ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019764
Customer Support Representative
A Technical Entertainment Company
Appeared in Person
Tom Mallon BL instructed by Matheson Solicitors
Complaints Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 21/02/2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
On 12 February 2019, the Complainant, a German National working in Ireland since 2010 submitted several complaints regarding her employment which ended by means of a Compromise Agreement on 31 October 2018.
The Complaints focussed on Discrimination on the grounds of race, Victimisation, Discriminatory Dismissal, Harassment and cited the most recent date of discrimination as 1 October 2018. Later that day, the complainant added a complaint of Constructive Dismissal.
The Complainant introduced her claims as a Lay Litigant and attended the Hearing in the company of a Support Person.
The Complainant was invited to make a written submission in support of her case. An outline submission was received the day before the hearing and shared with the respondent at hearing.
The Respondent submitted their replying submission on that day also and this was shared with the complainant in advance of the hearing
The WRC was in correspondence with the complainant throughout 2019 in relation to parallel claims in accordance with Section 101(4) (a) of the Employment Equality Acts 1998-2015.
On 25 November 2019, the WRC wrote to the complainant informing her that as she had not responded to the letter of 9 April 2019 and 41 days had passed, the complaint of dismissal under Employment Equality Act was deemed to be withdrawn and the case for Constructive Dismissal and other discrimination complaints (not related to dismissal) would proceed to adjudication.
On 23 January 2020, both parties were invited to attend hearing on 21 February 2020.
I have used my discretion under the Employment Equality Acts to anonymise this decision. The Claim under constructive dismissal is anonymised as a matter of course.
At the end of the hearing, I checked that the complainant was still available to receive her Decision at her submitted contact address. The Complainant confirmed her contact details, which were unaltered since February 2019 claim forms.
The Respondent made two Preliminary applications, which I have set out below.
Summary of Complainant’s Case:
The Complainant commenced work as a customer support representative on a full-time basis on 15 February 2010 and worked continuously until her employment ended through a Compromise Agreement on 30 October 2018, the latter weeks of which were recognised as Garden Leave. The annual salary was €30,000 and the last day worked was October 2, 2018.
Respondent Preliminary Issue 1:
CA -00026225001 Employment Equality Claims
Application of Section 101.
The Complainant was not familiar with this Section of the Act and disputed receiving correspondence from WRC which confirmed that the Discriminatory Dismissal Claim had been deemed withdrawn on application of S 101(4) (a) of the Act.
The Complainant argued strongly that she should be permitted to advance her claim for discriminatory dismissal and confirmed that she had particularised her claims under Employment Equality Legislation.
Respondent Preliminary Issue 2:
Signed Compromise Agreement is binding on the Complainant
The Complainant re-affirmed that her departure from the company was involuntary. She re-affirmed that she had been left with no choice in the face of the negative allegation levied by Ms A. She feared that she would be fired without financial support and formed the view that that the NDA provided a pathway to short term financial security while she sourced new work.
The Complainant submitted that the Agreement should be deemed null and void due to the duress she was placed under to agree to the NDA.
The Complainant wanted to be heard on her claims for Discrimination, Victimisation and Constructive Dismissal.
CA-00026225-001 Employment Equality Acts
The Complainant is a German National and loved her work at the Respondent Company. In providing an outline of her case, the complainant did not accept that her claim for Discriminatory Dismissal had been withdrawn in accordance with Section 104(4) (a) of the Act and contended that she had difficulty with her email system and had missed the notification of same.
The Complainant outlined that she had been placed on a Final Written Warning on 28 January 2018 which had a 1-year time span. She had not appealed this decision but had retained a sense of injustice on the topic.
A voluntary Redundancy Programme was announced at the business in October 2018. The Complainant expressed an interest in exploring her options in this regard and set up a meeting with the Company Human Resource Manager, Ms A for October 1, 2018. She was unsure what the programme might mean for her and was keen to secure information. She was not actively planning on leaving the business.
