Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Self-represented

Fionnan Long BL, instructed by

Marc Fitzgibbon, Lavelle Partners

Act

Complaint 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-00056774-001

22/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056774-002

22/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056774-003

22/05/2023

At the initial hearing of the complaint on 28th August 2023, the parties requested an adjournment to have discussions to try settle the complaints. The adjournment was granted on the basis that the complainant updated the Adjudication Officer by 4pm on 6th September 2023. The complainant updated the Adjudication Officer that matters were still not finalised and an extension was requested and granted. Other extensions were sought by the complainant and were granted.

As the complaints were still live, the case was re-listed for hearing on Monday 28th April 2025. At this hearing, the respondent representative made an application to dismiss the complaints submitting that the WRC had no jurisdiction due to a settlement agreement reached. It was also submitted that as the settlement agreement contained a confidentiality clause that the Adjudication decision should be anonymised.

At the hearing on 28th April 2025, the complainant said he had not received the respondent submission which was received by the WRC on Friday 25th April 2025. The hearing was adjourned for a short period to allow the complainant to read the respondent submission.

When the hearing reconvened, both parties consented to the preliminary issue of jurisdiction to be decided by written submissions. After reviewing the submissions made, I requested further submissions on Keelings Retail Unlimited Company v. Wasim Haskiya UDD2023.  

At the re-convened hearing on 28th April 2025, the complainant consented to the preliminary issue of jurisdiction to be decided by written submissions. The intention to decide on the preliminary matter of jurisdiction by written submissions was confirmed by the WRC to the complainant in writing on 30th April 2025 as per Section 47 of the Workplace Relations Act 2015.

The following is a summary of the complainant’s submissions that he had not waived his rights by reaching a settlement with the respondent.

1.      He had not received professional advice or legal advice before signing the settlement document nor had the respondent established whether he had received advice.

2.      He had not received adequate consideration particularly given the manner of his employment termination.

3.      There were no meaningful negotiations.

4.      There was no free and informed consent with full knowledge of his rights as he was not afforded appropriate time prior to signing the settlement agreement.

5.      The statutory provisions underpinning his employment complaints provide for no contracting out provisions.

6.      The proposal for mediation by the respondent should have been made earlier, and occurred very soon after the adjourned adjudication hearing on 28th August 2023.

7.      He was afforded limited time to read and understand the terms of settlement before signing.

8.      He was not familiar with legal terminology and was stressed at the time.

The respondent representative made a submission at the re-convened hearing on 28th April 2025, that the matter should be dismissed as there was a settlement agreement reached through a mediation process. The respondent representative consented to the preliminary issue of jurisdiction to be decided by written submissions. It was confirmed to the respondent representative in writing on 30th April 2025 of the intention to decide the matter by written submissions as per Section 47 of the Workplace Relations Act 2015.

The following is a summary of the submissions made by the respondent representative that the complainant has waived his rights to pursue his complaints having signed a settlement agreement.

·        The settlement agreement was signed by the parties after a lengthy mediation process conducted by a CEDR accredited mediator.

·        The agreement contained financial compensation which was adequate consideration along with a list of employment legislation waived by the complainant.

·        The respondent shared tax advice with the complainant.

The respondent representative submitted that the case was distinguishable from Keelings due to the following-

·        The complainant had sufficient time of ten months between his workplace termination and the signing of the settlement agreement.

·        There was no coercion on the complainant and he signed a clause to this effect.

·        The complainant is an English speaker and his submissions demonstrate his wherewithal during the process.

·        There was no evidence submitted of stress on the complainant during the entire process.

·        The complainant did not request an extension of time before signing the settlement.

·        There were no restrictions on the complainant in obtaining legal advice and he had engaged HR Specialist advice prior to the first WRC hearing.

·        There were meaningful negotiation during the lengthy mediation process.

The Keelings case outlined the case law and relevant considerations between a genuine bargain to settle and an attempt to exclude or limit rights under statutory legislation. Submissions were sought by the parties so as to understand the circumstances under which a settlement agreement was signed. Keelings referenced relevant court decisions and the following considerations to establish if rights to pursue complaints were waived.

