THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011-073
(represented by Brendan Kelly, B.L, instructed by Charles Daly & Co. Solicitors)
Siemens Enterprise Communications Ltd.
(represented by Rosemary Mallon, B.L., instructed by Arthur Cox Solicitors)
File Reference: EE/2008/519
Date of Issue: 14 April 2011
Employment Equality Acts 1998-2008, Section 6(1) - less favourable treatment, - Section 6(2)(g) - disability, Section 8 - conditions of employment, Section 8(6) - discriminatory dismissal, status of redundancy package - jurisdiction to investigate the complaint
This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the disability ground, in terms of Sections 6(1), and 6(2) (g) of the Employment Equality Acts 1998-2008 and contrary to section 8 in relation to his conditions of employment and dismissal.
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 7 August 2008 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008, the Director delegated the case on 22 September 2010 to me, Valerie Murtagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 8 December 2008, and from the respondent on the 19 February 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 11 March, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant was diagnosed with Parkinson's disease and commenced working on a part-time basis in November, 1999. In September, 2000 he was accepted for partial disablement on the company's income continuance plan. From then on, he worked 5 days pro-rata over a 10 day period. He has been employed with the respondent for 26 years. His work involved maintenance and servicing of University College Cork's telecommunication equipment and remote vetting of customer technical problems. The complainant lodged a claim of discrimination in relation to training, conditions, harassment and dismissal on the grounds of his disability. On 7 March, 2008 he was called to a meeting with the general manager and the human resource officer where he was advised that 'his job was gone'. The complainant submits that this news came as a complete shock and surprise to him. At this meeting, the complainant was told that he had two options to consider, that is electing a PHI insurance scheme which the complainant at all times considered to be unethical as he was and still remains able to work which the complainant understands was a requirement of such a scheme. The second option which was put to complainant was that of redundancy. The complainant was supplied with figures in relation to both options but he indicated to the respondent that the only ethical option available to him was redundancy.
3.2 The complainant states that, at no time during the meeting of 7 March, 2008 was he informed of the requirement to sign a waiver of his statutory rights or otherwise nor was he furnished with a template waiver form. The complainant states that shortly after this meeting, he briefly discussed the issue of the redundancy with his solicitor and his solicitor informed him that it was a bona fide redundancy situation. The first reference to the waiver was by way of an e-mail sent by Director of HR to the complainant dated the 25 March 2008. In this e-mail, no express reference was made to the waiver other than the fact that it was an attachment and that the complainant was requested to review all attached documentation "in order to ensure that the information is consistent with ..[the complainant's]...understanding". At this juncture, the complainant had already consulted with his solicitor regarding the redundancy scenario as put forward by the respondent on the 7 March 2008 wherein the complainant is adamant that no issue regarding any statutory waiver was raised. It is submitted by the complainant that over the following weeks, significant amounts of e-mail correspondence was entered into between the complainant and the respondent and was merely for the purposes of seeking clarity in relation to the complainant's entitlements. The complainant states that throughout this correspondence, his attention was not drawn to the aforementioned waiver or its effects upon the complainant's statutory rights. The complainant submits that the e-mail correspondence during the period between March 2008 and May 2008 in no way constituted negotiations regarding his redundancy conditions but was exclusively for the purposes of clarification. The complainant rejects the respondent's assertion that any negotiation transpired between the parties regarding redundancy terms.
3.3 The complainant states that he received an e-mail from the Director of HR dated 2 May 2008 and was informed that "... in accordance with our procedures you [the complainant] are required to sign the waiver letter template attached." The complainant states that no further information regarding same was given to him at this time and he was not provided with any choice regarding the signing of same. The complainant responding to the e-mail dated 2 May referred to the myriad of legislation quoted on the attached waiver and stated that he was not familiar with same. By way of a further e-mail also dated the 2 May 2008 the Director of HR referred to the complainant's query regarding the waiver and simply stated that "this is our standard letter for redundancies". The complainant states that at this juncture, he clearly understood that he would not receive any redundancy to include statutory redundancy or otherwise, nor would he receive his P45 which was essential insofar as his social welfare entitlements were concerned unless he completed all documentation which was to include the waiver. In another e-mail dated 2 May 2008 from the complainant to the respondent, the complainant states that having suffered extreme anxiety as a consequence of the protracted stress caused by the redundancy situation and from all of the overwhelming correspondence and documentation which followed, he was "in bits" and that "he didn't know what to do, what's it all about, but to stop the misery and upset, I'll sign it if you insist". The complainant submits that he signed the purported waiver as a consequence of the aforementioned stress and duress as referred to above.
