EMPLOYMENT APPEALS TRIBUNAL
Reagecon Diagnostics Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T O'Mahony B.L.
Members: Mr J. Hennessy
Ms H. Murphy
heard this claim at Ennis on 28th April and 5th July 2016
Claimant : Niall Casey, John Casey & Co Bindon Street, Ennis, Co Clare
Respondent: John Boylan, B D M Boylan Solicitors, Clarkes Bridge House, Hanover Street, Cork
The determination of the Tribunal was as follows:
The respondent contended that the Tribunal had no jurisdiction to hear the unfair dismissal claim as the claimant, signed an agreement for consideration on 6 February 2015, which contained a full and final settlement clause releasing the respondent from any further liability or litigation, including liability under the Unfair Dismissals Acts 1977 to 2007, in respect of her employment or its termination.
The determination on the preliminary issue, although made before hearing evidence on the substantive issue, is included immediately after the summary of the evidence on both issues.
Summary of Evidence
The claimant worked for the respondent initially through an agency from May 2004 to 13 June 2005, when she began to work directly for the respondent.
Friday 6 May 2015 was a busy and hectic day at work. At 2.10p.m that afternoon she received a phone call from the Operations Manager (OM) calling her to the training room. When she presented there the Managing Director (MD) was also present and she believed that they were about to assign her a new project. OM told her that he had bad news for her, that her position was being made redundant. She was speechless. OM gave her some documents to sign as well as two cheques already prepared covering her statutory entitlements and an ex-gratia payment in the sum of €1,500. OM told her that she did not have to work out her notice. She was shocked. The meeting lasted five to seven minutes. MD sat opposite her throughout the meeting and never uttered a word.
The documents were not read out to her and she was not told to read them. She was not given the opportunity to take them away to consider them or to obtain advice. She was staggered, pressurised and under duress and concluding she had no choice in the matter she signed the documents notwithstanding that she did not understand the meaning of some of contents. She was not very happy and they knew it. She only asked questions once she had signed the documents. She entered the room to meet someone she trusted and this is what was done to her. She was very upset when she returned to her office. She phoned her husband to collect her but did not tell him about having been made redundant until he collected her.
The claimant was the dangerous goods administrator, looking after the transport of dangerous goods by road and air. AB was her back-up and she trained him in. The two of them were certified to do this job but she was the senior person. None of the ten staff in the warehouse were chemists. She loved her work and always did a good job.
The claimant had no issues with the company. Along with other staff she accepted a pay cut in 2009 which, despite assurances to the contrary, had not been restored. She was given no indication that her job was at risk. She had the skills to undertake all the jobs in the warehouse department and was capable of working in other departments. No alternatives offers were made to her. Losing her job adversely affected her health and general well-being and has been on illness benefit for about the last nine months.
The respondent’s human resource manager (HRM) told the Tribunal that following a review in 2014 the Board of Directors decided that certain positions were to be made redundant. The company wanted to upskill and restructure its workforce and reduce its headcount. The respondent decided not to engage in consultation with those being made redundant. Four were made redundant on this occasion and three some eight months earlier. The Board made the decision and she is not on it. The respondent had no alternative suitable positions for the claimant. She was not replaced and her work was absorbed by the warehouse team.
Determination on Preliminary Issue
The Tribunal has to determine whether in signing the document attached to the letter of 6 February 2015 the claimant waived her right to bring a claim under the Unfair Dismissals Acts 1977 to 2007.
The relevant document attached to the letter of 6 February 2015 and signed by the claimant contained the following:
“In consideration of the payments received by me from Reagecon I acknowledge that I will become redundant on 3rd April 2015 and agree to accept the severance terms shown on the attached schedule in full and final settlement, release and discharge of any and all actions claims, contracts, liabilities and agreements (if any) as I may have against Reagecon … whether arising under Statute, common law equity or otherwise arising out of my employment and/or the termination of such employment by reason of redundancy.”
The document then went on to list several employment right statutes including, the Unfair Dismissals Acts, under which liability was purportedly excluded and it also contained the following paragraph:
“I acknowledge that I understand the effect and implications of this agreement and confirm and agree that I have been afforded the opportunity of obtaining independent legal advice regarding the contents and effect of this agreement”.
In Hurley v the Royal Yacht Club  ELR 225 Buckley J. in the Circuit Court considered a waiver clause in an agreement in the context of the Unfair Dismissals Acts and having concluded that there must be informed consent to such a waiver later in his judgment set out what this requires:
“I am satisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the employee. I am also satisfied that the applicant should have been advised in writing that he should take appropriate advice as to his rights, which presumably in this case, would have been legal advice. In the absence of such advice I find the agreement to be void.”
The Tribunal accepts the claimant’s uncontested evidence as to what transpired at her meeting with OM and MD (both of whom are members of management) on 6 February 2015. It was not an easy meeting for the claimant; she was unrepresented and on her own, confronted by two members of senior management who gave her the bad news that her position was being made redundant. It was very far from a meeting of equals. The claimant had no expertise or experience in such legal matters. The meeting lasted a mere five to seven minutes The Tribunal unanimously accepts that the claimant was “pressurised” and acting under duress when she signed the document containing the full and final settlement clause and that she neither had the requisite advice at the time nor was she provided with a fair opportunity to obtain such advice. Both OM and MD were fully aware of this when accepting the signed document from her claimant. Both managers must have been aware that an unfair advantage was being taken of her in the vulnerable position in which she found herself. Obtaining informed consent is not a matter of rushing through a number of cursory steps but rather a matter of making a genuine effort to enable the employee to take the necessary steps to realise the implication of what she is being asked to do when signing a document containing a waiver clause. The Tribunal is satisfied that informed consent was lacking when the claimant signed the document on 6 February 2015. Accordingly, the Tribunal has jurisdiction to hear the unfair dismissal case.
Determination on Substantive Issue
There was no witness before the Tribunal who could give evidence as to the process, or whether there had been any process, leading to the selection of the claimant’s position for redundancy. The Human Resource Manager was not in a position to demonstrate the reasoning or criteria for this purported redundancy. Thus, the respondent did not discharge the onus on it under section 6 of the Unfair Dismissals Acts. Accordingly, the dismissal was unfair and the claim under the Unfair Dismissals Acts, 1997 to 2007 succeeds.
Taking her loss into account, the Tribunal awards the claimant compensation in the sum of €15,000.00 under the above Acts. This sum is in addition to any other monies already paid to the claimant by the respondent in relation to the termination of her employment.
Sealed with the Seal of the
Employment Appeals Tribunal