·        The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.

·        An agreement to waive statutory rights must be supported by adequate consideration.

·        The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.

·        The waiver should list the various Acts being taken into account.

·        The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.

·        It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver.

Applying the above considerations to this case

Context

The contextual background is relevant to understand whether a legally valid settlement was reached. Keelings involved a supposed settlement in the workplace itself and the circumstances leading up to the termination. In this case, the complainant referred his employment complaints to the WRC subsequent to the workplace termination. When the Adjudication hearing took place on 28th August 2023, the complainant consented to an adjournment to have discussions on the condition of updating the Adjudication Officer within 9 days. The parties entered into a mediation process which resulted in a signed settlement.

This background differs from Keelings in that matters had moved from the workplace to the legal forum of the WRC Adjudication service.  Both parties understood at the time of the adjournment that matters would either be resolved by a settlement or would return to the WRC for an adjudication decision.

Settlement  

Shortly after the adjournment the parties agreed to mediation under an independent accredited mediator. The complainant contests the manner and content of the settlement and does not deny that he signed the settlement.

When the case was re-convened at the WRC on 28th April 2025, the respondent relied on the signed settlement and submitted that the complainant had waived his rights to pursue his complaints.

Adequate Consideration

I have viewed the settlement for the purpose of establishing whether there was adequate consideration. I am satisfied that the signed settlement could be considered to have contained an adequate settlement.

Negotiations

The parties submitted alternative views as to whether there were meaningful negotiations. The process was conducted by an accredited mediator. On reviewing the settlement terms, it can only be deduced that the negotiations were meaningful, particularly as the complainant signed up to the terms. The complainant was aware he had an alternative option prior to signing, of allowing the complaints return for an adjudication investigation and decision.

The signed settlement lists the various Acts under which the complainant brought complaints to the WRC. I am satisfied that the complainant understood that the signing of the settlement waivered his rights to continue to litigate his complaints.

Time Constraints

The complaints were received by the WRC on 22nd May 2023, the adjourned hearing took place on 28th August 2023 and the settlement was signed on 1st September 2023. Although there are conflicting accounts of the length of the mediation process, it seems to have taken up to a full day. Given the WRC hearing was adjourned, and there was an ongoing mediation process, there was still sufficient time for the complainant to avail of professional or legal advice. The settlement agreement includes a clause that he had the opportunity to take legal advice and that he had entered into the agreement without coercion. The complainant was also aware that he did not have to update the Adjudication Officer until 4pm on 6th September 2023. There was no evidence that the complainant requested more time to consider or obtain advice on the terms of the mediation agreement before signing. Given these timelines, I am satisfied that he was not coerced into signing a settlement.

Free and Informed Consent

The complainant consented to discussions with the respondent and then subsequently to a mediation process. He was always aware that he had the option of litigating his complaints at the WRC rather than agree settlement terms. The respondent representative submitted that the complainant had HR Specialist advice at an earlier stage in the process so he must have been aware of the legal basis of his complaints. When the WRC hearing commenced on 28th August 2023, the complainant was already in a legal forum. He then subsequently signed a settlement agreement including a clause on legal advice and waiving his rights under the specific employment legislation. I am satisfied that the complainant had free and informed consent along with the opportunity of obtaining professional/legal advice.

Statutory Provisions

The right to pursue statutory employment complaints is an important constitutional right and therefore a waiver of rights must be construed strictly against the party from whom it emanated. (Keelings)  

The mediation process culminated in a settlement signed by both parties. It was conducted by an independent and accredited mediator. I am satisfied that the settlement agreement was reached after a genuine bargain to settle by both parties. The agreement included a waiver of rights and therefore did not circumvent or deny the complainant his statutory rights. 

For the reasons outlined above, I decide that the complainant has waived his rights under the settlement agreement and consequently I have no jurisdiction to hear the complaints.

As I have decided that a legally valid settlement was reached, and this contains a confidentiality clause, I decide to anonymise the parties, in accordance with its settlement terms.  

I decide that the complainant has waived his rights under the settlement agreement and consequently I have no jurisdiction to hear the complaints.  

Waiver of rights