Complainant

Respondent

Parties

Leonardo  de Oliveira Lima

Dublin Bus

Representatives

Self

Hugh Hannon, Solicitor,

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-00070185-001

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00070185-002

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00070185-004

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00070185-005

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00070185-006

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00070185-007

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00070185-008

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00070185-009

22/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00070185-010

22/03/2025

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

CA-00070185-011

22/03/2025

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

CA-00070185-012

22/03/2025

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

CA-00070471-001

01/04/2025

The Complainant, a former employee of the Respondent, submitted a total of 12 complaints to the WRC on 23 March 2025 and 1 April 2025. These complaints relate to various aspects of his employment. It is noted that the Complainant had previously brought matters before the WRC, which culminated in a settlement agreement signed by both parties on 30 January 2025.

The Complainant now seeks to have these complaints resubmitted for adjudication, notwithstanding the prior settlement.

The Respondent objects to the admissibility of the new complaints. They submit that:

·        The Complainant entered into a full and final settlement agreement,

·        The agreement was signed voluntarily and in good faith by both parties,

·        The WRC lacks jurisdiction to reopen or re-adjudicate matters that have already been settled.

The Complainant submits that during the course of his previous proceedings before the Workplace Relations Commission (WRC), there were four scheduled hearing dates. On some of those dates, his legal representatives (either his solicitor or Counsel) were unable to attend, resulting in adjournments. On another occasion, the Respondent failed to attend, and the matter was again adjourned. A substantive hearing did take place on 30 January 2025, at which the Complainant was represented by Counsel.

The Complainant states that during this hearing, discussions occurred between his Counsel and Counsel for the Respondent. He alleges that he was pressurised by his Counsel to sign a handwritten settlement agreement. He contends that this pressure was exerted in circumstances where he was sleep-deprived and unable to make an informed decision. The Complainant asserts that he was not afforded an opportunity to properly consider the agreement and that his solicitor failed to provide essential documents to the WRC.

The Complainant relies on a number of legal precedents concerning the validity of settlement agreements. He cites The Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241, in which the High Court emphasised that such agreements must adhere to constitutional principles of fair procedures.

Further, the Complainant relies on Sunday Newspapers Ltd v Kinsella & Bradley [2007] IEHC 324, in which the High Court held that a settlement agreement waiving statutory employment rights must meet three criteria:

It must be entered into with full and informed consent;

It must clearly identify the rights being waived; and

The employee must have access to independent legal advice.

The Complainant contends that none of these safeguards were in place when he was presented with the settlement agreement. He asserts that he lacked the capacity to give informed consent, was not adequately advised of the implications of the agreement and did not have access to independent legal advice. He further argues that his barrister acted without proper instructions from his solicitor, who was absent on the day of the hearing. As the barrister is paid through the solicitor, the Complainant contends this confirms that the solicitor’s involvement was essential.

The Complainant also refers to Hurley v Royal Yacht Club (1997), which he submits establishes that a waiver signed under pressure, or in circumstances of misunderstanding or confusion, is invalid and cannot be used to waive statutory employment rights. He states that this decision reflects the situation he experienced.

Additionally, the Complainant makes submissions regarding his entitlement to a fair hearing under Article 37 of the Charter of Fundamental Rights of the European Union, arguing that he was denied this right.

In light of these circumstances and the material provided in his written submissions, the Complainant seeks that his complaints be re-opened and adjudicated upon by the WRC.

It is the Respondent’s position that the Complainant attended before the Workplace Relations Commission (WRC) on 30/012025. The Complainant was represented by Counsel; however, his solicitor was not in attendance.

At the hearing on 30/012025, Counsel for the Complainant requested that the Adjudication Officer allow the parties a period of time to engage in discussions. Following these discussions, a settlement agreement was reached, reduced to writing, and duly signed by both parties.

This settlement agreement expressly states that it constitutes a full and final settlement of all claims made by the Complainant against the Respondent arising from his employment and the termination thereof. Furthermore, the Complainant undertook not to issue or commence “any further or other claims, howsoever arising.

In light of the existence and terms of this binding settlement agreement, it is the Respondent’s position that the WRC has no jurisdiction to entertain or allow the Complainant to pursue any additional or subsequent claims arising from the same facts or circumstances.

