Complainant

Respondent

Parties

Rory  Courell

Cook Medical Europe Limited

Representatives

 Thomas J. Walsh Solicitors

Mairead Guiness BL instructed by  Lewis Silkin Ireland LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059664-001

27/10/2023

The Complainant was employed as a Sales Account Specialist and was made redundant on 30/4/2023. The Complainant signed a Compromise Agreement which stated the settlement arrived at was in full and final settlement of all claims under a multiple of employment legislation Acts  inclusive of the Unfair Dismissals Act and the Redundancy Payments Act. The Complainant submitted a complaint that he found out subsequent to his redundancy that his redundancy was invalid, in his view, and that as the redundancy was invalid he claimed it falls that the Compromise Agreement he signed should be null and void. The Representatives made initial brief submissions on the issue at the Hearing. The Representatives were requested to prepare, submit and exchange legal argument on the preliminary issue after the Hearing, and they agreed that the Adjudicator would issue a Decision on this Preliminary matter.

The following submission is being filed at the request of Adjudication Officer, following a brief hearing at the WRC offices in Ennis, County Clare on 5th March, 2026.

Evidence was heard under oath from the Complainant surrounding the circumstances of the termination of his employment and the execution of a Compromise Agreement in advance of the termination on the basis that his position was being made redundant.

The previous Submission filed sets out the background to the case and the Adjudication Officer requested that the parties would file a brief submission addressing the issue of his jurisdiction to proceed to hear the substantive case in circumstances where the Respondent has objected to same and alleges that the WRC has no such jurisdiction to proceed.

Relevant Issues; The Complainant has stated under oath that he was informed that the reason for the termination of his employment was that his position was being made redundant. He has stated that he subsequently became aware that this was utterly false and therefore the basis of him entering into a Compromise Agreement on termination of employment which expressly states that his position was being terminated by reason of redundancy, was based on a falsehood and therefore could not be said to have been executed in circumstances of informed consent. It is submitted that the WRC clearly has jurisdiction to hear the Unfair Dismissal case. It is noted that in response to the Complainant’s evidence at the hearing on the 5th March, 2026, the employer failed or perhaps elected not to call evidence in reply to the Complainant’s assertions that he believed he entered into the agreement on the basis of a misrepresentation of the facts. It is submitted that the Adjudicator should attach particular importance to that notable position. While it is noted that the Respondent’s submissions deny that any such misrepresentation took place, it is a fact that the only evidence before the Adjudication Officer is that of Mr Courell. He was cross examined, but not as to whether this was a genuine redundancy. Cross examination solely dealt with the assertion that he was paid compensation in waiver of his rights, that he signed the agreement and that he was given the opportunity to take legal advice. There is a wealth of decided cases where the WRC, Labour Court and High Court have found that for a Compromise Agreement to effectively prohibit a Court or a Tribunal from enquiring into a complaint arising out of termination of employment, there must be evidence that the Complainant executed the agreement on the basis of informed consent.

Firstly, section 13 of the Unfair Dismissals Act, 1977 clearly states ‘A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act’. This statutory provision clearly seizes the WRC of the appropriate jurisdiction to hear and consider a complaint, in particular under the Unfair Dismissals Act.

Secondly, it was submitted on behalf of the Respondent that the Labour Court case of Accenture Limited and Sejal Tandel UD/24/78 was helpful to their submission that the WRC has no jurisdiction in the instant case. A few important distinctions need to be drawn. In that case, there was engagement on the terms of the agreement- the ex gratia sum was increased in the course of negotiations and the employee had 2 weeks to seek advice. In contrast to that position, in the instant case, Mr Courell was told there was no room for negotiation, there was no consideration of alternatives and he was definitively left in no doubt that his position was being made redundant. He subsequently discovered that this was false. That is a clearly distinguishable feature of his case. The Tandel case also noted that ‘an employee may waive their statutory rights, if done so on an informed basis’. As matters stand there is zero material in evidence in this case, that Mr Courell made his decision to sign the agreement on an informed basis- in fact the only evidence is that the opposite was true. There were no active claims such as WRC reference numbers when the Compromise Agreement was entered into. This is an important factor in this case. Compromise Agreements are regularly drafted on a specific basis whereby they operate to resolve existing claims filed with the WRC and all other potential actions that may arise at that time. No such active claims existed at the time of execution of the Compromise Agreement.