The Complainant attended the meeting with Ms A alone and received an explanation of the process in a “straightforward and objective manner “
Ms A went on to inquire into her plans post leaving and the complainant expressed a desire to eventually continue her studies abroad. Ms A then asked her to confirm a projected leaving date, to which the complainant responded that she intended to repay time owing and ideally leave by end of November.
The Complainant submitted that she had been unprepared for the radical change in Ms as demeanour at this point. Ms A told her that her leaving was a certainty and the choice surrounded leaving with or without a severance payment. This frightened the complainant.
Ms A gave the details of the monetary settlement proposed.
The Complainant then observed a change in Ms A’s tone as she went into the topic of application for Job Seekers Benefit. Ms A went through the details of this process only to then direct the question at the complainant of “Why would the Irish Tax Payer pay for you? “as she had formed the view that the complainant had been avoiding work at the business. Ms A went on to threaten the complainant with dismissal and wanted the leaving documents signed immediately and without recourse to advice. The Complainant submitted that she was scared by the changes she witnessed in Ms A s erstwhile professional stance.
This Meeting which started at 4pm lasted 20 -30 minutes, and the complainant demanded time to think about what she had experienced. She worked on until 8pm that evening and discussed the proposed business transaction with her parents over the phone later that evening.
The Complainant outlined that she believed that she had been left with no choice outside acceptance of the offer which was tabled on October 1. She feared being cast out with nothing and submitted that she had signed a Non-Disclosure agreement the next day, October 2 under duress. This meeting, which she attended alone, commenced at 10.30 am and lasted 10 -15 minutes and her signature was witnessed by a company employee. She recalled that Ms A was amenable at this meeting.
The Complainant received the financial terms of the Agreement on October 30.
The Complainant submitted that she had been treated unfairly as she was rushed out of the business in advance of a more favourable “leaving package “which would have yielded her an additional €13,000 based on the eventual revised criteria. She was informed of this information on November 26, 2018 by a colleague. The Complainant concluded that the “leaving package “she accepted had been misrepresented by Ms A and she had been “pushed into an anxiety provoking situation “the Complainant wrote about her regret at this turn of events.
The Complainant subsequently took legal advice and placed a copy of a completed ES1 dated November 30 ,2018 before the Respondent. This submission referred to a perceived discrimination on grounds of race and a complaint of harassment. the ES1 was accompanied by an extensive written submission which I have summarised as:
The Complainant recalled having an omnipresent anxiety and sense of being undermined throughout her employment and was taken advantage of for not having Family /social support in Ireland. She submitted that this was reflected into the meeting of October 1, where she was informed that she did not deserve job seekers allowance.
The Complainant went on to draw from a chronology of events from 2014-2015 which revolved around her experience of Performance improvement plans. This course of action adopted by the Respondent differed from how the complainant thought things ought to have advanced at the time.
The Complainant went on to recall an Investigation into her work practices in 2017. Her recall centred on “flimsy evidence” which had informed Disciplinary sanctions, but these were arrived at via disciplinary hearings where she had to communicate for lengthy periods in English language.
The Complainant went on to reflect on some personal difficulties running side by side with some performance issues of a reduction in work Statistics which culminated in a final warning.
The Complainant went on to incorporate the latter part of this document into her complaint to the WRC on February 12, 2019.
The Complainant was aggrieved that this ES1 form had not triggered a response from the Respondent.
During cross examination, the complainant confirmed that she had discussed the proposed compromise agreement with her parents and Counsellor on the evening of October 1, 2018, while the meeting stood adjourned.
The Complainant confirmed that the details of the Non-Disclosure Agreement (NDA) had sunk about an hour later but she wished the context of the agreement made to be understood that she felt that she had no choice. the gun was to her head and by at least accepting the financial offer, she would have some money. She knew that she would miss the friends that she had made at work.
The Complainant denied that she had been presented with a draft of the NDA at the first meeting on October 1. She was aware that a document existed, but she had not seen it. The financial sum offered had been quantified but details of actual termination were not available.