The Complainant made two preliminary applications.  The first was that the decision should be anonymised.  There were no cogent reasons provided for doing so.

The second application was that in view of the circumstances surrounding the signing of the agreement on 30/01/2025 he should be allowed to have his case heard due to the failure of his solicitor to provide him with proper legal representation and he seeks to be allowed to represent himself. 

He specifically advised the WRC that “I am seeking a fair hearing of my case, proper legal representation, and the resolution of the outstanding issues, including unpaid wages, holiday pay, and compensation for discrimination and unfair dismissal that I have had a paper document about it etc.  I would appreciate it if my name could be kept confidential during these proceedings to prevent further prejudice to my career.  Thank you for your time and consideration…”

The Complainant was advised that hearings before the WRC are held in public, and that private hearings or anonymisation are only permitted in exceptional circumstances. He was further informed that his reason did not meet the required threshold for such exceptions.

Preliminary Decision:

The Complainant was also advised that a decision would need to be made regarding the preliminary application in order for the complaints to be opened and heard. He confirmed that he understood this would involve one of two possible outcomes: either the complaints would be accepted and scheduled for a full hearing, or it would be determined that the complaints could not be heard.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F. Case”). In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear"

Referring to legal authority, especially the B.T.F. case, the issue of waiver is one that can be decided at a preliminary stage of proceedings.

The idea is that if this issue alone can end the case ("terminate the whole proceedings"), then it’s appropriate to decide it first, before hearing the full complaint.

Severance Agreements:

The leading authority in relation to agreements which compromise employment statutory rights is Sunday World Newspapers Limited v Kinsella and Another [2007] IEHC 324. In that case, former employees who had entered into severance agreements sought to pursue complaints under the Protection of Employees (Fixed-Term Work) Act 2003, arguing that a waiver of their rights under the Act was void. In the High Court, Smyth J. confirmed that an employee could enter into an agreement in relation to his or her statutory rights. He held that the question of whether or not such rights had been compromised was a matter for the proper construction of the agreement itself. He also adopted Hurley v. Royal Yacht Club [1997] ELR 225 which considered the circumstances where claims can be legitimately compromised and applied a two-factor test:

a) that the claimant be advised of their legal entitlements and that any compromise agreement list the enactments applicable thereto; and

b) that the employee be advised in writing that he/she should take appropriate (legal) advice.

Further, in Starrus Eco Holdings Limited t/a Greenstar v. Gerald O’Reilly, UDD1868, the Labour Court concluded that it did “not have jurisdiction to go behind the waiver agreement entered into by the Parties.”

An employee could waive their statutory rights (such as the right to bring a claim) if they gave informed consent. This must be evaluated based on the facts of the case and relevant legal tests from previous caselaw.

If it's found that the Complainant validly waived their rights by signing the Severance Agreement, then the adjudicator or tribunal has no jurisdiction to hear the complaint.

The Complainant’s Severance Agreement:

I am satisfied that as a matter of construction, the Severance Agreement was intended as full and final settlement of any claim arising from the employment relationship between the Complainant and the Respondent.

Under the provisions of the Severance Agreement, the Complainant accepted a payment “in full and final settlement of all claims made against the Respondent arising from his employment and the termination thereof”.

The Complainant also agreed “not to issue or commence any further or other claim, howsoever arising and further he acknowledges that no further or other sum is due to him.”

I am satisfied that the Complainant gave his informed consent and was legally represented by Counsel.  The fact that the Complainant subsequently reconsidered his position and has raised concerns about his legal representatives is not a matter for the WRC to consider and it is not a legitimate basis to circumvent the agreement in order to have his complaints resubmitted for adjudication.

Having considered the totality of the evidence adduced in relation to this preliminary matter, I am satisfied that the Complainant signed the Severance Agreement with the benefit of informed consent. Therefore, I do not have jurisdiction to hear these complaints.

Having considered the totality of the evidence adduced in relation to this preliminary matter, I am satisfied that the Complainant signed the Severance Agreement with the benefit of informed consent. Therefore, I have decided that I do not have jurisdiction to hear these complaints

Severance agreement. jurisdiction