3.4 The complainant submits that at no stage did any agent on behalf of the respondent discuss or go through the purported waiver with him either in person or otherwise. The complainant further states that at no stage were the consequences of the said document discussed with him and the complainant was clearly given the impression by the respondent that he had no alternative but to sign the document. The complainant states it was put to him that the document was procedural in nature and that if he did not sign it he would not receive any redundancy payment (to include even statutory redundancy) or his P45. The complainant contends that he was under extreme pressure as a consequence of his family situation and his personal health to sign whatever documentation the respondent so directed and insisted upon. The complainant further submits that it was a precondition of the respondent that he sign the RP50 Redundancy Payment Claim form prior to receiving his statutory redundancy payment and that no payment would be made to him without out said form having been first signed.
3.5 The complainant submits that the Tribunal has full jurisdiction to hear this claim on the basis that the complainant was not in a position to negotiate terms with the respondent and was under severe duress to sign all documentation and forms presented to him in order to receive any redundancy payment. In this regard, the complainant refers to the case of Gerald Shortt v Data Packaging Limited (1996) E.LR.7 in support of his case. The complainant also submits that the purported waiver does not specifically exclude any Employment Equality Legislation and therefore the Tribunal has jurisdiction to hear this claim.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states that as a result of synergies to be gained by the respondent company from Siemens UK's resources, it was apparent that a number of functions would be ceased and would thereafter be provided by Siemens UK. The respondent states that all employees including the complainant were made aware of developments through staff announcements and e-mails. The respondent submits that the complainant was one of 15 employees made redundant over a 10 month period from January, 2008 to October, 2008, representing a total reduction in Siemens Enterprise Communications Ltd.'s (SEN Ireland) workforce of almost 28 %. The respondent states that the complainant was informed that his role was being outsourced to Siemens UK at a meeting of 7 March 2008. The complainant signed the redundancy agreement on 13 May 2008. The respondent states that notwithstanding the fact that the complainant had been working a 20 hour week for the preceding 9 years and that his fixed annual salary since October 2007 was €23,020, the respondent, on an ex-gratia basis, calculated the complainant's redundancy payments in reference to a notional full-time salary of €44,601 resulting in a statutory redundancy payment to the complainant of €31,932. In addition to this statutory sum, the respondent paid to the complainant an ex gratia sum, again calculated by reference to a notional full-time salary of €72,429.51. The complainant received a total redundancy payment from the respondent of €104,361.51.
4.2 The respondent states given that the complainant signed a waiver document in consideration for the sum of €104,361.51, he is prohibited from bringing and maintaining this claim as he entered into and signed a redundancy agreement on the 13 May 2008 which provided for inter alia: I John Green .... agree to accept the sum of €104,361.51 in full and final settlement of all claims arising from my employment and its termination with Siemens Ltd. both under Statute and Common Law". On this basis, the respondent submits that the Tribunal has no jurisdiction to hear the claim and that it should be struck out. In this regard, the respondent refers to Fowler and Bergin v Hardware Distributors Dublin Ltd.  ELR 240, Talbot (Ireland) Ltd v Minister for Labour and Others  4 JISLL 87, PMPA Insurance Company Ltd. v Keenan & Others  1 IR 330. The respondent states that it received and replied to numerous e-mails from the complainant relating to the cessation of his employment and over 50 e-mails/letters were exchanged between the parties on the issue of redundancy. The respondent states that the complainant was provided with a standard 'redundancy pack' at the meeting of 7 March 2008. The respondent further states that in addition to other documentation, this pack contained a copy of the respondent's redundancy waiver form. The respondent states that it is clear from the complainant's letter of 10 March 2008 to the HR officer that he had sought legal advice on redundancy as he refers to having passed documents to his solicitor who raised comments thereon. The respondent states that the complainant was provided with a further copy of the draft redundancy waiver with the figures left blank as an attachment to an e-mail from the Director of HR on 25 March, 2008.
4.3 The respondent states that far from being a fait accompli, the complainant successfully challenged the basis of some of the respondent's figures and the respondent made changes in accordance with the complainant's suggestions. The complainant was sent a final copy of the waiver with the appropriate negotiated figures on 2 May 2008. The text of the document itself and the correspondence from Director of HR, in particular his e-mail to the complainant of 7 May 2008 advised the complainant of his right to consult with his representative before signing same. The respondent states that the complainant had ample opportunity to consider the waiver and to receive advice on same. The waiver was signed by the complainant on 13 May, 2008. In conclusion, the respondent submits that the complainant entered into a binding agreement with the respondent and resolved all matters in relation to his employment. It states that he had the benefit of advice from his solicitor. The respondent submits that the complainant is bound by the agreement, which comprises the statutory rights he is now invoking under the Employment Equality Legislation before the Tribunal, and therefore his claim should be struck out.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The respondent has submitted that this Tribunal does not have any jurisdiction to investigate the alleged discrimination in the present case. It contends that the complainant has compromised his right to refer a complaint under the Acts on the basis of the waiver which he signed upon the termination of his employment. The issue I have to consider relates to the redundancy agreement entered into by the complainant with the respondent. The redundancy agreement which provides the complainant with statutory redundancy and an ex gratia payment was signed by the complainant and stated that it was "in full and final settlement of all matters in relation to my employment and its termination with Siemens Ltd. both under Statute and Common Law". I have to consider whether this agreement precludes the complainant from taking a case under the Acts in relation to his conditions of employment and his dismissal.