She did not recall agreeing to a waiver on pursuing claims associate with her employment. She recalled that health Insurance had not been mentioned. She recalled feeling overwhelmed.
The Complainant had not appealed the final written warning of January 2018.
In answer to Counsels queries on the protocol on normal progression from employment to Welfare in a redundancy setting, the complainant was dismissive of this rationale as she recalled that she had been met by an emotional and enraged Human Resource Professional (Ms A) which did not justify her ill treatment.
Counsel asked the complainant if Ms A had mentioned whether anyone working in Welfare were of the same opinion? The Complainant narrowed the response to Ms A querying why the Irish Tax Payer should pay for her? It was not directed at Welfare Staff.
The Complainant confirmed that she had understood the meaning and accepted the NDA. She confirmed that she had anticipated the safe passage of the €10,000 throughout October 2018. The Complainant disputed the enforceability of the NDA as her leaving was not strictly her choice.
She sought her claims of discrimination considered on their own merit. She did not cite a specific comparator. The Complainant gave evidence on how she believed that she had been unfairly treated by the respondent
The Complainant confirmed that she had taken legal advice from Mid-November and had filed her complaint on November 30 but had not tested the viability of the NDA until then.
The Complainant confirmed that she had not raised a grievance in the aftermath of October 1 and 2 discussions, she received the settlement on October 31.
The Complainant confirmed that she was permitted a representative in earlier Disciplinary meetings but had decided against taking a representative to either Oct 1 or Oct 2 meetings. In her written submissions, she outlined her residual regret at this decision.
The Complainant did not make a claim for Job Seekers Benefit.
The Complainant submitted that she had suffered trauma, while working for the Respondent and submitted a Medical report dated 9 October 2019 which reflected a PTSD diagnosis.
CA -00026227-001 Claim for Constructive Dismissal
The Complainant submitted that she was compelled to leave her employment on 31 October 2018. The Complainant submitted that she had commenced new work on 28 January 2019. The Complainant sought compensation as her preferred redress and clarified that she had not been fit for work in the immediate aftermath of her departure from the respondent employment.
The Complainant requested that her Nov 30, 2018, ES1 submission, in relation to the claim for discrimination contained a lot of what she wanted to draw on in this a claim for constructive Dismissal.
She gave a written account of how she had been questioned to the course of her work history which had not been justified or fair. Together, this caused her to feel completely undermined and unwanted.
Again, the complainant pointed to how these feelings were captured in the October 1 and 2 Meetings in response to her expression of interest in a voluntary severance package.
The Complainant submitted that she had been singled out during this exploratory exercise and called lazy and a burden on the Welfare state of Ireland. She was highly offended by these allegations which she determined to be unfounded.
The Complainant then referred to the negative impact of the meetings immediately prior to her departure, where she believed that she was managed out and not permitted to remain. She took Ms A’s comments as highly wounding and hurtful as she had never avoided work or omitted to pay taxes as required.
The Complainant submitted that she had been too scared not to sign the NDA as she had been placed in a no-win situation by Ms As’ remarks which she had not deserved. The Complainant submitted that hundreds of staff had left the business. She queried the performance rankings attributed to her 2013-2017 and contended that her final written warning was unwarranted.
The Complainant sought the redress option of compensation .
Summary of Respondent’s Case:
The Respondent operates a Technical Company and has denied all claims.
Preliminary Issue 1:
CA -00026225-001 Employment Equality Claims
Application of Section 101.
Prior to hearing on January 13, 2020, the Respondent had sought that as the entirety of the Employment Equality Act had referred to the complainant’s dismissal and this had been withdrawn by the application of Section 101(4) (a) of the Act. Therefore CA -00026225-001 should be considered withdrawn. Failing this, the complainant was requested to submit a detailed submission on her claims.
