Complainant

Respondent

Parties

Andrea  Myers

CLAY Youth Project Clay Clg

Representatives

Sean Walsh

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-00068824-001

24/01/2025

The complainant was involved in a road traffic accident in August 2023 and was absent from work for extended periods throughout 2024.  In due course, following her return to work the parties entered into discussions on a compromise agreement  and this was agreed on December 20th, 2024.

The respondent raises a preliminary matter the jurisdiction of the WRC to hear the complaint as the Compromise Agreement was in full and final settlement of all and any claims against the respondent and contained a commitment that it would release the respondent from all claims, including under statute, and specifically the Unfair Dismissals Act.

The complainant referred her complaint to the WRC on January 24th, 2025, just over a month after it was signed. 

Respondent submission on preliminary Issue

The complainant  has waived all and any claims under the Compromise Agreement.

In Angela Thompson v County Wexford Education Centre UD 581/2012, the EAT held that it was satisfied there were no issues in relation to capacity or consideration, particularly in light of the fact that the claimant had consulted with a legal advisor.

The EAT made specific reference to the fact the agreement itself was clear and that the claimant informed the Respondent that she had taken independent legal advice.

In Healy v Irish Life Assurance (DEC­ E2015-002} the Equality Officer held that where the appropriate steps are followed, a validly executedcompromiseagreementwillbeupheld.

The rationale for this decision referenced the case of Sunday World Newspapers Limited v Steven Kinsella and Luke Bradley {2008] ELR 53 where it was stated that

 "In the instant case the agreement is expressly stated to be in full and final settlement and that means what it says... there was meaningful negotiation and discussion... professional advice of an appropriate character before the agreement was signed."

The Equality Officer found in this case that "full and final meant just that ''full and final" and that the complainant could "not now ignore the obligations placed upon him by signing this agreement". On foot of this, the Equality Officer found that he had no jurisdiction to hear the case.

Therefore, the complainant is barred from litigating her complaints on foot of her fully informed consent in executing a compromise agreement with the respondent, which is in full and final agreement of all and any claims, actions and or causes of action.

Complainant submission on Preliminary Issue

The complainant gave her evidence on affirmation.

In her submission she set out in detail the various exchanges between the respondent HR consultant and herself.

On  November 11th she met the external HR consultant, (GM) and she was accompanied at the meeting. 

It was put to her at the meeting by GM that she had been disorientated in work, spilling things and slurring her words. She asked for the source of this information and was told that the source was irrelevant, and he was not going to name people but that it was said to him. There was no reference to a severance agreement at that meeting.

There were follow up meetings on November 29th  and December 20th, at the Imperial Hotel in Dundalk in the course of which terms for a severance agreement emerged.

There was an initial offer of offered €5000 which was refused by the complainant,  and she sought a full year’s salary  (€52,000) which the respondent ruled out and some other terms. She requested that the discussions would be concluded by Christmas, which deadline she extended to December 31st,  

She stated that she was adamant she could not deal with the stress any longer and wanted a fresh start on January 1st and no more dealings with the respondent.

GM stated that was too much money to ask for and that he would ask for €30,000 take home (non-taxed) along with pay and holidays owed to her instead. GM reverted with an offer from the respondent  with the payment down from €30,000 to €20,000 subject to a compromise agreement. He stated he would draw up the paperwork and send it on.

She confirmed that she was not given the opportunity to take professional advice. She was not shown the full document, merely the signature page and she was not given a copy for herself.

The complainant outlines various difficulties that arose in her attempts to return to work following her road traffic accident.

She said there had been difficulties with the previous manager, but her current manager requested an independent occupational health assessment before she would be permitted to return to work.

Eventually it was recommended that she returned to work in August 2024 and a strategy which included some accommodation was mapped out.

However, the respondent was not ready for her return and although they paid her salary, they permitted her to return only in September. On her return she says she was ignored by her new manager and a support person was appointed to her although he had no access to the occupational health report.

She said she was having difficulty with the lack of a relationship with our manager and made this known orally in meetings and to her support person.

