Anonymised Parties

A Bank Official

A  Bank

Representatives

  Self Represented

 The Bank Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00069990-001

14/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00069990-002

14/03/2025

The Complainant was employed as a Customer Service Representative from October 2007 to March 25th 2025. He submitted two complaints under the Protected Disclosures Act to the WRC on March 14th 2025. He alleged he was penalised or threatened with penalisation by his employer for having made a protected disclosure.  Both complaints were identical except for a last paragraph and essentially were a duplicate complaint.

In February 2025 the Complainant applied for and was accepted for a Voluntary Redundancy scheme. He signed the acceptance on February 26th 2025. The Respondent argued that the WRC had no jurisdiction to hear the complaints as the Complainant had signed and accepted a voluntary redundancy payment which contained compensation for accepting he had no claims under a variety of employment legislation acts , including the Protected Disclosures Act.

I started in the Bank and always would have been aware of doing the correct thing,

I studied for exams and always followed my courses.

 I moved to a Sales role in June 2019 when I was in a lending area offering personal lending products.  During Covid I had noticed some odd patterns and decided to bring it up.  I was always asking questions regarding lending as there seemed to be a good few grey areas and I would have always checked things rather than just putting applications through. It’s seemed that many of us working were doing things different and rather than say nothing I decided to fail a few calls to maybe speak with a senior person. I was previously told not to question things and had that put into an interim. I felt that if I continued to ask questions people might get annoyed or think I was a troublemaker.  I thought it would be worth failing a few calls rather than customers given wrong lending.

I was sent a Written warning email and had chats regarding failed calls but felt that a written warning was excessive considering I was trying to help. I understand the importance of compliance and none of the customers were impacted by what I was doing. I questioned the warning for weeks and once I signed it, I asked to move out of that area. I didn’t want to lose my job as I had a new baby and a house to pay for.. Ethically for me there was some issues. I moved back to cards and for weeks I wondered how it was a written warning.  I called Hr who said it was only a file note. I feel that giving out warnings like that has stopped my chances of progression within the sales environment.

 Following my Warning I decided to use the speak up channels because firstly I wanted to guys in sales to get coaching and to find out a bit more about the warning. The speak up area agreed to call the supervisor, and I was very happy with that. The speak- up decided to make calls outside of that arrangement and have since apologised.. Since then, I have not been going into work and felt that because all these calls from Speak -up were on personal mobiles that maybe people would have thought I was causing problems.  I didn’t feel like I could apply for jobs within or feel comfortable . I do accept people make mistakes and I know that more than most but feel that the 4 system really let me down . I followed on with other Hr partners and very senior members of the Bank who say that all the things I brought up were checked fully and no issues were to be found. Since I have spoken up, lots of those changes have taken place, but everyone still says I was wrong. I have sent over 200 emails to Level 4 or above with examples but have nothing has been acknowledged.

In recent years I have continued to try make people aware but have been told the case is closed. I’ve lost out on my shift allowance, automatic level 2 increase, and job opportunity because I decided doing my job was more important than getting a better job. I have been made out to be a liar because people said nothing was wrong The worst thing I ever did was to speak – up and I feel that no persons should have to go through these issues especially when it's a part of the role.

 In our code of conduct it states that we must come forward and in good faith I did. In December I was offered a V.S payment and decided not to take it, Members of my team were looking for it and applied but were told that the Bank were not offering it. After some back and forward chats with Hr I decided to ask again because I felt that I couldn’t continue to take pay cuts for doing the job. I finished  on the 25th of March after 19 years and feel that offering a redundancy in lieu of lost income leaves people with no options  I didn’t speak-up to make money or try get a vs.  I just wanted people to understand the issues I was bringing up.

I was declined a grievance at the same time where I understand from a newspaper EBS staff were getting paid off for similar situations  I feel that I have been paid off for bringing up protected disclosures. Really I should have been commended considering changes have been made. I have many emails and examples that I have but I am not sure if its best to show them at this stage  I have already sent those on to Senior members. I have engaged with everyone during this process and have nothing bad to say about anyone. I have really enjoyed working and really feel sorrow for having to leave My intension was to just highlight as I would of always done in other areas and moved on. Others seemed to be afraid to speak -up because they thought their job prospects would be hurt. I worked here doing the recession and didn't want the same issues as before. Had I not received a strange written warning or had confidentiality broken I would have been able to go back to Sales, the result of such actions has now led to loss of income, opportunity,  pension payments and most importantly my integrity destroyed.

