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FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: EIR
- AND - SEAMUS HAYES DIVISION:
SUBJECT: 1. Appeal of Adjudication Officer Decision No(S) ADJ-00036751 CA-0047868-001 DETERMINATION: Background to the Appeal The Appellant was employed by the Respondent following a transfer of undertakings which occurred on 4th February 2019. In October 2019 the Appellant voluntarily signed a new contract of employment with the Respondent. In June 2020 the Appellant was reminded by the Respondent of his then approaching retirement which was to take place on his 65th birthday which was to fall on 2nd July 2020. The Appellant responded to this reminder by seeking to extend his employment beyond his 65th Birthday. The Appellant sought and was ultimately offered a fixed term contract of employment for 12 months commencing on 1st July 2020 and due to expire on 2nd July 2021. A condition of that offer was that he sign a form of acceptance which included a statement that he irrevocably and unconditionally agreed and accepted the terms and conditions of the settlement letter which had been given to him by the Respondent. That letter was accompanied by a form which accepted that the terms of settlement constituted full and final settlement of all claims including specifically any claims arising under the Act with respect to his employment. The Appellant, who was legally advised at the time and advised by his trade union, signed a letter confirming these terms after a period of time which he sought and was readily granted by the Respondent. The fixed term contract which commenced on 1st July 2020 terminated on its expiry on 2nd July 2021 The Appellant made the within complaint on 23rd December 2021. He confirmed to the Court that the within complaint related to the termination of his employment upon the expiry of the fixed term contract. Summary of the submission of the Respondent The Respondent submitted that all matters associated with the employment of the Appellant prior to 1st July 2021 were encompassed by a waiver agreement he signed on 7th July 2020. The Appellant was given time to consider the terms of settlement of such matters and was in receipt of legal advice and the advice of his trade union prior to his signing of the agreement which waived all claims related to his prior employment with the Respondent and specifically waived all claims under the Act. The within complaint therefore relates only to the termination of the employment of the Appellant on the expiry of the fixed term contract freely entered into by him in July 2021. That contract was signed by the Appellant and expressly stated:
2(2)[Subject to subsection (2A), this Act] shall not apply in relation to—
The Respondent submitted that these sections of the Acts exclude the application of the Act to the termination of the Appellant’s fixed term contract of employment in July 2021. The Respondent, when invited, advised the Court that it did not wish to offer testimony. Summary submission of the Appellant The Appellant submitted that he was under duress when he signed the terms of settlement document in July 2020. He received independent legal advice at the time and also received the advice of his trade union. He submitted that he had been unaware that the normal retirement age of the Respondent was 65 years of age. He tendered evidence from a manager and a colleague who had attended a ‘town hall’ meeting in October 2019 where the matter of the option to sign a new contract of employment with the Respondent was discussed. Both witnesses gave evidence to the effect that no mention of a retirement age of 65 was made at this meeting. Both witnesses stated in evidence that they were not present at any engagement between the Appellant and any manager of the Respondent in relation to retirement age. When asked by the Court to clarify his submission, the Appellant confirmed that the duress he referred to when signing a waiver and terms of settlement in July 2020 was the stress of not being offered continuing employment unless he signed such documentation to confirm his acceptance of the Respondent’s offer of a fixed term contract of employment. Discussion and conclusion The termination of the Appellant’s contract occurred on the expiry of the fixed term contract of employment. The Court notes that the Appellant did receive legal advice and the advice of his trade union before signing this contract and that he was afforded time to reflect on the matter prior to signing. The Court does not accept that the fact that his receipt of a fixed term contract of employment depended upon his signing a document accepting that contract on the terms offered amounted to duress exerted upon him such as undermine the agreement entered into by the parties. The Court therefore concludes that it cannot go behind the agreement entered into by the parties wherein the Appellant waived his right to make a complaint under this Act in respect of his prior employment with the Appellant. The matter before the Court must therefore relate only to the termination of the fixed term contract freely entered into by him, on the basis only of its expiry. By operation of the law at Section 2(2)(b) of the Act, this Act cannot therefore be held to apply to the termination of the Appellant’s employment in July 2021. Decision Having considered the Parties’ written and oral submissions and the testimony proffered by the Appellant, the Court decides that the Act does not apply to the termination of the fixed term contract of the Appellant on its expiry. The appeal therefore fails, and the decision of the Adjudication Officer is affirmed. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