Reliance is placed on the case of Keelings Retail Unlimited Company and Wasim Haskiya UDD 2023 where the Employer argued that the Labour Court did not have jurisdiction to hear an unfair dismissal case. The Court held that the complainant had signed the settlement agreement in circumstances where no meaningful negotiations had taken place. The Court also noted that the employer made no effort to establish whether the Complainant had received legal advice prior to the execution of the agreement. Evidence has been heard in this case that the Complainant did not get legal advice and that the Agreement was signed in the presence of his brother in law, who is not a solicitor. The Respondent was on notice of this fact as the witness to the Complainant’s signature was clearly not a lawyer and secondly, they did not discharge fees to any solicitor in respect of Mr Courell. This is of particular relevance in a case where Mr Courell has given evidence that there was ‘no negotiation’ and he was left feeling that he had no option but to sign as the employer insisted that his position was being made redundant. Mr Courell gave evidence that he tried to source legal advice locally and that a number that he had been given by the employer to seek further advice was not answered. He also gave evidence that he was informed on a Friday that his position was ‘at risk’ and the following Monday he was told that his position would be made redundant. He described a situation which was a ‘fait accompli’. He needed his reference and was not expecting to have to return to the job market in circumstances where his division of the business was experiencing a growth in sales.

It is submitted that it would be an unlawful infringement of the Complainant’s statutory and Constitutional right to pursue breaches of the law which result in a detriment to the person. Furthermore, the Respondent forwarded the Agreement to Mr Courell via email on 13th April, 2023 at 16.03 (a Thursday)- he was asked to sign and return it as quickly as possible as his 2 week notice period would commence on 15th April, 2023 and employment would terminate on 30th April, 2023. In that pressurised context, the agreement was signed and returned on 19th April, 2023 (a Wednesday) with a weekend period intervening from Friday 14th April to Sunday 16th April, 2023. He was left with a very limited period to get advice and gave evidence of attempting to do so (effectively 4 working days).

Application of Relevant Case Law Further to the case law quoted above, it is important to note the criteria set out in Sunday Newspapers v Kinsella and Bradley FTD6/2006 [2006] ELR 227. This case was overturned by the High Court but the criteria set out by the Court still applies and was not found to be in error. The Court noted ‘a provision on a statute prohibiting contracting out does not prevent parties from lawfully agreeing to settle or compromise claims based on the statute. There is, however, often a subtle but substantial difference between a genuine bargain to settle or dispose of a claim, which is lawful and enforceable, an attempt to exclude or limit the Act which is void and of no effect. The caselaw indicates that the following considerations are relevant in distinguishing the former from the latter: • 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 must 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 dicta in the Keelings case the Court noted the Agreement ‘did not emerge from meaningful negotiations between the parties and consequently it must be construed strictly against the Respondent”. The Court could not find that: • The agreement of the Appellant to waive statutory rights was supported by adequate consideration • The waiver arose from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given • The waiver was based on a free and informed consent given but the Appellant with full knowledge of his legal rights • The employer made efforts to ensure that the Appellant was capable of giving an informed consent although the employer did, by letter dated 14th august, remark that the Appellant could obtain advice if he wished.

Conclusion It is submitted that the above case law, together with the particular facts of this case and grounded upon the evidence of Mr Courell, gives the AO jurisdiction to proceed to hear this case.

 It is further submitted that to request the issuing of a written preliminary decision on this point would be unfair and pre-emptive, in circumstances where the WRC hearing should hear evidence from BOTH sides and allow effective cross examination particularly on how the agreement came into being, what occurred around the time and crucially, whether a true redundancy situation did exist. It would be in breach of fair procedures and the requirement for a fair hearing and allowing both sides to be heard to stop this case from proceeding further, thereby depriving the Complainant the opportunity to cross examine witnesses from the Respondent company. The only way to examine whether this was a true or sham redundancy is to allow the case to proceed to full hearing and that is the only way that the Complainants’ statutory and Constitutional rights would be vindicated.

The following submission is being filed in response to the submission filed by the Complainant in respect of the preliminary jurisdictional point and the law relating to same. This is being done at the request of Adjudication Officer, following a hearing in Ennis, County Clare on 5 March 2026.

Preliminary Issue /Evidence of the Complainant. The evidence that was sought by the Adjudication Officer and given by the Complainant under oath was in respect of the execution of the Compromise Agreement dated 19 April 2023 (the “Compromise Agreement”) in advance of the termination of his employment. The only cross examination that was led by the Respondent was in relation to the execution of the Compromise Agreement. Therefore, to suggest that importance should be attached to the fact that he was not cross-examined on his assertion that “he believed he entered into the [Compromise] Agreement on the basis of a misrepresentation of the facts” is extraordinary in circumstances where the Adjudication Officer directed evidence simply on the execution of the Compromise Agreement. The reason for allowing that evidence, it is submitted, was to see whether or not the execution of the Compromise Agreement satisfies the requirements of Sunday World Newspapers Limited v Kinsella and Bradley 2006 ELR227 (the “Sunday World” case). Therefore, the fact that the Respondent did not cross-examine in relation to the redundancy itself should not be viewed as anything other than in accordance with the Adjudication Officer's directions.

