EMPLOYMENT APPEALS TRIBUNAL
Waterford, Wexford, Education And Training Board Formerly County Wexford Vocational Education Committee
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Wexford on 19th February 2016 and 3rd May 2016
Claimant: In Person
Respondent: Mr Adrian Twomey, Gallenalliance, Solicitors, South-East Administration Office, Merrythought House, Templeshannon, Enniscorthy, Co Wexford
The determination of the Tribunal was as follows:-
This matter came before the Tribunal by way of a claim for constructive unfair dismissal pursuant to the Unfair Dismissals Acts 1977-2007.
The claimant commenced employment with the respondent on 6th May 1989 and her employment terminated on 31st October 2014.
The claimant instituted High Court proceedings on 21st December 2007 for personal injury and wherein she sought declaratory and injunctive relief against the respondent. These proceedings were settled between the parties by way of an agreement dated 16th September 2014. One of the terms of the said agreement dated 16th September 2014 was that the claimant’s employment would end on 31st October 2014 by reason of voluntary redundancy.
When the termination date arrived it appeared that the claimant did not wish to leave her employment and was willing to forego the lucrative settlement agreement towards this end. The respondent sought and was granted on 11th November 2014 an interlocutory injunction restraining the claimant from breaching the agreement dated 16th September 2014. The claimant was hospitalised at this time and did not appear at the injunction hearing.
There was a further agreement entered into between the parties on 16th February 2015 wherein the claimant agreed that the agreement dated 16th September 2014 was binding upon her, that she would take no further action that might reasonably be regarded as being in breach of that agreement and that the interlocutory injunction would remain in force ad infinitum.
The claimant had legal representation at the time of signing of both agreements.
The respondent made a preliminary application to the Tribunal that firstly the claimant was in breach of the High Court injunction granted on 11th November 2014 and secondly that the Tribunal had no jurisdiction as the claimant had compromised any claim regarding the termination of her employment by way of an agreement dated 16th September 2014 reinforced by the agreement of 16th February 2015. The injunction and the agreements were opened to the Tribunal.
Clause 6(d) of the agreement dated 16th September 2014 provides as follows:-
This agreement is full and final settlement of all claims howsoever arising as between the [claimant] and the [respondent]. The [claimant] further agrees that this agreement governs the termination of the [claimant’s] employment and relationship with the [employer] and undertakes not to institute any further proceedings.
The agreement of 16th February 2015 provided, inter alia, as follows:-
For the avoidance of doubt, the [claimant] confirms that she acknowledges that the said agreement is binding upon her and that she shall take no further action or make any further statements that might reasonably be regarded as being in breach of the said agreement.
The interlocutory Injunction of the High Court [dated 11th November 2014] shall remain in force ad infinitum... .
At the hearing on the first day, being the 19th February 2016, the respondent was requested to make a written submission on its application. At the resumed date, being the 3rd May 2016, the respondent opened its written submission again restating that the claimant is in breach of both contractually binding agreements, being the agreements dated 16th September 2014 and 16th February 2015, and in breach of the High Court injunction dated 11th November 2014.
The respondent’s position is that the claimant is legally estopped from continuing with her claim and that the Tribunal cannot proceed to hear it.
The respondent relied, inter alia, on the following:-
Sunday Newspapers Limited v Kinsella and Brady  ELR 53 where the High Court said it is “well established that statutory provisions in employment protection legislation prohibiting the contracting out of the statutory protections ...do not preclude severance agreements or compromises of claims”.
Minister for Labour v O’Connor unreported High Court, 6th March 1973 where it was stated that “the agreement is expressly stated to be in full and final settlement and that means what it says”.
Doran v Thompson  IR 223 where the Supreme Court stated that “[w]here 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 to allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and he may be restrained in equity from acting inconsistently with such promise or assurance”.
The respondent further submitted that the claimant was engaging in an abuse of process in that “her claim relates entirely to matters connected with her employment and the termination of same; all of which have already been the subject of proceedings before both the High Court and the Court of Appeal. In support of this submission, the respondent relied on Henderson v Henderson (1843) 3 Hare 100, Johnson v Gore Wood & Co  1 WLR 2558 and Cunningham v Intel Ireland Limited  IEHC 207.
The respondent also relied on various determinations of the Employment Appeals Tribunal and on a determination of the Equality Tribunal.
The claimant, relying on Stephens v Archaeological Development Services Limited (2010) IEHC 540, submitted that the fact she had instituted proceedings for personal injury to the High Court did not preclude her taking an action for unfair dismissal to the Tribunal. The Respondent stated that this decision relied on by the claimant “has absolutely no bearing on this case”.
The claimant further submitted that she was lacked capacity to consent to the agreements due to her mental condition at the time.
Determination on the Preliminary Application:
The Tribunal, by majority, finds that the agreement entered into between the claimant and the respondent on 16th September 2014 is in the nature of a severance agreement and that the conditions for enforceability of the agreement such as consent and legal advice have been satisfied. If the claimant wished to contest this agreement on the basis that she lacked capacity to consent that was a matter for the High Court. Accordingly, the Tribunal must accede to the respondent’s application that the Tribunal lacks jurisdiction.
The Tribunal, unanimously, accepts that the claimant wished to remain in her job and sought to repudiate the agreement dated 16th September 2014 but this is not a matter to be taken into consideration in the preliminary application.
The Tribunal, unanimously, further accepts that this is not a situation where the claimant took the benefit of the agreement and did not wish to take any burden in that the claimant was prepared to forego the benefits of the agreement in order to remain in her job.
The Tribunal finds that the decision of the High Court in Stephens v Archaeological Development Services Limited (2010) IEHC 540 relied on by the claimant entitled the claimant to bring a personal injuries action to the High Court and an unfair dismissal case to the Tribunal and may have been relevant but for the fact that the agreement entered into between the parties in the claimant’s High Court action dealt with the termination of the claimant’s employment albeit no dismissal claim appears to have been pleaded.
The Tribunal, therefore, finds that it does not have jurisdiction to hear the case and the claim under the Unfair Dismissals Acts 1977-2007 is dismissed.
The minority dissent finds as follows:-
The agreement dated 16th September 2014 failed to list the legislation that is to be excluded such as the Unfair Dismissals Acts 1977-2007.
The fact that the claimant was prepared to forego such a very favourable agreement is an indicator that she wished to remain in her job.
The claimant wished to remain in her job whereas some of the plaintiffs and complainants in the authorities relied on by the respondent had moved on to new employment.
That unlike some of the authorities relied on by the respondent the claimant appears not to have instituted proceedings for either wrongful dismissal or any action under employment or equality legislation. Rather it appears that the claimant instituted a personal injuries action albeit that she sought injunctive and declaratory relief regarding an internal process of the respondent.
The termination of the claimant’s employment was not ventilated in the High Court but rather was made a term of the settlement agreement of her High Court action.
That it was the respondent’s High Court action on 6th November 2014 and on 11th November 2014 which ventilated not so much the termination of the claimant’s employment in the courts but rather the enforceability of the agreement.
Determination on Costs:
In the written submission the respondent applied for the costs of witnesses expenses in accordance with SI 24/1968 (regulations 19-20) and SI 286/1977 to include the expenses already paid to the claimant’s former solicitor.
Regarding the expenses paid to the claimant’s former solicitor the Tribunal finds that this witness was subpoenaed by the respondent and was not a necessary witness. Accordingly, the Tribunal declines to award these costs to the respondent.
Regarding the expenses of the other witnesses the Tribunal does not find that the claim frivolous or vexatious and declines to award these costs to the respondent.
Sealed with the Seal of the
Employment Appeals Tribunal