However, no supervision was made available to her, and she continued to attend at work despite experiencing a degree of anxiety and stress each day she attended on one occasion she was interrupted on her route to work to be told not to attend on that day sequence of events thereafter is referred to above in relation to the discussions on her severance agreement.

The respondent set out the detailed background back to the comp’s accident in August 2023.

On August 13th, 2024, the Complainant's return to work date was pushed back. She was advised that she would be paid from 12th August. On 21st August 2024, she sent a WhatsApp message to a group for work stating that she was not well but felt supported and was looking forward to return to work.

On August 29th,  2024 the emailed the complainant the most recent information from Medmark and reminded her that she had been furnished with the information she requested regarding the Medmark appointment on 20th March via email.

On 4th September 2024 the Respondent emailed an amended return to work date of 7th October  as more time was needed to finalise her return-to-work plan. She was informed she would continue to be paid during this time. On 2nd October 2024 the Respondent emailed a return-to-work plan for the next 4 weeks as recommended by Medmark. She was informed of a RTW meeting on the 1st day back and that the YDP co-ordinator would oversee her return.

On 8th October 2024 the Complainant returned to work on a phased basis and had a RTW meeting with a Co-ordinator. On 9th October 2025 the respondent emailed her via her work email regarding her contract for 2024 having issued and awaiting her review and sign off.

On October 10th, staffmembersbegantoraiseconcernsregardinghowthe Complainant hadbeen presenting on her first week back. On 15thOctober,the Respondent received an email fromtheComplainant witha query regarding herpayincrement for 2024.On22ndOctober,the respondent advisingthattheincrement would bebackdatedandthatapension hadbeenaddedto the contract.

On 23rd October 2024, the YDP Co-ordinator, had a meeting with the Complainant during which the Complainant became very emotional. When the minutes of the meeting were sent to her, she sent back additions that were not part of the meeting such as having a panic attack in work due to work stress.

On October 30th,  2024, further concerns were raised by other staff members regarding her wellbeing. This concern was brought to the attention of CLAY BOM chairperson.

The following say the respondent asked her not to attend work on that day due to concerns for her wellbeing. She responded that she was confused about the request to stay at home and later contacted the YDP co-ordinator saying she felt the place was a toxic environment.

On November 1st,  2024,herProject leader contactedher via emailto say that her wellbeing was a priority, andthat the respondent has a duty of care toall staff and she would be back in touch. She was also advised that she would continue to be paid duringthisperiod.

During the period November 4th, 2024-December 31st  2024, she continued to be paid in full over a 40 day period.

On November 7th  2024 an email and registered post letter was sent to the complainant setting up a meeting with her close to her home with an independent HR advisor in relation to her wellbeing. On November 11th,  2024, she emailed stating that couldn't attend the meeting as she was sick. Another meeting was rearranged but complainant couldn't attend as she was still sick.

On November 11th, 2024, a medical cert for 5 days was received stating the complainant was not fit for work. On November 13th, 2024, she was invited to a meeting on November 18th, and on that day an external meeting took place with her, her representative, the YDP co-ordinator, and the independent HR advisor.

On December 5th  2024 the Complainant emailed BoM Chairperson regarding allegations of being pushed out, not receiving any support and making a DSAR request. On December 10th,  clarification was sought clarification on her DSAR request, but there was no response from Complainant.

On December 20th,  2024 the complainant signed a Compromise Agreement. She was issued with her final pay slip on December 27th, 2024.The HR advisor agreed to her request to have her statement of employment expanded to include more qualitative information and to be signed by the YDP co-ordinator and undertook to have this re-drafted and re-issued.

Decision on Preliminary Issue

The issue that arises here initially is whether the complainant is estopped from pursuing her complaint of constructive unfair dismissal on the basis of the compromise agreement. She was not legally represented at the hearing, but the submission of the respondent above will be helpful in this regard.

The Compromise Agreement includes a specific reference to the Unfair Dismissals Act as one of the statutes under which the complainant would not pursue complaints, (Paragraphs 3.1 and 3.2 thereof).

It also contains at Paragraph 9 ‘Legal Advice’ the following.

‘The employee hereby confirms that she has had the opportunity of taking legal advice on the provisions of this agreement and that she understands the effect and the implications of this agreement, and that she is signing this agreement voluntarily and without any duress whatsoever.’

