Keelings Retail Unlimited Company (Represented by Irish Business and Employers' Confederation) v Wasim Haskiya (Represented by Midland Legal Solicitors)
| Jurisdiction | Ireland |
| Judgment Date | 17 August 2020 |
| Judgment citation (vLex) | [2020] 8 JIEC 1702 |
| Docket Number | FULL RECOMMENDATION ADJ-00012963 CA-00017082-001 DETERMINATION NO.UDD2023 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
UD/19/96
ADJ-00012963 CA-00017082-001
DETERMINATION NO.UDD2023
Labour Court
Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms Tanham
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
1. Appeal of Adjudication Officer Decision No(s) ADJ-00012963 CA-00017082-001.
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 3 May 2019. A Labour Court hearing took place on the 5 August 2020. The following is the Determination of the Court:
This is an appeal by Wasim Haskiya (the Appellant) against the Decision of an Adjudication Officer given under the Unfair Dismissals Act, 1977 (the Act) in a dispute with Keelings Retail UC (the Respondent). The Adjudication Officer decided that a ‘Terms of Settlement’ agreement reached between the parties upon the termination of the Appellant's employment amounted to a waiver entered into by the Appellant such that that he had accepted terms in full and final settlement of all claims against the Respondent and waived his rights under employment legislation specified in the agreement. The Act was identified in the agreement as legislation in respect of which the Appellant waived his rights.
The Act at Section 6(1) deems the dismissal of an employee, for the purposes of the Act, to be an unfair dismissal unless there were substantial grounds justifying the dismissal. The Respondent, at the hearing of the Court, advised the Court that the only matter in contest before the Court and consequently the only ‘defence’ of the Respondent, was the proposition that the Court lacked jurisdiction in this matter by virtue of a ‘Terms of Settlement’ agreement under the terms of which the Appellant waived his rights under the Act.
In light of this submission the Court in the within appeal is required only to address the matters arising from the undisputed existence of the settlement agreement. The Court's decision on that matter will dispose of the entire matter.
The Act at Section 13 provides as follows:
• 13.—A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this 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.
The Court heard extensive submissions from the parties. The Court also heard evidence from Mr Des Ferris (a manager of the Respondent at the material time) and from the Appellant. Having considered all of this material the Court is satisfied that the relevant undisputed facts are as follows:
The employment of the Appellant was terminated on 18 th August 2017.
On 15 th August 2017 at approximately 3.00pm, the Appellant was advised that his position was to be made redundant and his employment terminated as a result. On that date he was provided with a covering letter and documentation setting out his statutory entitlement together with the detail of ex-gratia arrangements proposed to apply to him on the termination of his employment.
The Respondent afforded the Appellant paid time off (of either one day according to the Appellant or of two days according to the Respondent manager) with effect from the end of the Appellant's working day at 3.30pm on 15 th August 2017.
The Appellant and the Respondent's manager engaged further at a meeting on 17 th August 2018. At that meeting the Appellant sought a factual correction as regards the calculation of his statutory entitlements and that was agreed to by the Respondent's manager following consultation by him with the finance department of the Respondent.
The Appellant and the Respondent's manager and Financial Controller signed a document entitled ‘Terms of Settlement’ and dated 17 th August 2017. That document, in relevant part, states as follows:
“The terms herein are to be in full and final settlement of all claims arising from the Claimant's employment with Keelings and / or the termination thereof, howsoever arising whether by statute, common law or equity, in particular any entitlements or claims under..[a range of stated legislation including the Act]”
and
“I confirm that this document has been read over and explained to me prior to my signing it and that accordingly I both fully understand and accept the contents of this document in full”
The Respondent contends that the Appellant, on 17 th August 2017, signed a ‘Terms of Settlement’ agreement wherein he had waived his statutory rights under the Act and a range of other legislation. The Respondent made clear to the Court that its entire defence to the within complaint rested upon the contention that the Court was deprived of jurisdiction by reason of the existence of the ‘Terms of Settlement’ agreement.
The Respondent submitted that it had reviewed the Appellant's role over a period of months and decided that the position was redundant. The Appellant was informed of that decision on 15 th August 2017 and he was advised that his employment would terminate on 18 th August 2017.
The Respondent provided the Appellant with details of the terms upon which the redundancy would take place which included both statutory and ex-gratia payments. He was, on 15th August, provided with a letter incorrectly dated the 14th August 2017 which, inter alia, contained following passage
• ‘The ex-gratia payment however is subject to your acceptance of our standard company termination agreement. I have given you a draft copy of this to take away for consideration and in order that you can seek advice on the details contained in it if you so wish’
The Respondent provided the Appellant with two paid days off to consider the matter and to take advice if he wished. The Appellant however attended the workplace on 17 th August and met with the Respondent. He asked for the calculation of his statutory entitlement to be corrected and that was done following consultation with the appropriate department in the enterprise. The Appellant, the Respondent's manager and the financial controller all signed the document and the matter was concluded with a handshake.
The Respondent submitted that the Court is not permitted by the Act to go behind the terms of a valid waiver agreement. The Respondent referred the Court to UDD1868 Starrus Echo Holdings Ltd t/a Greenstar v Gerald O'Reilly wherein this Court stated
• ‘Having considered the parties' written and oral submissions, the Court finds that it does not have jurisdiction to go behind the waiver agreement entered into by the parties’
Mr Des Ferris, a manager of the Respondent gave testimony to the hearing.
He said that he met the Appellant on 15 th August and took him through the fact that his position was being made redundant and the detail of the terms to apply to that redundancy. He gave him a letter dated 14 th August which accompanied other documentation and which the Appellant was told he could take away for consideration and in order that he could take advice if he wished. Mr Ferris also encouraged the Appellant at the meeting to take advice. The witness could not recall having encouraged the Appellant to take legal advice.
The witness said that he advised the Appellant that he was being afforded two days' paid leave in order to think about the matter of the redundancy and the Respondent's offer of an ex-gratia payment. He asked the Appellant to return on the 18 th August.
Mr Ferris stated that he gave the Appellant the letter of the 14 th August together with details of the offer of statutory and ex-gratia payments. He could not recall what other documentation may...
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