The expectation is that a staff member be able to go to work and feel safe. My End of year 2022 was a 3c and mentions that had I stayed I would have had no issues meeting targets.  My stats were always very good and really had no more issues compared to others. The speak up area has acknowledged that previous warnings like this have happened and that changes will happen going forward . Again at that point my salary should have been changed. People say that it was my fault for moving back because I requested the move, I was bullied out for speaking up. I asked was there some sort way to query the warning but received nothing back. Giving warnings like that is a form of unfair dismissal. I feel that my wages be updated and backdated as a result of poor practices  I was a level 1 trying to just do my job. someone like me should not have had to go through this alone without any supports. Not to mention have to leave my job.

Based on the Complainant’s acceptance of the Voluntary Severance Terms and Conditions relating to his employment with the Respondent, the Complainant is contractually estopped from bringing and maintaining his Complaints pursuant to the Protected Disclosures Act 2014 & 2018 (as amended).  

The Respondent addressed this matter as a preliminary objection to the Complaints that have been filed and did not enter into evidence in respect of the substantive elements of the Complaints, given the Complaints are subject to contractual estoppel. The Respondent  requested a decision from the Adjudication Officer in respect of this preliminary matter and relied upon the following jurisprudence which allows the Adjudication Officer to issue a decision on a preliminary matter; 

A.                  Guerin v SR Technics Ireland Limited UD969/2009 – wherein the EAT was requested to make a decision on a preliminary matter first before moving to hearing the substance case. Given the significant preliminary points raised, the Tribunal heard the preliminary matter first and reached a decision on same.

B.                  Bus Eireann v SIPTU PTD048/2004 - the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’. 

 In the within Complaint, there would be a considerable saving in both time and expense as the resources of the WRC and the Respondent would not be wasted on an unnecessary substantive hearing. The preliminary issue raised by the Respondent is purely a legal question and no evidence or further information is required to determine same.

 Kevin Stapleton v Acushla Ltd (ADJ-00037399)(2023) The above jurisprudence was affirmed by the WRC.

 Robert Talbot v Twitter International Unlimited Company (ADJ-047734)(2023)

The Adjudication Officer decided proceedings based on consideration of the preliminary issues raised only and relied on jurisprudence such as - Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014 & Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 & B.T.F. v. Director of Public Prosecutions 2 ILRM 367.

 The Respondent relied on the following aspects of the Voluntary Severance Agreement and Terms and Conditions, 

(i)             The offer letter in respect of Voluntary Severance specifically states 

“please read this letter carefully and take independent Legal & Financial Advice, if you wish, before you decide whether to accept the offer”.

“This offer is made subject to the terms and conditions set out in Schedule 2 to this letter (“the Terms and Conditions”)”.

Important – Independent Advice – “this letter constitutes a legal offer. If you accept it then you will create a legal contract between yourself and the Bank to terminate your employment. The terms and conditions have important effects on your relationship with the Bank, including but not limited to the termination of your employment. It also affects your right to bring or continue complaints, grievances and legal proceedings against the Bank”.

(ii)            The Complainant by executing this voluntary severance offer on 26th February confirmed the following; 

a.    “I confirm that I have read and understood the content of this letter, and that I have taken such independent legal and other advice as I deem necessary”.

b.    “That being the case, I confirm that I wish to accept the Bank’s offer for my employment to terminate on the terms and conditions set out in this letter. 

(iii)          The Terms and Conditions associated with the voluntary severance include (but are not limited to) the following;

a.    Paragraph 1) Your employment with the Bank will terminate on 25/03/2025 (“your Termination Date”)

b.    Paragraph 9) Having been given the opportunity to take independent legal advice this offer is made on the condition that you accept your Severance Payment and the other terms of this offer in full and final settlement of all claims and potential claims that you have or may have against the Bank, its officers, employees and agents arising out of

your employment and its termination whether arising under common law, statute or otherwise, including but not limited to:

                                       i.     Claims under the legislation listed in Schedule 3 to this letter;

                                      ii.     Any current grievance or complaint which you have in relation to your employment (whether formal or informal), which is deemed to be withdrawn with effect from the date on which you sign the letter;

                                    iii.     ….

c.     Schedule 3 – THE LEGISLATION REFERRED TO IN PARAGRAPH 9 OF THE TERMS AND CONDITIONS …..

xxxi) Protected Disclosures Act 2014

xxxii) Protected Disclosures (Amendment) Act 2018. 