The caselaw referred to above in the respondent’s submission is relevant in this context, taken with the complainant’s undisputed evidence. The respondent did not offer any evidence on this point.

In the first place, as a matter of uncontroverted fact, she was not given the opportunity to take legal advice on the document.

For the convenience of the reader, I reproduce the case law in the respondent’s submission above.

Reference was made to Angela Thompson v County Wexford Education Centre UD 581/2012, in which the EAT held that it was satisfied there were no issues in relation to capacity or consideration, particularly in light of the fact that the claimant had consulted with a legal advisor.

The EAT made specific reference to the fact the agreement itself was clear and that the claimant informed the Respondent that she had taken independent legal advice.

 This is not the situation in the instant case.

The second case relied on by the respondent was Healy v Irish Life Assurance (DEC­ E2015-002} in which an Equality Officer held that where the appropriate steps are followed, a validly executedcompromiseagreementwillbeupheld.

The rationale for this decision referenced the case of Sunday World Newspapers Limited v Steven Kinsella and Luke Bradley {2008] ELR 53 where it was stated that

 "In the instant case the agreement is expressly stated to be in full and final settlement and that means what it says... there was meaningful negotiation and discussion... professional advice of an appropriate character before the agreement was signed."

The references here to ‘appropriate steps’, and ‘professional advice of an appropriate character before the agreement was signed’ are fatal to the respondent’s position. The complainant’s evidence was that she was not even shown the entire document, just the signature page, and that she was not allowed to retain a copy of it.

I do accept that there were ‘meaningful negotiations and discussion’, and it will be necessary to return to this, but this requirement for informed consent is a critical one. If it can be shown that a party has waived their right to do so that will be a different matter, but it is not what happened here on the basis of the complainant’s uncontested evidence.

Accordingly, I decide that I may proceed to decide the substantive complaint.

Decision

In many ways that decision on the substantive complaint turns on the same sequence of events as just referred to between November 18ths 2024 and the signing of the agreement on December 20th. Although I review and take into account the events preceding that process to the extent that they are relevant.

The complainant has claimed that she was constructively dismissed.

In general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning. In most, if not all cases an action for breach of the employment contract is unlikely to arise.

But when an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal then that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that.

 ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

This eloquently sets out the bar that an employee has to meet.

While the behaviour of the employer is critical, the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The tribunal and its predecessor have made it clear in a series of decisions that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above) before the bar referred to above can be said to have been met.

On reading the submission of the complainant, the following gave rise to concern in relation to the December 20th agreement.

Inthismeetinghegavemethepapersandaskedmetosignthereandthen, I askedifIcouldhave moretimeasIdidn’tfeelconfidentinthewordingofdocument-hesaid'it'stakenmeoveranhour andahalftodriveheretodaythiswouldawasteofmytimeifyoudon'tsign,itseverythingwe discussedAndreajust indifferentEnglish'.

IstatedIdidnotwantto sign,andItook regularbreaks fromthemeetingtryingtocontactfriendsandfamilybyphoneforsupport-unsuccessfully.Iwas crying and shaking. I did not want to leave my job.

He stated that Christmas was in 4 days and that if I didn'tsignthisnowIwouldbeletgoanywayonthe31stofDecemberwithnoreferenceandno money.

Taken on an ordinary reading, this initially appeared to be a threat to the complainant that if she did not leave willingly, then she would be dismissed on December 31st.

This was expressed on the complaint form as follows.

I was then forced to attend meetings with an out sourced HR advisory [sic], and I told there was no solution to reinforce me within my role. I was told by him that I would be let go on the 31/12/2024 and have to follow up my dismissal with the WRC/solicitor or I could accept a compromise agreement from CLAY.

I went with the Compromise agreement as I really had no other option as a single mother with no income, either be sacked with no payment or provide me and my daughter with sufficient funds to stay afloat until I was able to attain employment.

Underlining added

In fact, it emerged and somewhat by accident at the hearing in response to a question that this apparent ‘threat’ by the HR consultant was of an entirely different character.

