal Yacht Club [1997] 8 E.L.R. 225, the Circuit Court considered whether an agreement entered into between an employee and his former employer, which purported to settle all claims, was void by reference to section 13 of the Unfair Dismissals Act. In that case, the Court held that notwithstanding the literal wording of section 13, it could not have been the intention of the Oireachtas to prevent parties from compromising claims under the Act. However, it emphasised that any such waiver of statutory rights must be based on informed consent. In that regard, the Court indicated that a valid agreement should identify the employment protection legislation being waived and that the employee should be advised in writing to obtain appropriate independent advice, typically legal advice. On the facts, the absence of such safeguards rendered the agreement void in that case.

That approach was subsequently endorsed by Smyth J. in the High Court in Sunday Newspapers Ltd v. Kinsella& Another [2007] IEHC 324, and has been consistently applied in practice, including before the Labour Court.

I note the decision of the Labour Court in Starrus Eco Holdings Ltd t/a Greenstar v O’Reilly (UDD1868), in which it was held that the Court does not have jurisdiction to go behind a waiver agreement entered into between the parties. This reflects the broader principle that statutory rights may be waived where the employee’s consent is informed, and where the surrounding circumstances satisfy the requirements set out in the case law.

The underlying principle emerging from this line of authority is that an employee cannot be taken to have waived statutory rights unless that waiver is made on the basis of informed consent. While a literal interpretation of section 13 might suggest that “full and final settlement” clauses are impermissible, the courts have adopted a purposive approach which permits such agreements where the employee understands the nature and effect of the rights being relinquished. This reflects a recognition of the public interest in enabling parties to resolve disputes without recourse to litigation and acknowledges that a negotiated settlement may constitute a practical vindication of the employee’s statutory rights.

Accordingly, while it is open in principle to an employee to waive rights under employment protection legislation, including under the Unfair Dismissals Act, such a waiver will only be effective where it can be demonstrated that the employee entered into the agreement on the basis of informed consent, including awareness of the relevant statutory rights and advice to access appropriate independent advice.

Turning to the facts of the present case, I am satisfied that the Complainant entered into a written compromise agreement with the Respondent which purported to waive claims arising under employment legislation. The agreement specifically identified the relevant statutory provisions that she would be waiving her right to bring a complaint under.

I am also satisfied that the Complainant was informed in writing that she should seek legal advice and was further afforded adequate time to consider the terms of that agreement before signing it. The agreement included a clear provision advising her, in writing, to seek independent legal advice prior to execution. While the Complainant chose not to obtain such advice, I am satisfied that she was expressly advised to do so and given the opportunity to obtain it. I note that there were 9 days between the Complainant receiving the agreement and confirming that she was happy to sign. I consider this ample opportunity to have taken advice had she chosen to.

Having regard to these matters, I find that the requirements identified in Hurley v Royal Yacht Club and endorsed in Sunday World Newspapers Ltd v Kinsella and Another have been met. The agreement sufficiently identified the rights being waived, and the Complainant was advised in writing to obtain legal advice. The fact that she elected not to avail of that advice does not invalidate the agreement or her understanding of the nature and effect of the rights being relinquished.

The Complainant argued that the cost of obtaining legal advice was prohibitive, stating that such advice was in the region of €4,000. However, the documentation provided by the Complainant indicates consultation fees ranging between €140 and €369, which does not support her argument that the cost was prohibitive. Further, I find the Respondent’s submission persuasive insofar as it highlights that the Complainant did not raise any concerns at the material time regarding difficulties in securing legal advice. I also note that, although the documentation provided by the Complainant post-dates the execution of the agreement, it demonstrates that she took steps to contact a free legal service. This suggests that the Complainant was capable of making such enquiries and pursuing similar avenues at the relevant time, had she elected to do so.

In the circumstances, I am satisfied that the Complainant entered into the compromise agreement with informed consent and that the waiver of her statutory rights is valid and enforceable.

Applying the reasoning in Starrus Eco Holdings Ltd t/a Greenstar v O’Reilly, I therefore do not have jurisdiction to go behind that agreement.

Accordingly, I find that I do not have jurisdiction to consider the substantive complaint.

For the reasons set out above, I find that I do not have jurisdiction to hear this complaint.

Preliminary issue – compromise agreement – full and final settlement