Complainant

Respondent

Parties

Natalia Balajova

Tesco Ireland Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028088-001

26/04/2019

The respondent operates a large warehouse facility in the Dublin area, employing in the region of 600 staff. The complainant was employed with the respondent since 30 March 2007 initially as a supply chain clerk. In November 2013 she took up a position as warehouse manager, firstly on secondment and a year later on a substantive basis.

The complainant sought a voluntary severance package in December 2017 and accepted a settlement sum of €18,000 in February 2018. Two months later a number of colleagues accepted severance packages of varying amounts.

This complainant was taken under the Gender and disability grounds.

The complainant submitted that she accepted a voluntary severance inclusive of all statutory entitlements and in full and final settlement of all calms against the respondent on 16 February 2018. The settlement sum of 18,000 was taxed according to Revenue rules.

The complainant submitted that on or around April 2018 two months after she received her voluntary severance, three of her colleagues also accepted voluntary severance packages.   The complainant submitted that it subsequently transpired that their severance packages were substantially higher that the complainants. One of the colleagues, the nominated comparator received a severance of €40,302.08.

The complainant submitted that the difference in the severance amounts was down to her gender. Any claim in reference to the disability ground was withdrawn.

As a preliminary matter the respondent submitted that the complainant waived her right to lodge a claim under the Employment Equality Act by signing a without prejudice Waiver and Release document in full and final settlement of all or any claims arising out of her employment with the Company.

As to the substantive matters, the respondent submitted that the difference in the severance payments was not down to gender rather it was down to a number of other factors.   Over the period of about one year (covering two financial years however) seven individuals all of the same grade were provided with severance packages. The complainant and one other male colleague sought severance packages and were provided with identical packages, the other five individuals (including one female) were offered a severance package as a result of restructuring of the management team.

The respondent also submitted that the complainant and the other individual received the same amount but applied for their packages in a different financial year. The respondent submitted that these two factors accounted for the difference in the level of the severance amounts.

CA-00028088-001 - Preliminary matter:

The respondent contended that the complainant has waived her right to lodge a claim under the Act by signing a without prejudice Waiver and Release document in full and final settlement of all or any claims arising out of her employment with the respondent, including the Employment Equality Acts.

The respondent submitted that in early December 2017, the complainant verbally requested an ex-gratia payment as she was leaving her employment. This request was in the context where the complainant was clearly aware that Mr A had left employment a few months before, as she referred to Mr A when she made her request and said that she knew that Mr A had been paid an ex-gratia payment.

At the time of her request, the complainant, represented by her union, had already commenced a claim against the respondent under the Organisation of Working Time Act 1997 in relation to Sunday premia. The respondent engaged with the complainant concerning her request for a severance payment and in that context indicated that she would have to withdraw her WRC claim. As early as December 2017, some two months before she left and while represented by her union, the complainant was in possession of the severance paperwork including the standard company waiver and release. On 18 December 2017, the complainant emailed the Operations Manager “As discussed please see attached official documents for my buy out (18k). I have a signed version for you as well. If there is anything missing let me know”. She subsequently emailed the Operations Manager on 22 January 2018 with some further questions regarding the severance and received a reply before signing the severance agreement.

However, the proposed ex-gratia payment, and therefore the complainants leaving date, was delayed as the respondent required concrete evidence that the WRC claim had been withdrawn. The complainant said that she had asked her union to withdraw the case and eventually she emailed her union in 9 February 2018 saying “as discussed on the phone, I would like to withdraw my case in relation to Sunday premiums not being paid by the respondent which hearing is due on 19/2/18. I have accepted company severance package which is dated 16/2/2018”. On foot of this instruction, her union representative emailed the WRC on 9 February 2019 and asked that the written confirmation that the case was withdrawn be issued as quickly as possible as “(the complainant) is taking a severance package from (the respondent) on the 16th February and the company will not process same until they receive written confirmation”. The WRC written confirmation of the withdrawal issued on 12 February and was forwarded the same day by the complainant to the respondent.

In response and on 12 February 2018, the HR Manager emailed the complainant her final severance paperwork for review. The complainant replied by email the same day and pointed out an error with her date of birth and asked for the document to be amended. With the exception of the date her employment ended, this document was exactly the same as the complainant had received and considered in December 2017 at a time when she was being represented by her union.

The complainant was given ample time to consider the contents of the agreement and was advised to seek legal advice before signing.

The respondent submitted that the principles of a settlement agreement have been set out in Hurley v the Royal Yacht Club [1997] ELR 225  where Buckley J. in the Circuit Court stated:  “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.” 

It further submitted that Smyth J in Sunday Newspapers V Stephen Kinsella and Luke Bradley (2008 ELR 53) endorsed the reasoning in the Royal Yacht Club case, when it was held that a Party could enter into an agreement in relations to his or her statutory rights and the question of whether or not such rights had been compromised was a matter for the proper construction of the agreement itself. Any agreement should list the various applicable statutes or at least make it clear the same had been considered by the employee. Given that in this case, the agreement the complainant signed was expressly stated to be in full and final settlement of any claims or potential claims under Employment Equality among other statutes, the Respondent would argue that her statutory rights have been compromised.

The respondent noted that the Waiver and Release document clearly sets out each Act that was applicable to the complainant. Similarly, the complainant was advised to seek legal advice and was given ample opportunity to source same and was in fact represented by the union at the time. The respondent contended that the complainant entered into this agreement with fully informed consent.  

In light of the above arguments, the respondent submitted that the Adjudicator does not have jurisdiction to hear this case. 

The complainant’s representative submitted on her behalf that although on the face of it she contracted out of the right to pursue actions under the Acts named in the schedule to the severance agreement, she contracted out of claims or potential claims.   However, the complainant’s representative submitted that as the complainant could not see into the future, this does not equate with contracting out from future claims but rather reflected any other potential claims that could have been taken at the time the complainant signed the severance agreement.

The complainant’s representative also submitted that as the complainant was represented at the time by her union, she did not receive legal advice as mandated in the Sunday Newspapers case (2008 HC 4/06). When the issue of ‘appropriate advice’ as per Buckley J in Hurley v the Royal Yacht Club was put to the representative, she clarified that in cases such as this case ‘appropriate advice’ on Employment Law matters means legal advice and could not be provided by a union official.

The respondent’s representative contested this view of appropriate advice, submitting that advice from a full-time union official with the benefit of an in-house legal advice capability constituted appropriate advice in relation to Employment Law matters.

Having considered the written and oral submissions in this claim, I note that the complainant was being advised by her union (a large union with an in-house legal department) at the time she sought a voluntary severance, she was in possession of the terms of the severance agreement for some two months including its stipulation to seek legal advice, sought a number of clarifications from the respondent before she signed the agreement and was being advised on her employment rights at the time. Having considered the matter of representation and advice and the caselaw submitted (as cited above), I cannot accept the contention that ‘appropriate advice’ can only be provided in the form of legal advice in Employment Law matters and the signing of a severance agreement.

Arising from the foregoing, I am satisfied that the complainant gave informed consent when she signed the severance agreement. Accordingly, I am persuaded by the respondents’ arguments and find that I do not have the jurisdiction to hear this matter further.

CA-00028088-001

My decision in relation to this complaint is that as the complainant has waived her right to lodge a claim under the Act by signing a without prejudice Waiver and Release document in full and final settlement of all or any claims arising out of her employment with the respondent, including the Employment Equality Acts, I am precluded from enquiring any further into this matter and this complaint must fail.

Severance payment, Informed consent, representation