It transpires that the complainant was on a fixed term contract which was due to expire on December 31st, 2024. She expressed some expectation of a renewal of the contract, but the fact remains that, according to its own terms, it was going to expire in a little under two weeks. Nowhere had this important detail been revealed in the complainant’s submissions or evidence until that point.

The respondent stated at the hearing that, while it had no obligation to do so, it entered into the settlement process as a gesture of good will to the complainant, of whom the respondent spoke highly in general.

This rather changes the character of the entire situation.

The complainant has painted the scene in the Imperial Hotel as one where she was being pressurised to accept €20,000 and certain other benefits, as an alternative to continuing her employment indefinitely, when in reality it was an alternative to seeing her contract expire in ten days and walking away without a penny, purely on the basis of the expiration of her fixed-term contract.

This places her ‘reluctance’ to sign the document in a different, and less intelligible light, given the reality of her negotiating position.

It is also clear, that on the weeks leading up to the final meeting she actively engaged in negotiations with the respondent’s consultant. She submitted various demands, including that she be paid a full year’s salary, so she was an active participant in the process.

She stated in her written submission that she was

 ‘Adamantshe couldnotdealwiththe stressanylongerandwantedacleancut fresh start onJanuary1stand no more dealingswiththe respondent.

In my opinion, it is not possible to build a case of constructive dismissal on criticism of the conduct of negotiations on a severance package into which one has entered freely and participated in fully, simply because some remorse sets in after the agreement has been signed.

The normal, and indeed necessary pre-conditions for such a complaint require a sequence of actions or omissions by an employer which allegedly undermine the contract of employment, and which justify a complainant in breaking it.

The complainant also confirmed in her evidence that she had never raised any grievances in relation to her employment at any stage, although she appeared to have several, although all of these were relatively minor matters which could easily have been resolved.

In addition, the complainant’s statement above that she did not want to leave her job is detached from the reality that her contract was about to end whatever she did, unless the respondent decided to renew it. She had been told by the HR consultant that this would not happen and her failure to grasp the reality of her situation (as evidence by the demands she made) is rather surprising. (She actually refers to this exchange on the WRC Complaint Form).

It seems clear that what triggered her sense of grievance, and this complaint is that the respondent was not willing to accede to those demands, which, in the circumstances were excessive.

I conclude as follows.

The complainant voluntarily entered into an agreement with the respondent on the termination of her employment, despite the fact that it would have terminated anyway without the agreement within a few days.

I find that she was not given adequate opportunity to take professional advice as required by the agreement and therefore she is not estopped from pursuing her complaint.

Further, she accepted the consideration in the agreement even though she had an expectation that it would be paid net of statutory deductions. (The complainant may not have fully thought through that any award arising from this complaint would have clear implications for that payment, but that would be a matter for the respondent and, as it happens, does not arise).

In any event, dissatisfaction with the outcome of a deal does not invalidate it, indeed it is common enough to think one might have done better in negotiations, and in my opinion the complainant freely accepted the terms of the agreement, even if reluctantly.

There may appear to be an inconsistency here with my earlier finding that she was not estopped from pursuing her complaint by virtue of not having had professional advice. However, I find that the level of consent necessary to estop the pursuit of a complaint under statute is at a higher level than that required to indicate general consent to the outcome of the agreement itself.

As noted elsewhere, the complainant’s dissatisfaction with the outcome arose from her remorse that the terms did not match her somewhat ambitious expectations.

The conduct on the part of an employer necessary to ground constructive dismissal are of an entirely different character to those presented by the complainant in this case, which are totally focussed on the outcome of the severance negotiations and her dissatisfaction with that, even though, at the time she accepted it.

And to the extent to which any such conduct may have existed she failed entirely to process her complaints through the grievance machinery as required by the authorities on the subject, as already referred to.

As noted above they must have been at a level and of a nature that represents a repudiation of the contract of employment. No such case was made out by the complainant, nor can the objective facts of the case be made to fit such a case.

Her belief that she had the alternative option of further indefinite employment is quite misconceived and I find that the dismissal was not unfair. Her complaint does not succeed.

For the reasons set out above Complaint CA-00068824-001 does not succeed and the dismissal was not unfair.

Severance agreement, Constructive Dismissal