5.2 The complainant was called to a meeting on 7 March, 2008 and advised he was being made redundant on the basis that SEN UK, a sister company of the respondent was going to provide many of the services which had up to that point been provided by Siemens Ireland or from within SEN Ireland's own resources. The complainant was one of 15 employees made redundant over a 10 month period from January 2008 to October 2008, representing a total reduction in SEN Ireland's workforce of 28 %. There is a conflict of evidence between the parties regarding the 'redundancy pack' which was provided at the meeting of 7 March. The respondent states that the waiver document is a standard document given out as part of the redundancy pack, however, the complainant refutes this assertion and states that the first time he received the waiver was by way of e-mail sent by the Director of HR on 25 March, 2008. The complainant states that while he sought legal advice from his solicitor shortly after the meeting of 7 March; the solicitor's advice was solely limited to clarification on the bona fides of the redundancy situation. While there is a conflict of evidence regarding when the waiver form was first provided to the complainant; it is clear that the complainant did receive it on 25 March and had 6 weeks to consider the form prior to signing it. He was also informed in correspondence from the respondent to seek advice/representation on the waiver prior to signing same. I am satisfied from the evidence outlining the sequence of events between the initiation of the talks in relation to the redundancy package and the signing of the agreement that the respondent put no pressure on the complainant to accept the package. I am also satisfied from the evidence of both parties given the volume of correspondence between the parties, i.e. over 50 e-mails/letters were exchanged regarding the redundancy situation between the parties, that the complainant was fully aware of the conditions pertaining to the agreement.
5.3 In considering this case, I have taken into account the jurisprudence of the High Court Judgment of Smyth J in the case of Sunday Newspapers -v- Kinsella & Anor  IEHC 324. The case concerned a severance agreement purporting to compromise entitlements under the Protection of Employees (Fixed Terms Workers) Act 2003. Smyth J. held that the question of whether or not 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. He went on to say 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 taken into account by the employee. In applying the jurisprudence to the case in hand, I am satisfied that the complainant had the option of seeking advice of his solicitor during the course of the negotiations with the respondent. While the agreement does not explicitly cite the Employment Equality Acts, it does provide that the redundancy package was in was in full and final settlement of all matters in relation to the employment both under Statute and Common Law. The final paragraph of the waiver agreement states; "I confirm that this document has been read over and explained to me prior to my signing. I understand and accept the contents. I sign knowingly and voluntarily".
5.4 Having examined the course of the negotiations between the parties before signing of the agreement, I am satisfied from the complainant's own evidence that his consent to the agreement was informed and that he had the option of consulting with his solicitor and was informed by the respondent regarding seeking advice/representation regarding the waiver agreement prior to signing same. The complainant states it was put to him that the document was procedural in nature and if he did not sign same he would not receive any redundancy payment (to include even statutory redundancy) or his P45. This testimony by the complainant is in conflict with the e-mail documentation in the submissions, in that, the complainant sent an e-mail dated 8 May to the respondent stating're: the general waiver letter, you state "our policy requires that you sign this form in order that the company agrees to pay you the ex-gratia amount". Please forward me urgently a copy of this policy document for my inspection.' It is made clear that the waiver agreement related only to the ex-gratia payment and would not affect the complainant's statutory entitlements. Having examined the decision in relation to Gerald Shortt v Data Packaging Limited (1996) E.LR.7 the facts of the case are very different to the circumstances pertaining in this claim. Mr. Shortt was advised that he was being made redundant at 5.30 of a particular day and was requested to sign the waiver agreement the following day or he would not receive his financial entitlements. Mr. Shortt stated on the form that he was signing the waiver document on a without prejudice basis. It is not clear in this case whether the waiver included the right to consult with and get legal advice/representation. In relation to the complainant's case, from an examination of the submissions and the copious exchange of e-mails/letters between the parties, I am satisfied that the complainant was advised regarding the right to seek legal/advice representation prior to signing the waiver document. I am also satisfied that the complainant was aware that the signing of the waiver agreement pertained to the ex-gratia amount and would not effect his statutory entitlements to redundancy.
DECISION OF THE EQUALITY OFFICER
6.1 I am satisfied that when the complainant signed the redundancy agreement, which provided that in return for a lump sum to include a statutory redundancy payment and an ex-gratia payment, he accepted the terms of the redundancy agreement in full and final settlement of all matters in relation to his employment with the respondent including its termination. I am satisfied that his consent to such an agreement was fully informed. I find therefore that the redundancy package as signed by the complainant compromises any claim the complainant has under the Employment Equality Acts and accordingly, I do not have jurisdiction to investigate the case.
14 April 2011