Counsel for the Respondent opened by disputing the viability of the claims as submitted by the complainant under her first complaint lodged at 14:35 hrs on 12 February 2019. As the claim for Discriminatory Dismissal stood withdrawn, all aspects of the 12 February complaints of discrimination, referred to the circumstances of dismissal and as such ought also to be considered as withdrawn.
In referencing the chronology cited in the Equal Status Act complaint, Counsel submitted that these events were, “without exception, statute barred and out of time”.
On 17 February 2020, I wrote to the complainant seeking that she would particularise her remaining claims under the Employment Equality Act.
Counsel sought that the claim for Unfair Dismissal would now be recognised as the sole live claim. If the WRC intended to proceed with the Equality claim a direction on the need to particularise the claim should issue.
Preliminary Issue 2:
The Respondent submitted that the complainant had not been dismissed and instead the employment had terminated by agreement under the auspices of a Compromise Agreement. The financial settlement received by the complainant has been retained and no offer made to return the award.
The Agreement provided that the complainant would not prosecute any claim whatsoever against the Respondent under either the Unfair Dismissals Act and/or Employment Equality Act and the complainant must be recognised as bound by this Agreement. This negates the jurisdiction of the WRC in both complaints.
Counsel submitted that a signed Compromise Agreement” is valid and does not fall foul of Section 13 of the Unfair Dismissals Act. In this, he relied on Hurley V Royal Yacht Club  ELR 225, where the complainant had signed an agreement accepting certain payments “in full discharge of all claims” against the Respondent. Buckley J in the Circuit Court held that the claim for unfair dismissal could proceed as once the respondent dismissed the complainant, he was entitled to the benefit of the Act.
Section 13 (voidance of certain provisions in agreements)
A provision in an agreement……. shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with any provision of this Act
Did not prevent agreements under the Act, however, the employee must give a full and informed consent an is entitled to be advised of his entitlement under Employment Protective Legislation and these must be delineated.
Counsel contended that the Respondent had been very careful to inform the complainant of her rights and complied with their legal obligations. The Respondent did not dismiss the complainant. She elected to both explore and eventually accept the terms of the company voluntary severance package. Dismissal was not in contemplation for the respondent.
The Respondent drew attention to the wording of the referring clause 1.2 of the Agreement relied on .
Payment to the Employee by the Company of the sum specified at paragraph 1.1 shall be in full and final settlement , release and discharge of any and all actions or causes of actions , claims , contracts, liabilities and agreements( if any ) as the Employee may have against the Company and /or any associated undertaking, their employees, officers, shareholders and agents , whether arising under Statute , common law, equity or otherwise arising out of the Employees employment and/or the termination of such employment
16 Named Statutes/Regulations were appended in Section 1.3. Both the Employment Equality Act 1998-2008 and Unfair Dismissal Acts 1977 -2007 were specifically comprehended.
4.1 and 4.2 covered access to Independent Legal Advice.
The Complainant was advised to take independent advice and acknowledged this by her signature to the Agreement. This Agreement was free standing and not linked to a dismissal in any way.
The Respondent objected to the complainants stated desire to resile from the Agreement on the grounds of her latter day “Buyers regret”
The Complainant was not placed under pressure to sign the compromise agreement and would not have been prevented from remaining in her position until a better offer came along.
Given that the Complainant had accepted that she was bound by the terms of the NDA/ Compromise Agreement, The Respondent sought a Direction that the Agreement was enforceable, and that the WRC lacked jurisdiction in such instance .
Substantive Case: Employment Equality
The Respondent submitted that the complainant had not particularised her claim outside the circumstances which pertained to her dismissal and that earlier references to her treatment at the business were manifestly out of time.
CA -00026227-001 Constructive Dismissal:
The Respondent denied dismissal. The Respondent opened a Voluntary Severance Programme to all employees who held at least 5 years’ service between 25 September an 9 October 2018. This provided a voluntary departure in return for an ex-gratia payment, compromise agreement, inclusive of a valid waiver of claims. The Respondent viewed the programme as a positive initiative to ground career choices, mobility or education.
