Complainant

Respondent

Parties

Daniel Kennoy

Tesco Ireland Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

Eoin Coates, Mandate Trade Union

Declan Thomas, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00064190-001

20/06/2024

This complaint is for relief under the Minimum Notice and Terms of Employment Act (MNTEA)

The Complainant gave the following evidence under affirmation:

1.      He worked on the Respondent’s Deli counter in Sligo for 38 years.

2.      In 2018 due to a reduction of Deli counter sales he was transferred to work on the shop floor but still covered the Deli counter when his colleague was on leave.

3.      On 26.1.2024 his supervisor, Mr. McClintock asked him and his Deli counter colleague to attend a meeting.

4.      At this meeting both employees were advised that the deli counter would soon be closing and that they had a choice. They could either remain employed but working in a slightly different role or they could accept a voluntary redundancy package.

5.      Later that day, on foot of advice from the shop steward the Complainant asked his supervisor about statutory minimum notice and showed him the WRC webpage which advised that he was entitled to 8 weeks of minimum notice pay because of his 38 years of employment.

6.      Mr. McClintock advised him that he would need to speak to HR and would get back to him.

7.      At a further meeting on 29.1.2024 Mr. McClintock gave the Complainant and his Deli colleague each a draft letter of settlement (this included an acceptance of a voluntary redundancy package together with a one page on which was set out the proposed redundancy payment.)  The redundancy was calculated according to a Tesco/Trade Union agreement and was based on 5 weeks per year of service. The draft letter included a full and final waiver of all rights contractual and statutory as against the Respondent. The last page of the letter set out all legislation that was captured by the waiver, and included the MNTEA

8.      At that first meeting on 29.1.2024 the Complainant completed and signed an application form in which he applied for voluntary redundancy.

9.      At a meeting on the 1.2.2024 the Complainant was provided with another copy of the settlement agreement letter/waiver which included the Complainant’s details but in all other respects was the same as the draft letter that he had already received.  In the body of the letter was a waiver -  that on foot of a voluntary redundancy payment, that he would waive the right to claim any further contractual or statutory rights.

10.   A clause at the end of the draft and actual settlement letter stated:

“I hereby acknowledge receipt of the above letter. I confirm that I have signed it having full knowledge of my legal rights and having had the opportunity to take independent legal advice as to its terms and effect. I further confirm that I have signed this letter without any coercion of any description. Having done so I hereby accept it terms in full.”

11.   Between the 1.2.2024 and the signatory meeting on 8.2.2024 the Complainant again raised the issue of statutory minimum notice in addition to redundancy payment but he received no clarity about that until the meeting on 8.2.2024 when he again asked Mr. McClintock who just shrugged and the Complainant understood from that he would not be paid in lieu of minimum notice entitlement paid.

12.   In the week before the final meeting on 8.2.2024 the Complainant liaised further with his trade union official and forwarded him two pages of the settlement agreement letter. He did not send his trade union the last page on which a list of the legislation that he would be waiving his rights under was set out, which included the MNTEA.

13.   During that last week he phoned his trade union representative to discuss that minimum notice was not part of the deal that he was being offered. His representative advised him to sign the letter anyway because the deli counter was closing on 10.2.2024 and if he did not sign it, he would risk not getting the voluntary redundancy. His trade union official advised him to sign the letter and they could pursue the minimum notice claim later.

14.   He attended the signature meeting on 8.2.2024 and he signed the settlement letter in full and final settlement of all claims against the Respondent. His trade union shop steward was present.

15.   In his WRC complaint he now claims that his consent to waive his rights under the MNTEA was not properly legally informed and that he was still entitled to minimum notice payment of 8 weeks.

The Respondent raised a preliminary application at the commencement of the Adjudication namely that the WRC did not have jurisdiction to investigate the complaint under the MNTEA because the Complainant had waived all statutory and contractual rights when he signed the voluntary redundancy agreement.

To evidence this application, the Complainant’s supervisor, Mr. John McClintock gave the following evidence:

1.      The Complainant and his colleague - both of whom had worked on the Deli Counter for many years -  had repeatedly asked him for a voluntary redundancy deal.

2.      The deli work had been reducing for some time. This had resulted in the Complainant being relocated to work on the shop floor, which he was unhappy about and  led to an earlier WRC process in which the Complainant sought to be treated as having been made redundant due to reduced work hours.

3.      There was no doubt in Mr. McClintock’s mind that the Complainant did not want to remain working and wanted a voluntary redundancy package. The terms of the voluntary redundancy offer were well known because of a Management/Trade Union Agreement (Meat and Deli Agreement) which had been agreed in 2003 gave them 5 weeks wages per year of service instead of the 2 weeks wages per year of service under MNTEA.  The Complainant admitted this in his evidence.

4.      At the start of January 2024, the Respondent decided to close the deli.

5.      A meeting was called on 29.1.2024 during which the Complainant signed an application form seeking voluntary redundancy. At that meeting he was also given a draft settlement letter in which it was stated that all contractual and statutory rights were being waived in return for receipt of a voluntary redundancy payment. The third and last page expressly stated that rights under the MNTEA were being waived and the clause at the end of the letter confirmed that the Complainant was given an opportunity to receive legal advice and was not acting under coercion when he signed the settlement agreement.

6.      The Complainant was advised to think the matter over, and what he was being asked to agree to and that that another meeting would be held in due course for the documents to be signed.

