ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00002622
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 15/09/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under the Industrial Relations Acts following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
A Telesales Executive
A Marketing Company
The Complainant was employed as a Telesales Executive from 25th May 2015 to 14th March 2016. He was paid €30,000 per annum. He has claimed that he was wrongfully dismissed and has sought compensation. The Respondent has rejected this claim.
Complainant’s Submission and Presentation:
I started with the Respondent on the 25th of May 2015, with an initial 6 month probation period. My six month review was due to take place on the 25th of November, this did not happen. My sales were very strong at this point. A new Director of Sales was appointed to the company in November. During a routine meeting with the new Director of Sales on the 18th of January 2016. I mentioned that my review had not happened, and I wished to be made permanent as I could then avail of the Health Insurance and Pension offered by the company to permanent employees. He mentioned that he would be unable to conduct the review himself as he had no experience of my first six months with the company as he had only joined in November 2015. The next day (19th of January 2016) a review was conducted. I was told that I would not be made permanent and that my probation period was to be extended for another six months, bringing the end date of probation to 25th May 2016. The problem identified was solely based on sales performance. Stating "Your attendance, timekeeping, telephone manner, team contribution and general character have proven to be of high standard". The letter also stated "..it will be necessary for you to address the problems we discussed and listed above, and to meet your agreed targets from January to April of 2016". When I joined the company my wife fell pregnant soon afterwards. I informed the company in August that my wife was expecting in March and I would be taking annual leave as soon as the child arrived. I then carried over annual leave days from 2015 to 2016 to facilitate this. On March 7th my second daughter was born. I had informed the company I would be taking 10 days annual leave plus 3 paternal days once the child was born. I sent a text message to the Insides Sales Manager at 9.41am on the 7th March. To tell him of the birth of my daughter. On the 9th of March I received a call from the insides sales manager informing me that I could only take 6 annual leave days and would be due back in the office on the 21st of March. I told him I did not agree with this and would contact the Operations Director as I had 20 annual leave days available to the best of my knowledge. I called him at 9.41 on the 10th of March. There was no answer, I left a voicemail and I never received a call back. I then received a call on the 11th of March from Sales Manager to say I was required to attend a meeting with the Sales Director. I immediately called him to figure out what was the issue with me taking the annual leave I was entitled to. He made it clear the meeting was nothing to do with annual leave but was in relation to my future with the company. As I had a new baby at home I told John I could not commit to a meeting time at that point, but I would be in touch as soon as I had organised adequate cover for my wife. On the 14th of March I contacted the Insides Sales manager at 10.55am to say I was available to take the meeting with John at his earliest convenience. An arrangement was made for the 15th of March at 9.30am. I attended the meeting and was told my contract was to be terminated. At the meeting I told the Sales Manager I was not happy with this and would appeal the decision. He instructed me to put this in writing. I sent an email on 18th of March. He responded to the mail and also mentioned that my P45 and final payslip would be issued shortly. I received a severance agreement email on the 23rd of March. This specified my final payment and also asked for a return of the signed document and my access card. Both were returned by posted immediately. At this time (4/4/16 @ 12.06pm) I am yet to receive payment for March (usually paid on the last week of the month) nor have I received monies owed in accordance to the severance package or my P45. Note P60 from 2016 was never issued either. He has claimed that he was unfairly dismissed and has sought compensation.
Respondent’s Submission and Presentation:
They stated that the Complainant is a person of good character and got on well with his colleagues. During his probationary period it became clear that he would not achieve his sales targets. Following the appointment of a new Sales Manager it was decided in fairness to him that they would extend his probation in order to give him an opportunity to succeed. He agreed to this extension of six months. Unfortunately after three months of poor sales results it was decided that there was little point in continuing the employment. He was notified of the termination on 15th March 2016. He was given a severance payment and he signed a severance agreement in full and final settlement.
His claim is rejected.
Issues for Decision:
I note that the Complainant signed a severance agreement “in full and final settlement, satisfaction, release and discharge of any and all claims, actions or causes of action, liabilities or agreements, whether existing or contingent known or unknown and whether arising under statute, common law equity or otherwise arising out of the Employee’s employment or Contract of Employment and / or the termination of such employment….”
I note that he confirmed to the hearing that “nobody made him sign it”.
I note that he was not coerced into signing it in any way, albeit he stated that he felt obliged to sign it in order to receive the package.
I note in the High Court case Sunday Newspapers Ltd v Kinsella & Bradley (2008 19 E.L.R. 53) it stated, “in the instant case, the agreement is expressly stated to be in full and final settlement and that means what it says …
I note the Supreme Court in Doran v Thompson  IR223 stated, “Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly , and the other party has acted on it by altering his position to his detriment , it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and the he may be restrained in equity from acting inconsistently with such promise or assurance”.
Therefore I must find that the Complainant freely entered into a severance agreement and signed it and received a consideration (money).
Therefore I find that he has accepted this in full and final settlement of his dispute with his employer.
I note in the above High Court case it stated “to be in full and final settlement and that means what it says”.
I find that this was a full and final settlement and this precluded the Complainant from making a complaint concerning the termination of his employment.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a recommendation in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and under the Industrial Relations Acts
For the above stated reasons I recommend that this complaint should fail.
Dated: 12th December 2016