The normal practice of administering this scheme commence with an expression of interest by an employee. A meeting with Human resources would follow to inquire into the employee’s reasons for leaving and to prepare the employee for the post-employment pathways, inclusive of the impact of a waiting period for benefits post voluntary severance.
The Compromise Agreement is predicated on the employee being advised to take legal advice.
On 30 September 2018, the complainant expressed a non-binding interest in the Severance Package and requested a meeting with Ms A.
The meeting was scheduled for the next day and as standard practice, the complainant was requested to declare her reasons for seeking to avail of the programme? The Complainant indicated she wished to resume education and was offered some information on what the Department of Social Protection may seek from her in the context of her leaving and prior to accessing benefits.
The Complainant sought leave to discuss the matter with her Family. She was also advised to take legal advice.
The meeting reconvened at the complainants request the following day and the compromise agreement was signed in the presence of Mr B, a Human Resources staff member. The Complainant left employment on that day and was paid until October 30. She received a €10,000 ex gratia payment as manifestation of the agreement, against which she agreed that this was in full and final settlement of all claims.
The Respondent submitted that the complainant was bound by this agreement and sought a direction to dismiss the claims.
Evidence of Ms A, Human Resources Manager
Ms A outlined that the Respondent company employed 224 workers. She had been with the business for 12 years, the last 9 in Human Resources. The Company employs workers from over 36 different countries.
Ms A outlined the details of the Autumn Voluntary Severance programme. Ms A agreed to meet with the complainant as she had expressed an interest in leaving. She calculated her projected payment as €10,000 and presented the complainant with a Draft Agreement for her consideration at the meeting on October 1.
This was her typical practice for all employees who had expressed an interest in taking the package. In addition, she asked the complainant about her intentions post leaving and she told her that it was her wish to remain in the city and return to education. A further conversation followed on the anticipated form filling which would be required for job seekers post the lull of 6 weeks associated with voluntary redundancy.
Ms A denied that her attitude towards the complainant changed. She denied that she had accused her of being a burden on the welfare state. the Complainant asked for time to consider the offer an discuss with her parents. Ms A submitted that there was no pressure on her to sign the document.
Ms A completely refuted telling the complainant that “she would be out by November “The Complainant had not been brought to her attention and she had no reason to anticipate her dismissal.
The next morning, she ran into the complainant in the lady’s bathroom between 8.30 am and 9.30 am on the 5th floor. The Complainant expressed her willingness to sign the Agreement and Ms A reconvened the meeting for 10.30 am at her request.
The Complainant signed the Compromise Agreement and did not raise any issues. Her signature was witnessed on completion by Mr A, a HR staff member.
In response to a question from the complainant, Ms A denied treating any non-national in an inappropriate manner. Ms A confirmed that the Autumn Severance Programme had yielded 16 leavers from the Company.
Findings and Conclusions:
I have listened carefully to both parties’ presentations at hearing. I have also considered both parties written submissions.
The Complainant has raised several complaints of discrimination, victimisation and harassment. The complaint on discriminatory dismissal was formally deemed withdrawn in November 2019.
The Complainant has also raised a complaint of Constructive Dismissal. All complaints have been rejected by the Respondent.
The interface of the ES1 submitted by the complainant to the Respondent one month after the employment had concluded was misleading in the case. This course of action is derived from a complaint on the provision of goods and services under the Equal Status Acts 2000-2015.
These Acts make it unlawful to discriminate when providing goods and services.
The Complainant appears to have received incorrect legal advice in this domain. The Respondent acknowledging receiving the ES1 form complete with written submission. They did not make a response, and this upset the complainant.
I found it regrettable that this action so close to the conclusion of the Compromise Agreement did not prompt even a clarifying response from the Respondent. I found it unusual that they did not lead with arguments on the Compromise Agreement at that time.
When the Complainant took the next step of referring her case to the WRC, she had broadened her claim considerably from that encapsulated on the ES1.
