ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035425
Parties:
| Complainant | Respondent |
Parties | Carol Murphy | Mj Flood Ireland Mj Flood Ireland |
Representatives |
| Claire Bruton B.L. instructed by Ronan Daly Jermyn Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039959-001 | 21/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00039959-002 | 21/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00039959-003 | 21/09/2020 |
Date of Adjudication Hearing: 10/05/2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 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.
Background:
The parties entered into a severance agreement following which the complainant referred the matter to the WRC. |
Summary of Respondent’s Case:
The respondent says that the complaint is barred by reason of waiver and the execution by the complainant of a full and detailed severance agreement on October 14th, 2020, in respect of which an ex-gratia amount of €10,920 was paid to her and all claims were waived.
The complainant commenced employment with the respondent on 26 June 2000. Her Contract of Employment is dated September 27th, 2013 and describes her position as “Work Control Administrator’. At the time of her redundancy, her role was Service Administration Supervisor (also referred to internally as Work Control Supervisor).
She was provisionally selected for redundancy in light of the severe financial impact of Covid on the respondent’s business. The Service Manager met the Complainant on September 14th, 2020, to advise her of this and this was confirmed in writing.
This letter invited her to a further meeting on September 16th, 2020, and specifically pointed out her right to be accompanied by a colleague or trade union representative at this meeting and her sister attended in this capacity.
Regarding this meeting, the Complainant noted in an email to management on September 21st, 2020,
“It was confirmed to me that you had considered all other options with regards to my employment and the only option available to me is redundancy. I agreed to accept redundancy and we then discussed what redundancy amount you were willing to offer me”.
Thereafter a process of an amicable termination of employment, on agreed terms, commenced.
Following that meeting, there was email correspondence between the parties. A draft severance agreement was sent to the complainant on September 22nd and she responded asking for further arrangements in regard to her reference. An updated version of the severance agreement-as per her request of September 23rd was sent to the complainant on September 24th; a further email following up was sent on September 29th.
There were further exchanges and then on October 13th, 2020, the complainant emailed HR stating that she had reviewed the contract with her solicitor and raised a query about confidentiality which was answered.
She then executed the severance agreement on October 14th, 2020 just shy of four weeks after having received the agreement. It contained provision for statutory redundancy, an ex-gratia payment and payment of notice
Clause 2.2 stated “in consideration of your acceptance of the Termination payment you agree to be bound by the terms of the Agreement.”
Clause8 stated: “You accept the Termination Payment and the other terms of this agreement in full and final discharge and satisfaction of any right, claim or dispute of any kind whatsoever which you have or might have against the Company, in relation to your employment, or its termination howsoever arising and whether under contract, common law, tort, statute, statutory instrument or any treaty, regulation or directive of the European Union, including but not limited to claims, inter alia:
8..1.1 Under the Unfair Dismissals Acts 1977-2015;
8.1.6 Terms of Employment (Information) Act 1994-2012; 8..1.14 Terms of Employment (Information) Act 1994-2012.
Clause 10 provided for Legal advice and related matters
“You confirm that the Termination Payment and the other terms of this agreement are adequate compensation for the discharge of the rights set out in this agreement, and you have executed this agreement having full knowledge of your legal rights and having taken legal advice on the terms and effect of this agreement. You further confirm that you have entered into this agreement without coercion or duress of any description.
The Complainant submitted the complaint form to the WRC on September 21st, 2020, prior to the termination of her employment and whilst she was awaiting a copy of the severance terms.
On the complaint form the complainant stated that her employmentendedonSeptember14th, 2020.
This complaint included three specific grounds: unfair dismissal (CA-00039959-001), terms and conditions of employment (CA-00039959- 002) and minimum notice (CA-00039959-003). Under the unfair dismissal complaint heading, the complainant stated that she was dismissed on September 16th 2020.
These complaints cannot proceed as the WRC has no jurisdiction to determine these claims having regard to the signing of a full and final settlement waiver by the complainant on October 14th, 2020 which expressly precluded such complaints.