On 25th March 2025, the Complainant received a Severance Payment of €61,076 made up of €20,821 as statutory redundancy payment and €40,255 as an ex-gratia payment in accordance with a collective labour agreement between the Respondent and the Financial Services Union. Accordingly, the Respondent has complied with the terms and conditions of the Voluntary Severance Agreement and consideration has been given to affect the terms and conditions between the parties to the Agreement. 

 The Respondent relied on the following precedent cases in respect of the validity and enforceability of the severance agreement that the Complainant has executed and is therefore estopped from proceeding with the Complaints.

 1. Donal Hurley v Royal Yacht Club [1997] ELR 225 

 The court considered a waiver clause in the context of the Unfair Dismissals legislation and held that there must be informed consent to such a waiver. There were 2 limbs to the test:

•                 that the employee should be advised of their entitlements under employment legislation and that any agreement or compromise should have listed the various Acts which were applicable or at least made it clear that the employee should take them into account, and  

•                 that the employee should be advised in writing that he should take appropriate advice, which presumably in this case would be legal advice.

 The Voluntary Severance Agreement and Terms and Conditions executed by the Complainant clearly meets the above test. 

 2. Sunday Newspapers ltd v Kinsella and Bradley [2008] 19 ELR 53

 An employee being offered a severance package was entitled to be advised of his entitlements under the employment protection legislation and any agreement or compromise should list the various applicable statutes or at least make it clear that same had been considered by the employee. In addition, the employee should have been advised in writing to seek appropriate advice as to his rights. In the absence of such advice, a severance agreement waiving statutory rights of the employee would be void (applying Hurley). “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 Voluntary Severance Agreement and Terms and Conditions executed by the Complainant clearly meets the above requirements. 

 Healy v Irish Life Assurance (DEC-E2015-002)

 The Equality Officer held that where appropriate steps are followed, a validly executed compromise agreement will be upheld. 

 The Voluntary Severance Agreement and Terms and Conditions executed by the Complainant were validly executed between the parties. 

The Respondent is entitled to rely upon the finality of the Voluntary Severance Agreement and Terms and Conditions between the parties. The Agreement between the parties has met all legal requirements for it to be upheld as a valid agreement, as such, the Complainant is clearly estopped from bringing and maintaining the within Complaints.  

The Complainant applied for a Voluntary Severance Scheme and was accepted by letter from the Respondent on February 21st 2025 which set out the terms of the Agreement and the Complainant accepted the offer of the Voluntary Severance by his signature and acceptance of the terms within on February 26th 2025.  The Respondent submitted that the Complainant, by virtue of having signed the aforementioned waiver, is estopped from bringing and maintaining his complaint under the Act. Nothing in the agreement prevented the Complainant from raising a protected disclosure with the Bank from the date of the offer to his termination date on March 25th 2025. There was absolutely no evidence before me that the Complainant raised a protected disclosure  with the Bank in between these dates. There was no evidence presented to me that could be described as a protected disclosure being made by the Complainant prior to him signing the Voluntary Severance Agreement. There was no evidence presented to me that the Complainant received a written warning.

Decision on the Preliminary Issue

Having carefully considered the wording of the waiver signed by the Complainant, and having regard to the respective submissions made by the parties and the authorities opened to me, the Adjudicator finds that the wording of the waiver is clear and unambiguous. There was no duress placed on the Complainant to sign it. He voluntarily applied for the scheme and signed the waiver having had some seven days to reflect on it and by his own evidence at the Hearing took professional legal advice in respect of it. The document was clear that  the severance payment was in full and final settlement of “Claims under the legislation listed in Schedule 3 to this letter” which included the Protected Disclosure Acts.

It would be inappropriate for the Adjudicator to permit the Complainant, at this point in time, to resile from such a clear and unambiguous agreement that he freely and voluntarily entered into, without any form of duress and with the benefit of legal advice. He was not prohibited from making a Protected Disclosure to the Respondent by the Agreement in between the time he signed the agreement and the date he left. He did not do so.

The Complainant requested that the Decision be anonymised due to the sensitive nature of his history with the Bank. I have considered this matter and decided to use the powers open to me under Section 41 of the Workplace Relations Act 2021 to anonymise the Decision.

Having regard to the binding nature of the waiver agreement entered into by the Complainant in consideration for the benefits he received from his former employer, the Adjudicator determines that he has no jurisdiction to deal with the substantive element of the Complainant’s case.

I deem that I have no jurisdiction to deal with complaint number CA-00069990-001

I deem that I have no jurisdiction to deal with complaint number CA-00069990-002.

Protected Disclosure