The Respondent made two Preliminary Arguments in the case.
1 Employment Equality Act
That as the circumstances complained of were centred on the Dismissal and that aspect of the complaint was deemed withdrawn in November 2019, all associated complaints should be deemed withdrawn.
Failing this that the complainant should be placed on notice that she is required to particularise her complaints under Employment Equality Legislation.
Section 101(4)(a) of the Act provides that:
(4A) (a) Where an employee refers —
(i) a case or claim under section 77, and
(ii) a claim for redress under the Act of 1977,
to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i)shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.
(b) In this subsection —
‘Act of 1977’ means the Unfair Dismissals Act 1977;
‘dismissal’ has the same meaning as it has in the Act of 1977;
‘relevant date’ means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.
I have found that the provisions of Section 101(4)(a) was correctly applied in this case.
A careful reading of both claims submitted on 12 February 2019 indicated a very high level of cross over and repetition. I found it difficult to dissect the respective claims. It was for this reason that I requested that the complainant particularise her claims under the Employment Equality Acts. I received an outline submission largely reminiscent of the ES1 form submitted on November 30, 2018.
The Complainant had difficulty accepting the application of S 101(4) (a) of the Act and insisted that she wanted to be heard on her claim for discriminatory dismissal.
I did not agree with the Respondent submission that the complainant should be curtailed on the other complaints of Victimisation, Harassment and Discrimination on race grounds and the complainant was invited to state her case on these complaints. She did so.
The Complainant clarified that while she believed that her nationality was instrumental in how she was treated both during and at the end of her employment, she did not particularise incidents of victimisation or harassment within the cognisable period from August 12, 2018. While the Complainant referred to a chronology of events, she did not establish a continuum in this chronology. I am therefore bound to examine the first complaint in accordance with Section 77(5)(a) of the Act.
Preliminary Argument 2
The Respondent submitted that the Complainant was bound by the terms of the Compromise Agreement concluded with the Respondent on the morning of October 2, 2018. The Complainant had accepted that the €10,000 paid was in full and final settlement of all claims against the company and was governed by an “informed consent “This prohibited her cause of action on both claims at Adjudication. The Complainant had retained the ex gratia payment and had not contested it until many weeks later and only after confirming her acceptance. The Respondent submitted that this action did “not fall foul “of Section 13 of the Unfair Dismissals Act.
The Complainant did not accept this viewpoint. The Complainant submitted that the agreement was void due to the duress she had been placed under by Ms A when she confronted her with threats on October 1. These threats had a traumatic and detrimental impact on the complainant causing her to contend that she could not be bound by the terms of the Agreement.
Neither party presented a contract of employment in this case. The Respondent exhibited the signed Compromise agreement dated October 2, 2018. The Complainant accepted that this was a true copy of the Agreement, albeit that it was concluded under Duress.
For my part, I have decided to examine the circumstances surrounding the meetings of October 1 and 2, 2018. I have also decided to examine whether informed consent has been a factor in this case?
A careful interpretation of duress suggests that someone forces you or threatens you to do something.
The Respondent took the hearing through the seminal case of Hurley V Royal Yacht Club  ELR 225, which stated settled law on the necessary steps in concluding a severance agreement in terms of legal advice and statement of employment protection legislation.
In an early case of an agreed exit settlement in Fitzgerald and Pat the Baker  10 ELR 227, Former Chair of EAT, Dermot Mc Cathy, distinguished two types of settlement agreements, one which was prefaced by meaningful negotiations, where advice was sought and given to one which was essentially imposed and without the earlier latitudes. The EAT on that occasion found that that a Depot Manager through his demotion had been constructively dismissed as the settlement agreement was held to be void. Section 13 of the Unfair Dismissals Act as amended applied.