A draft severance agreement was first provided to her on September22nd, 2020. There was further discussion and negotiation between theparties regarding the terms of any agreement. Indeed, she requested thatchanges be made to the standard severance agreement regarding her reference and the respondent agreed to those changes. The complainant subsequently requested moretimetoconsiderthetermsoftheagreementandtoseeklegaladvice and this was agreed. The complainant stated in her email of October 13ththathersolicitorhadreviewed theagreement.Afurtherquery was answered by email.
She executed theagreement and waiver in a full and complete manner. There was nopressure on her and she was informed that if she didnotdoso,the ex-gratia elementwouldnotbe paid.
She was afforded additional time to consider the settlement agreement, changes were made to the agreement at her request, clarification on the meaning of a clause was provided and no pressure was applied to conclude this agreement.
The complainant signedthe agreement despite having lodged a claim with the WRC (ofwhich the respondent was unaware) and this claim and any other claims (includingfutureclaims)couldnotbemaintained.Presumably she was advised ofsame by herlegal advisor.
The complainant provided her full and informed acceptance of its terms and implications and the benefits which accrued to her as a result, it is submitted that she is estopped from litigating these proceedings. She was provided with legal advice prior to the execution of the agreement, and made the respondent aware that her solicitor had reviewed the agreement before she signed it.
The respondent is entitled to rely on the waiver to completely oust jurisdiction of the WRC under the three Acts before it and to ensure that no litigation or proceedings can be maintained by the Complainant. There are public policy reasons for this approach being adopted to the within proceedings in which the Complainant seeks to ignore the waiver she executed and significant monies she has received and rather litigate the very proceedings excluded by the agreement and for which consideration applies.
In order to uphold its contention that the Workplace Relations Commission has no jurisdiction to hear the claim of unfair dismissal made by the Complainant the Respondent relies on a number of cases. In Hurley v Royal Yacht Club [1997] E.L.R. 225, Judge Buckley in the Circuit Court stated 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 applicant.” Judge Buckley also stated that the employee ought to have been given the opportunity to avail of legal advice.
It is clear that both of these considerations are provided in the waiver agreement and the Complainant clearly acknowledged that she had availed of legal advice prior to signing the agreement.
Reliance is also placed on the later decision of the High Court in Sunday Newspapers v Kinsella [2008] 19 E.L.R. 53 where Smyth J. held that the question of whether or not statutory rights have been compromised is a matter for the proper construction of the agreement itself. There can be no question from the language used in the agreement means that the within claims and or proceedings are excluded by virtue of being captured by the waiver agreement. Mr. Justice Smyth also stated that any settlement or compromise agreement should list all of the relevant applicable statutes and the employee be provided with an opportunity to seek legal advice. Again, the Respondent complied with these requirements and in executing the agreement the Complainant acknowledged both of these facts.
It is submitted that clearly adequate consideration was provided to the Complainant. The Complainant received more than her statutory entitlements and therefore consideration arises. She accepted such payments unconditionally. It has been established that consideration is required in order for a compromise or waiver agreement to be valid: PMPA v Keenan [1983] 1 I.R. 330.
Board of Management of Malahide Community School v Dawn Marie Conaty [2019] IEHC 486 concerned an employer school which required a teacher with more than a year’s continuous service (and who had thus acquired rights under the Unfair Dismissals Act) to sign a fixed-term contract; the school later argued that by signing the contract, the teacher had waived her rights under the Act.
In line with the case-law above, Simons J. held that statutory rights may be waived, but only where there is informed consent on the part of the employee and in general terms He noted that any agreement which purported to deprive an employee of rights which he or she had already acquired under the 1977 Act could only be characterised as an agreement which purported to “exclude” or “limit” the application of the Act.
Notwithstanding what appeared to be the literal interpretation, Simons J. accepted that the case law indicated that a “pragmatic” approach to the section's interpretation had been taken and that the courts had ruled that it was permissible for an employee to make an “informed waiver” of his or her statutory rights. He was satisfied that, on a “purposive” interpretation, it was open to an employee to waive his or her rights to pursue proceedings under the Act “if the waiver was given on the basis of informed consent”. There were two reasons for this: first, the public interest in ensuring that parties were able to resolve disputes without having to litigate to a conclusion was best advanced by this interpretation; and, secondly, an agreement to accept a particular amount in settlement of an unfair dismissal claim represented, “in a sense”, a vindication of the employee's rights under the Act.
