EDA2626

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00048678 (CA-00059773-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 10 October 2024. A Labour Court hearing took place on 22 April 2026.  

The following is the Determination of the Court.

DETERMINATION:

Background

 This is an appeal by the Respondent of Adjudication Officer’s Decision ADJ-000488678. The Adjudication Officer held that under Section 79 of the Employment Equality Acts 1998-2015 that they were required to make a decision in relation to the preliminary issue. The Adjudication Officer held that the waiver contained in the settlement agreement was not valid and enforceable.

Preliminary issue

1 Complainants submissions and evidence

 The Complainant confirmed that he wanted to give evidence to the Court and was sworn in. The Complainant stated that he acknowledged signing a settlement agreement on 3 May 2023 but that he did so under emotional stress which affected his ability to fully understand the legal implications of waiving his rights. He confirmed that he had Union representation at all stages but stated that as far as he knows his Union representatives were not legally qualified. It was his submission that the Union advice did not meet the legal standard for making such a serious decision.  The Complainant submitted that it was a legal necessity to get independent professional legal advice before waiving his rights and it was a fundamental failure by the Respondent not to provide him with his own qualified legal counsel and was a serious violation of his rights.

The Complainant sought to rely on Healy v Irish Life Assurance and Darbey v St Patricks Hospital which he submitted underscored the binding nature of full and final settlements and the right to be fully informed of legal rights. 

He also citied Keeling’s Retail Unlimited Company and Wasim Haskiya (UDD2023) and Hurley v Royal Yacht Club [1997] ELR 225,which he submitted established that a waiver was unenforceable if the individual had not received independent legal advice.

The Complainant raised  the following issues in relation to the waiver document;  the agreement was signed by Unite, but there was no date next to the signature, a copy of the agreement was sent to his work email but he did not have access to same as he was not in work on the Friday, missing section numbers in the text of the document, incorrect reference to her instead of him, lack of company logo on the agreement and general lack of attention to detail.  He believed these were all fatal flaws in the agreement and therefore the agreement could not be enforced. It was his evidence that €25,000 felt inadequate and did not seem to fairly reflect his twenty-seven years of service. He confirmed to the Court that he had not returned the money to the Respondent.

Under cross examination by Ms Ennis BL the Complainant accepted that he had received a disciplinary warning regarding his work and his attendance and in January 2023 he received a final written warning. He confirmed that he did not appeal that warning. He accepted that these warnings he had received were the context in which discussions around an exit settlement took place. He stated that the Union Official told him that he had too many warnings and if he didn’t take the settlement, he would be managed out the door. The Union negotiated a settlement which he was considering but the Respondent later withdrew it. It was his evidence that at the time he was not aware that the offer was time limited. He asked the Union to look to have the offer of €25,000 put back on the table. He confirmed that a friend had advised him to take the money. He received a text from the Union Official to tell him the offer was back on the table and that he was not required to attend the office until the 3 May 2023 when he needed to go in to sign the agreement.

On 3 May 2023 he attended at the office to sign the agreement. He agreed that he had met his shop steward on the day.  He stated that he had no recollection of  the shop stewardgetting him a drink of water, but he accepted that he read through the agreement on the day. He also accepted that he understood his employment would end on 3 May 2023. Ms Ennis BL asked the Complainant what he thought he was receiving the €25,000 for. His evidence was that it was part of the settlement agreement. He accepted that clause 2 of the agreement identified the Employment Equality Act as one of the pieces of legislation where he was waiving his right to take a complaint against the Respondent.  He accepted that he did sign the agreement and that on the 16 May he sent an email looking for a reference. He also accepted that at that stage he raised no concerns about the agreement and did not mention that he regretted signing it or that he had not understood it.

He confirmed that he had emailed on 16 May 2023 looking for a reference and that that he had sent two emails on 15 June 2023 looking for payment of €25k and indicating that he was not happy with the reference he had received. In the email he queried why the payment was put through payroll when it was supposed to be tax free. He requested that the outstanding money be sent the next day and indicated he would be getting a professional third party to assist him.  The Complainant accepted that in those emails he did not indicate that he was looking to withdraw from the agreement or was in anyway unhappy with the agreement. He confirmed that on 18 June 2023 he sent a further emailed advising that he had an appointment the previous Tuesday with civil rights and that it was not right that they were making him wait longer for his settlement payment as the agreement was binding.  The Complainant confirmed that he sent an email on 17 July 2023 querying the payment he received and noting that he had not received the full €25,000. He had received €20,000 and had expected a further €5,000 on 10 July but had only received €987.  He confirmed that he did not say in that email that he was unhappy with the agreement or the settlement figure.