Some 9 years later in Sunday Newspapers ltd V Kinsella and Bradley  19 ELR 53, the High Court held that an employee can contract out of statutory rights. In allowing an appeal to the High Court on a point of law, Smyth J held that
An employee being offered a severance package was entitled to be advised of his entitlements under the employment protection legislation and any agreement or compromise should list the various applicable statutes or at least make it clear that same had been considered by the employee. In addition, the employee should have been advised in writing to seek appropriate advice as to his rights. In the absence of such advice, a severance agreement waiving the statutory rights of the employee would be void Hurley applied.
I noted that the complainant requested to meet for a “non-binding “meeting to explore an exit package on Sunday, September 30. This suggested to me at least that the complainant was clear it was a without prejudice meeting.
The Meeting took place some 24 hrs later and the employment had come to a material end by lunchtime on 2 October 2018. A cumulative 44-hour process. A period of paid “garden leave “covered the remainder of the month. I found this to be very rushed and hardly necessary given the outer closing limit for the programme of October 9. In addition, it seemed that the complainant was rostered until the Wednesday of that week. The respondent did not exhibit a Guidance note for an employee interested in voluntary exit. Given the high numbers who had already exited, I found this unusual.
The Complainant was one of 16 who exited through the Autumn Package, it may have helped her to have a Guidance Document to accompany her through the challenging steps of exit.
I observed that the complainant held a very high sense of injustice in how her working life had been managed by the respondent, yet, she had not challenged this through the grievance procedure or even at the final written warning stage. This sense of injustice was never properly objectively validated, and the complainant retained it untested to the end of her employment. She has reflected that her entire working tenure was tainted by this injustice and misjudging of her efforts. Yet, she presented at hearing as a highly articulate and focussed complainant.
The Complainant disputed Ms as version of events on October 1. She contended that she had been targeted and managed out. I had some difficulty with this assertion as the complainant returned to work post the 4 pm meeting on October 1 and worked until 8 pm. This suggested, at least an air of normality. I accept Ms As evidence that the complainant imitated the request for the follow up meeting.
I found an inconsistency in how both parties recalled the timing of the discussion plans and welfare payments. From her memory, the complainant placed these at day 1, Oct 1.
From Ms A s notes, it places this discussion on day 2 i.e. Oct 2. This was an important consideration for me as the complainant submitted that her duress originated from a day 1 conversation on her poor performance and projected burden on the Irish Welfare State. I listened very carefully when both parties gave evidence on this point and while I find that the complainant understood that she had been criticised by Ms A on day 1, I have not established that these events happened as the complainant remembered.
I found it unusual that given the gravity of her recall that the complainant did not take a contemporaneous note or raise any issue regarding this treatment in the 4 weeks that followed and before she received the financial settlement. I saw this as a “safe period “for queries or appeal.
Based on Ms as recall of events and on the balance of probability, I find I must resolve the conflict on this sequence of events in favour of the Respondent. I was particularly struck by Ms as insistence that the complainant had been provided with a draft compromise agreement and her recall of her positive demeanour on Oct 2. It is of cardinal importance for me that the complainant is not on record as asking any questions prior to signing the Compromise Agreement.
The Complainant submitted that she had worked until 8 pm on October 1 before speaking to her advisors regarding the best course of action for her. I asked her if she had slept that night and she answered “a little “I am conscious of the time zone variation for some of these conversations and the complainant was bound to be tired as a result.
However, she recorded her signature to a very important document without securing her own witness. I understand that she now regrets this action. I am bound to consider whether the complainant was placed under duress which negated the signature she recorded on the Compromise Agreement? In so doing, I must consider the facts as they happened.
I accept that the complainant was distressed during October 1 and 2. However, I found that she had a working knowledge of what she referred to as an NDA and what I call a Compromise Agreement .I accept that she had retained a large number of unhappy memories of her work with the respondent , which had not found their way into the company policy framework for conflict resolution . However, she had been placed on a final written warning in January 2018, which suggested that the respondent had had recourse to the Disciplinary procedure. However, this process was dormant on Oct 1 and the complainant was looking at an expiration of this warning within a 4-month period.