Finally In Philomena Hennessy v Ladbrokes Payments (Ireland) Limited and Ladbrokes (Ireland) [2022] IEHC 60 the plaintiff had signed a waiver agreement after being made redundant but subsequently initiated proceedings seeking damages for injury she said was caused by work-related repetitive strain. The defendant argued that it had an absolute defence as the waiver agreement she had signed included waiving any cause of action she might have against her former employer. However, in that case, even though the agreement signed by the plaintiff stated that she had received independent legal advice, she had not and was not provided with any opportunity to seek it. Bolger J stated, “Had the plaintiff taken legal advice (as the agreement claims she did) then the defendant may have been entitled to rely on the waiver contained in the agreement.” That is precisely the situation in this case, and it is thus submitted that the Respondent may rely on the waiver.
The respondent is entitled to rely on the waiver agreement to the effect that it does: the complainant abandoned her right to take proceedings against the Respondent which is is entitled to avoid these proceedings. |
Summary of Complainant’s Case:
The complainant said that she was given a letter on September 14th putting her on notice of redundancy, even though the letter did not bear her name.
She was also told that she could go home, and from this she took it that that was the date of the termination of her employment. (In cross examination she accepted that there was no reference to the termination of her employment in that letter, simply that a discussion would take place.)
She attended a meeting a few days later accompanied by her sister and she sought further information and paperwork.
She initially contacted the Citizen’s Information Service for advice and in due course she consulted a solicitor. She accepts that she got legal advice prior to the signing of the termination agreement.
She also confirmed that through the process there had been improvement on the ex-gratia payment. |
Findings and Conclusions:
The facts are well set out in the submissions of the parties and there is little, if any dispute on the key elements of the narrative.
There are two preliminary issues, both referred to in the respondent’s submission.
In that submission, and in the course of the hearing, greatest emphasis was laid by the respondent on the severance agreement and on the fact that the complainant having waived her right to undertake the very proceedings such as these and on which, despite that, she subsequently embarked.
Indeed, she initiated the complaints not subsequently but prior to the conclusion of the process without either telling the respondent she had done so, or, as she could (and should) have done, abandoning them once she had signed the agreement and taken the consideration for having done so.
Her evidence on affirmation to the hearing was that she was specifically advised by her solicitor that in signing the severance agreement she could not pursue a complaint of unfair dismissal. And yet she did so.
The second issue relates to the date of referral of the complaint to the WRC.
The complainant, rather weakly asserted that her employment ended on September 14th with the letter advising her that she was at risk of redundancy.
I find that as a matter of fact her employment terminated on September 23rd, 2020, two days after she referred the complaint to the WRC, and therefore at which point when her employment had not terminated.
Even allowing for the understandably traumatising effect of such bad news as her probable redundancy, (and the complainant had twenty years’ service with the company) her handling of the matter left a lot to be desired, both at the time and subsequently.
She signed a document which she had been legally advised prevented a referral to the WRC.
She did not tell her employer that she had already made such a referral, which falls somewhere along a line running from elementary discourtesy to something much worse, which the trauma of her situation does not excuse.
I find that the respondent comfortably meets the various tests set out in the case law above related to the informed consent and the opportunity to take legal advice in respect of a severance agreement necessary to enforce a waiver.
The complainant signed the agreement with the benefit of legal advice and was not pressurised in any way to do so.
In her evidence she said that she only signed the agreement because she had no choice.
Insofar as this relates to the redundancy that, sadly, is often the nature of redundancy situations but there was significant interaction between the parties between September 14th and the signing of the document a month later. The complainant ultimately did sign the severance agreement including the provision to waive all claims arising, which she has now failed to honour.
I find therefore that for either of the reasons referred to above all of the complaints must fail.
In particular, she referred the unfair dismissal complaint before the date of the actual termination of her employment and she is in any event bound by the terms of the severance agreement. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
All three complaints CA-00039959-001, 002 and 003 are estopped by virtue of the waiver on all subsequent complaints entered into by the complainant. Complaint CA-00039959-001 under the Unfair Dismissals Act was made before the termination of employment took place and for that further reason is not within jurisdiction. |
Dated: 10th June 2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Waiver agreement, premature referral of complaint. |