He accepted that a term of the agreement was that he would receive payment for the month of May, but this would be deducted from the settlement amount. It was put to the Complainant that the Shop Steward in his evidence will say that he advised the Complainant to get legal advice, but the Complainants position was that he did not need to as his partner had legal knowledge. The Complainant stated that he had no knowledge of saying this. It was put to him by Ms Ennis BL that he had a selective view of the agreement in that he wanted the Respondent to be bound by it and pay him, but he did not want to be bound by the terms of the agreement.

 In response to a question from the Court the Complainant stated that he first decided he was not happy with the agreement at some stage after he received the money, but he was not sure exactly when. Initially he informed the Court that he had told the Respondent he was unhappy, but he later recanted that statement.  He confirmed that he had not informed the Respondent prior to lodging his complaint to the WRC in November 2023 that he had an issue with the settlement agreement.

2 Respondents submission

Ms Ennis BL submitted on behalf of the Respondent that the Complainant was employed from July 1996 to May 2023 and had been the subject of numerous disciplinary sanctions up to December 2022 relating to persistent absences and poor-quality work. Following a disciplinary hearing in December 2022, the Complainant was placed on a Performance Improvement Plan (PIP) and a sanction of a Final Written Warning for a period of 12 months was applied. This was for both poor quality work and persistence absences. On the 23 March 2023 following a further disciplinary investigation arising from non-compliance with the PIP and serious quality and capacity issues, the Complainant attended a disciplinary meeting. By letter of 4 April 2023, he was placed on a further written warning for nine months and informed that his work would continue to be monitored and any further re-occurrence may result in further disciplinary action up to and including dismissal. The Complainant did not appeal this outcome.

Following this outcome the Complainants Trade Union representative engaged with the Respondent in respect of reaching an exit agreement. The Trade Union representative had a number of phone calls and text messages with the Complainant on 28 April 2023 to advise of the details of the agreement. During the discussions with his Union Representative the Complainant confirmed that he wished to accept the settlement terms. He was informed that it had been agreed that he would not attend work until the proposed meeting for the signing of the agreement on 3 May 2023. The Union Official signed the agreement and sent a copy to the Complainant on his work email. The Complainant attended the office on 3 May 2023 and was accompanied by a Union colleague. At no stage did he ask for a delay to the execution of the agreement or request additional time to consider same. At all times he was represented by his Union. The severance agreement contains a number of clauses one of which states that the Complainant had received professional advice from his Union Representative. The Complainant having read the agreement signed it.

 The Complainant had numerous email engagements with the Respondent during the months of May June and July.  In an email dated 18 June 2023 the Complainant sought payment of the settlement amount advising that the agreement was binding. Clause 2 of the agreement clearly identifies the waiver as agreed between the parties and the language in the clause is clear and unambiguous. The agreement also contains a clause where he acknowledges and agrees that he has received independent advice from his Trade Union, that the terms and conditions had been explained to him, and that he was fully aware of the legal meaning and effect of the agreement.

 Ms Ennis BL on behalf of the Respondent opened the case of Hurley v the Royal Yacht Club [1997] ELR 225 which sets out the principles around enforcement of waiver and release clauses. It was their submission that the settlement agreement complies with those principles.  The agreement was negotiated at his behest by his Trade Union Official and he entered into the agreement with informed consent. The Respondent also opened Healy v Irish Life Assurance plc, Dec-E2015-002 where the Equality officer relying on the High Court decision in  Sunday Newspapers Limited and Kinsella and Bradley 2008E.L.R 53 stated “ in the instant case, the agreement is expressly stated to be in full and final settlement and that means what it says… there was some meaningful discussion and negotiation.. professional advice of an appropriate character before the agreement was signed”..   and Sunday World Newspapers Ltd and Stephen Kinsella and Luke Bradley FTD066 where the Labour Court stated that “it is clear from the authorities that a provision in 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, and an attempt to exclude or limit the Act, which is void and unenforceable.”

Ms Ennis BL submitted that it is clear based on the facts of this case this was a genuine attempt by the Union Official to get the best possible outcome for the Complainant. In this case the Complainant was advised by both his Union Official and also by a friend who he indicated has legal knowledge. 

3 Witnesses for the Respondent

 The witness informed the Court that he was a production operator for the Respondent and a Union shop steward. If a member is in difficulty the Union Committee will meet as a group to discuss what is happening.  The Complainant had been represented by various committee members during the various processes he was engaged in and on occasion had not used the Union. On the last occasion as the local representative, he felt that the Complainant was in serious trouble and in danger of losing his job.  He went to HR early in April 2023 and had a discussion with them. They showed him the Complainants warnings and PIP. He was pleading with them not to remove the Complainant from the site he asked if they were open to doing an exit package. They initially offered €2,000 he asked for €80,000.  He informed the Complainant of the discussions and was told to see what he could get as a final figure. The final figure was €25,000 and a reference.