On a careful analysis of the facts, I have not identified visible duress. The complainant did not submit a contemporaneous medical report or witness accounts. By her own admission, she told the hearing that she had comprehended the terms of the compromise agreement as they pertained to her. She clarified that her lingering levels of dissatisfaction were fuelled by Part B of the Autumn Severance which was more favourable to beneficiaries.
In Board of Management, Malahide Community School and Dawn Conaty  IEHC 486, Simmons J referred to the parameters of Section 13 of the Unfair Dismissals Act in a case under Fixed Term Legislation.
On its literal meaning, section 13 precludes an employee from ever contracting out of their rights. However, there is case law which suggests that—at least in the context of settlement agreements —an employee may be entitled to waive their rights based on informed consent. The school cannot avail of this in its appeal. This is because it is common case that the teacher had not been informed that the contract of October 2015 would entail the loss of her acquired rights. Indeed, it appears that both the school and the teacher were labouring under the mistaken belief that the teacher did not have any acquired rights.
The instant case is distinguished on the facts. The Complainant was provided with a written identification of the Employment Protection Legislation which was waivered in the compromise agreement. She was also advised in writing that she should take appropriate advice as to her rights. The Complainant confirmed that she did not take the opportunity to secure legal advice prior to signing the Agreement at 11 am on Oct 2, 2018 but agreed that she had been invited to do so. The Document which led to the eventual agreement began in template fashion and ought to have been personalised to the gender of the beneficiary.
Section 4.1 of the Compromise Agreement provides:
The Employee confirms and agrees that she has been given enough time for obtaining legal advice regarding the contents and effect of the agreement.
Section 4.2 contains a waiver clause, which confirmed that the complainant understood the effect and implications of the agreement.
I have found that the complainant rushed her exit from the company. I appreciate that she believes that this was orchestrated, and that belief is genuine for her.
However, on the evidence before me, this was not validated. I identified a high level of anxiety, distress and profound regret that she had left when she did, but this does not amount to the external pressure I would have expected to see in Duress.
While I have stated my reservations on the speed of the exit and lack of a “ Map” or Guidance Document on what exactly an employee could expect from voluntary exit, which may have mitigated the complainants complete reliance on oral dialogue , I must find that her consent recorded on October 2 in the presence of Ms A and validated by Mr B was an informed consent and it has the power to bind the complainant to what she agreed on that day .
The Labour Court in Starrus Eco Holdings ltd T/A Greenstar and Gerald O Reilly UDD 1868 considered an application from Counsel for the complainant “to go behind the waiver agreement “based on Respondent alleged misrepresentation. The Court declined jurisdiction to go behind this waiver.
Based on the facts of the case, I must also decline jurisdiction to go behind the waiver recorded by the parties on October 2, 2018.
CA -00026225-001 Employment Equality
I have found that I do not have the jurisdiction to look behind the waiver recorded in this case. I found that the complainant is bound by her informed consent recorded on October 2, 2018.
Dismissal of claim.
77A. — (1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission] specifying the grounds of the appeal.
(b) On the appeal the Labour Court may affirm or quash the decision.
On that basis, I have decided to dismiss the complaints of Discrimination on race grounds, Harassment and Victimisation as misconceived as the Compromise Agreement recorded on informed consent negates their progression.
The claims are dismissed.
CA -00026227-001 Constructive Dismissal
I have found that I lack jurisdiction in this case as the complainant recorded her acceptance of a Compromise Agreement on informed consent. The provisions of S13 of the Unfair Dismissal Act do not defeat the claim.
I find that she is bound by this agreement. The Complainant is not permitted to advance her claim for Unfair Dismissal.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have dismissed the claim in accordance with the terms of Section 77 A of the Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have found that I lack the jurisdiction to progress this case in the face of a Compromise Agreement recorded on informed consent. Kinsella and Brady applied.
Dated: 26th March 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Claim for Constructive Dismissal, Claim for Discrimination on grounds of Race, Harassment, Victimisation