Furthermore, the submissions assert that the Complainant stated in relation to the redundancy “that he subsequently became aware that this was utterly false”. The fact that the Complainant asserts that the redundancy was “utterly false” is immaterial in circumstances where evidence surrounding the redundancy has not been given by the Respondent.

The only matter to be determined by the Adjudication Officer is whether or not he has jurisdiction to hear the case in circumstances where a settlement agreement in full and final settlement of all claims has been signed by the Complainant.

The Law. The Complainant relies on Keelings Retail Unlimited Company and Wasim Haskaya UDD 2023, on the basis that the employer “made no effort” to establish whether the Complainant had received legal advice prior to the execution of the Compromise Agreement and that there was "no negotiation." This case can be distinguished completely from the instant case in circumstances where the Complainant, in that case, was Palestinian and his first language was not English. The Complainant gave evidence in that case that he was unfamiliar with a common law system and did not have a full understanding of his rights at all. In that case, the Complainant gave evidence that he was only given two days to sign and clearly did not have the extensive consultation and engagement which took place between the Complainant and Respondent in this case.

Without prejudice, it is submitted that there is no law supporting that there is an obligation on an employer to satisfy themselves that an employee has in fact taken legal advice. The requirement is to ensure that an employee is advised in writing that they are entitled to take legal advice. It is abundantly clear from the exchanges between the Complainant and Respondent and the Complainant’s sworn evidence that he knew he was entitled to take legal advice, said he was going to take legal advice and ultimately took advice from the Citizens’ Advice Bureau rather than a solicitor.

In terms of arguing that there was “no negotiation” between the parties, that is simply incorrect as is evident from the detailed email exchanges between the Complainant and the Respondent included in the original submissions dealt with in more detail below. The Complainant negotiated to keep his phone and iPad which he was asked not to share, and it was very much an exception. He also negotiated to keep his car for an additional two weeks and the insurance on the car had to be extended to cover that.

In relation to the Complainant's assertion that the case of Accenture Limited and Sejal Tandel UD/24/78 can be distinguished, the Respondent makes the following argument. The Complainant asserts that there was no room for negotiation in the Complainant's own discussion regarding his redundancy. That is factually incorrect in circumstances where in the Respondent's original submissions, there is backwards and forwards negotiation on a number of matters, including extending car insurance until 15 May 2023 so that the Complainant could keep the company car for an additional two weeks. There is also engagement about keeping his phone, iPad and phone number.

It is quite clear from the engagement between the Complainant and the Respondent, in line with the Tandel case, he was waiving his statutory rights on an informed basis. By email dated 18 April 2023, the Complainant confirmed that he was happy that he was allowed to keep the car for an additional two weeks. He also said, “just trying to get clarification if I sign the waiver that it is just a lump sum from the Cook Pension I cannot take, not any other pension. Would EY be able to clarify on this? I have other pensions from previous employers. Happy to sign once I get this clarified. Kind regards.” On the same date, the Respondent gave a detailed reply regarding this query.

In Donal O'Donovan v Xerox IBS Limited, ADJ00044485, Adjudication Officer Catherine Byrne found that she had no jurisdiction to hear the case in circumstances that were similar to the instant case. In that case, the Complainant was informed on 5 August 2022 that his job was being made redundant. It was confirmed in a letter from the HR manager on the same day. He was advised that a redundancy package would be discussed with him, and he had a right to seek legal advice. On 17 August 2022, he received an email with two documents attached. The first contained details of a gross payment comprising of a statutory lump sum and an ex-gratia payment. The second document was what is generally referred to as a “Waiver Agreement” for the Complainant to confirm his acceptance of the payment in full and final settlement of all claims arising from the termination of his employment. The letter included a statement that “these sums are in full and final settlement of all claims arising whatsoever and howsoever from my employment and its termination with the company both under statute and common law.” The final line of the letter referred to the Complainant's right to seek legal advice on the settlement terms “I confirmed that I have been advised of my right to obtain legal advice and have been provided with sufficient time in which to do so.” The Complainant had an initial discussion about redundancy pay, wages and the fact that his contractual notice brought his end date to 30 October 2022. On 27 August 2022, the ex-gratia sum was paid to the Complainant through payroll, and he signed the 17 August 2022 Compromise letter on 31 August 2022. He then submitted a complaint of unfair dismissal, claiming he signed the Compromise letter when he was distressed and in survival mode and was concerned, he would not receive the Compromise payment. He did not take legal advice and said that the Respondent advertised a vacancy for a client manager in November 2022 and argued that his dismissal was a sham redundancy. The Respondent argued that the Adjudication Officer did not have jurisdiction to hear the complaint and submitted that there is no legal obligation on an employer to ensure that an employee gets independent legal advice before signing a Compromise agreement. In concluding that she did not have jurisdiction, the Adjudication Officer stated “The case law referred to at the hearing of this matter goes no further than a finding that an employee must be advised in writing of their entitlement to seek legal advice and nowhere has it been asserted that, for a Compromise agreement to be legally sound, the employee must have taken legal advice.” Taking guidance from the Sunday World case, she was satisfied that the agreement signed by the Complainant was properly constructed and clear in it’s intention to offer this  payment in full and final settlement of any future claims against the Respondent. She was satisfied that the Complainant signed the agreement based on his informed consent to relinquish his rights under this legislation and that he was advised in writing of his entitlement to seek legal advice, and that he freely decided not to do so. She found no evidence of pressure being exerted on the Complainant to sign the agreement and his correspondence with the HR manager showed no sign of distress or not even a modicum of annoyance at his predicament. She was therefore satisfied that the Complainant waived his right to pursue a claim under the Unfair Dismissals Act 1977 and found she had no jurisdiction to investigate his complaint. It is submitted that this case is on all fours with the instant case.