He informed the Complainant of the offer and told him he could contact the Union Official and discuss it with him. The Complainant informed him that he would consider the offer and that he had a friend who had legal training who was advising him. Over the next two and a half weeks he checked in with the Complainant who was still considering the offer. He also called into HR looking for updates, they advised that they had not received a response to the offer and were going to take it off the table. It was the witness’s evidence that when he told the Complainant the Respondent was considering taking the deal off the table as it was a time limited offer, the Complainant said he would accept the offer.  He asked the witnesses to see if he could get the deal back on the table.

 Following further discussions with HR it was agreed that the deal would be signed on 3 May 2023 and that the witness would be present. On the day he met the Complainant in the locker area and asked if he wanted to go for a tea or coffee, but he said no. They went to HR and the Complainant was asked to read the document then they all signed it. The Complainant thanked him for all his efforts and said he was relieved it was over. The witness confirmed that he had asked the Complainant if he wanted to take a break to read the document, but the Complainant said no.

4 Discussion and Determination

 The following facts were not in dispute.

There were ongoing negotiations in respect of the settlement agreement running up to 3 May 2023 between the Respondent and the Complainants Union representative at the request of the Complainant.

 The Union Official and Shop steward engaged with the Complainant in relation to the settlement offer in the three weeks prior to the signing date.

 The Worker was first informed of the proposal by his Union three weeks before the signing date. 

 The Union Official had sight of the agreement in advance of 3 May 2023, but the Complainant did not have sight of the agreement until that date at which point he was provided with a copy of the agreement and given an opportunity to read it.

The Complainant signed the agreement on 3 May 2023 and was given a copy of same. 

Under the terms of the agreement the money was to be paid on 10 June 2023, and Complainant was to be provided with a reference.  The money was not paid on that date.

 The money was paid in two instalments €20,000 on 19 June 2023 and €5,000 less €3,000 overpayment for the month of May and less €1,000 overpayment for holiday pay, leaving a balance of just under €1,000 paid on 10 July 2023.

 During the months May, June and July the Complainant had multiple engagements by email with the Respondent the latest being on the 20 July 2023 when he requested that the payslips for the payments be sent to his home address.

At no stage during those interactions did the Complainant raise any issue about any of the terms of the agreement or indicate any dissatisfaction with the terms of the agreement. In fact, he was insisting on the implementation of the agreement.

It was the Complainant evidence that he did not know when he realised that he was unhappy with the terms of the agreement but stated that it was after he had received all the payments.

He confirmed that he did not inform the Respondent at any time in advance of lodging his complaint with the WRC that he was unhappy with the terms of the agreement and that he had not made any effort to return the payment to the Respondent.

In Sunday World Newspaper Ltd and Steven Kinsella & Luke Bradley FTD066 the Labour Court set out   the following list of matters that should be taken into consideration.

1) the terms of the 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.

2) an agreement to waive statutory rights must be supported by adequate consideration.

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

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

5) 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

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

Having applied these principles to the facts of the instant case and in particular the agreed facts as set out above, the Court concludes that the waiver contained in the agreement is valid and enforceable.  The Complainant was in a difficult position at that time and by his own evidence was facing potential dismissal. He asked his Union to try and get a deal for him. The evidence of the Shop Steward was that there were negotiations which cumulated in the agreement and a final figure of €25,000 and a reference. The Complainant had two and half weeks to consider this and informed his shop steward that he was taking advise from a friend who had legal training. His own evidence was that his friend told him to accept the settlement.

 While it is not disputed that the Complainant did not receive the draft document that was emailed to him a few days in advance of the meeting. He did have ample time between the signing of the document and the payment of the settlement which was due to be made on 10 June 2023 but was not actually paid until 19 June 2023 and 10th July 2023 to take advice and raise any concerns he had about the terms of the settlement.

During that period the Complainant had multiple engagements with the Respondent in which he was seeking the implementation of the agreement, and in fact reminded the Respondent that the agreement was binding on the parties.  At no stage did he raise any concerns about the terms of the settlement that he had signed up to. His own evidence was that he did not know when he decided that the terms of the settlement were problematic, but it was some time after he had received the final tranche of the settlement money in July and before he lodged his complaint on 2 November 2023.  Taking all of the above into account, the Court determines that at the time of implementation of the agreement the Complainant had a copy of the agreement for circa six weeks. The Court finds that this was sufficient time for the Complainant to familiarise himself with the content of same, seek legal advice if he felt the need to and to raise any concerns he had with the Respondent. During that period of time the Complainant did not raise any concerns with the Respondent. Instead, he actively sought implementation of the agreement. On that basis the Court finds that the waiver contained in the agreement is valid and enforceable.

 The appeal succeeds. The decision of the Adjudication Officer is overturned.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
30/06/2026	Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Mr Aidan Ralph, Court Secretary.