7.      From then on the Complainant had over a week to get legal advice on the waiver and he knew – from the draft version of the settlement agreement – that he was being required to waive his statutory rights, including MNTEA rights and had got the opportunity to obtain legal advice prior to signing.

8.      The Complainant did not request for additional time and had it been asked for, it would have been granted.

9.      There was no pressure on the Complainant to sign. But having signed it, he can’t have it both ways, ie receive the voluntary redundancy package, which more than doubled his statutory redundancy payment and to ignore the waiver that he signed for all statutory claims.

10.   After the meeting he accepts that the Complainant approached him on the shop floor asking about Minimum Notice. Mr. McClintock spoke about this with HR and told the Complainant – also on the shop floor - that the deal was all inclusive and did not include minimum notice. Mr. McClintock understood that no minimum notice was payable because in circumstances where an employee elects to accept a voluntary redundancy deal, the employer does not terminate the employment.

11.   At the last meeting on 8.1.2024 the Complainant was accompanied by his shop steward. There was no discussion about MNTEA at the meeting. What happened at the meeting was that he went through the letter and waiver content and the calculation of the redundancy payment with both the Complainant and his colleague.  The Complainant’s colleague signed the settlement letter and waiver first and the Complainant followed suit.

12.   It was only after the letter and wavier was signed that Mandate sent the Respondent a letter seeking that a minimum notice payment be made to the Complainant.

Submissions

(i)                Voluntary Redundancy situations do not give rise to rights under the MNTEA because the employee is choosing to end the employment – not the employer

(ii)              The Complainant knew what he was signing; he was waiving rights under the MNTEA as well as all other protective legislation. He also was expressly admitting that he had been given an opportunity to seek legal advice.  However not only had he been given an opportunity to obtain legal advice but he had actually obtained it. The legal advice of his trade union according to the Complainant’s own evidence was to sign the waiver and then try to pursue a statutory claim later. Cake and eat it.  The Complainant’s assertion that the waiver of his rights was not properly informed is unfounded. He waived his rights under the MNTEA and he is not now permitted to seek relief under the MNTEA.

I am satisfied that this complaint is not well founded on two bases.

1.      Minimum Notice is not available when an employee ends his employment and

2.      The waiver that he signed was fully informed, he received legal advice before he signed it and that waiver now binds him.

Reasoning

1.      This was a voluntary redundancy situation. At the meeting on 29.1.2024 the Complainant was offered the right to either continue doing the job he was doing or to accept voluntary redundancy.

He chose to accept voluntary redundancy because he did not want to continue working on the floor. The job he had preferred was working at the deli counter but since 2018 due to a reduction in deli hours he was mainly working on the shop floor. Given a choice between voluntary redundancy and keep working on the shop floor, he chose voluntary redundancy, as was his right.

As he accepted an offer of voluntary redundancy, the timing of the termination of his employment was his to decide. In these circumstances I am satisfied that the MNTEA does not apply. If redundancy was being imposed upon him that would be different.

2.      I am also satisfied that Complainant’s right to statutory minimum notice under the MNTEA was waived by him when on 8.2.2024 he signed the “full and final” settlement agreement and the accompanying waiver of all existing and future claims.

The Complainant was in receipt of a draft settlement agreement letter for a week before he signed his settlement letter which was identical to the draft letter save his details were inserted. I am satisfied that one week was sufficient time to seek legal advice. I am satisfied that he knew that he was waiving his rights under the MNTEA because his evidence was that he discussed it with his union, he raised it with his supervisor and when he asked for it at the meeting of 1.5.2024 his supervisor’s shrug meant “take the deal or leave it.”  Then during that last week not only did he receive advice from his trade union representative but that he sent a copy of the letter the day before he signed it, to his union although inexplicably he only sent the first two pages and not the page containing the list of legislation that he was waiving rights to.

I am satisfied not only that a week was sufficient time to seek and obtain legal advice from his trade union but that he did in fact seek and obtain the legal advice. The advice given to him by his trade union was to sign the agreement and to see if they could get him the minimum notice later, which is what he did.

It is therefore inaccurate to characterise the circumstances as being that he was not aware that he was waiving his statutory rights when he signed the letter on 8.2.2024. He admits that there was strategy to get the voluntary redundancy package and also pursue the MNTEA rights.

And even if his trade union representative was not sent the legislation page,  he accepts that he was sent the letter including clause which confirmed that the Complainant had been given the

opportunity to obtain independent legal advice prior to signing and the advice was to sign this.

Conclusion

I am satisfied that no rights under the MNTEA arise in voluntary redundancy situations.

In the alternative I am also satisfied that the Complainant was allowed sufficient time to obtain legal advice from his trade union (or another legal advisor had he wished) on whether he should or should not sign the settlement letter and that during that time, he did seek advice from his trade union and was advised to sign the letter anyway. In such circumstances I do not accept that the waiver was signed without adequate legal advice or that the waiver was not fully informed.

In these circumstances and where there is no specific anti-avoidance provisions in the MNTEA, I find that the Complainant waived his rights under the MNTEA and was fully informed when he signed the letter on 8.2.2024. As I am satisfied that the waiver binds the Complainant I have no jurisdiction to investigate this matter further.

This complaint is not well founded.

Minimum Notice – Voluntary Redundancy – Waiver – Right to Legal Advice