In Starrus Echo Holdings Limited trading as Greenstar and Gerald O'Reilly UDD1868 2018, Adjudication Officer Orla Jones referred to the case of Healy v Irish Life Assurance PLC, where Mr Healy issued High Court proceedings against his employer in 2000. In 2011 he attended talks at which a full and final settlement was reached, documented and signed by all parties. Mr Healy then made a complaint to the Equality Tribunal under the Employment Equality Act 1998, stating he was not aware what was going on at the talks and that he was rushed into making a decision. The Equality Tribunal found that he was estopped from making a complaint because he had entered a settlement agreement in which he had waived all claims arising from the termination of his employment. The position was upheld on appeal to the Labour Court. Relying on that decision and noting that the settlement agreement signed between the parties stated it was “full and final”, she said that this means “full and final”. She noted that the Complainant could not ignore the obligations placed on him by signing the agreement and decided that she did not have jurisdiction to hear the case. Ms Jones referred also to the Supreme Court decision of Doran v Thompson & Sons Limited [1979] 113 ILTR 93, where the Court held in that case that “Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no promise or assurance had been made by him, and then he may be restrained in equity from acting inconsistently with such promise or assurance.”

 In Declan Coleman v Drogheda Lodge Limited ADJ-00034640, the Complainant signed a compromise agreement, having been advised of his right to take legal advice. The Adjudication Officer in that case found she did not have jurisdiction to enquire into the complaints and stated, “I am of the view that by signing the compromise agreement, the Complainant was signalling his agreement to the above clause, which refers to both his right to seek expert, independent legal advice funded by the Respondent and the impediment placed on his ability to pursue future claims against the Respondent in any forum, including the WRC.” In that case, the Complainant stated he had signed the compromise agreement under dispute, and he felt that this gave him the right to revisit the matters contained therein. Citing the conclusions of Mr, Justice Smyth in the Sunday World case, the Adjudication Officer concluded “Again, following the reasoning of Smyth J, I find that it is disingenuous in the extreme of the Complainant to suggest that the agreement he entered where he was offered the opportunity to avail of legal advice which would be funded by the Respondent, could somehow be construed as not representing a full and final settlement and could be cast aside. The Respondent is of the view, correctly in my opinion, that the compromise was binding on both parties.”

For the avoidance of doubt, in the Complainant's own evidence at the hearing on 5 March 2026, he confirmed that he had taken advice from the Citizens Advice Bureau. He engaged with the consultation and was informed of his entitlement to take legal advice which he chose not to do. He engaged in negotiation with the Respondent and secured his phone, iPad and the use of his car for a longer period of time.

The Complainant’s representative keeps reiterating the Labour Court decision in Sunday World Newspapers v Kinsella. However, it is a matter of fact that the decision was overturned in the High Court. What is relevant is the dicta Smyth J in that case where he stated “I accept the submissions of Mr Connaughton SC on behalf of the company that the decided cases indicate that a party may enter into an agreement in relation to his or her statutory rights and the question of whether such rights have been compromised is a matter for the proper construction of the agreement itself. In the instant case the agreement is expressly stated to be in full and final settlement and that means what it says. It says so in express terms referable to the enumerated Acts and all or any employment legislation in respect of any and all outstanding entitlements whether statutory or as yet unstated.”

 It is submitted that on a full analysis of the law and circumstances pertaining to the signing of the Compromise Agreement, the Adjudication Officer does not have jurisdiction to hear this complaint and we would ask that a preliminary decision would be issued in this regard.

I find I have no jurisdiction to hear the substantial complaint due to the signed Compromise Agreement.

Unfair Dismissal