28 Nov Waiver Agreements
In a recently published case (ADJ – 00000575), an Adjudication Officer found as a preliminary issue that he had no jurisdiction to hear a complaint of unfair dismissal as the claimant had not been pressured into signing a waiver and had been afforded the opportunity to seek legal advice which he had declined.
The claimant was employed as a Technical Team Lead from March 2013 to July 2015 and was paid an annual salary of almost €54,000. On the 9th July 2015 he signed a waiver in acceptance of a sum of €18,216, inclusive of statutory redundancy and in full and final settlement of all claims and actions arising from his employment and termination of his employment due to redundancy on 31st July 2015. The respondent asserted that the Adjudicator had no authority to hear any claim under the Unfair Dismissals Acts 1977 – 2001 on the basis of this signed waiver, which specifically referred to the Unfair Dismissal legislation. The respondent gave evidence that the claimant was clearly advised as per the waiver document to seek legal advice which he chose not to do. The respondent further contended that a genuine redundancy existed and the claimant was fairly selected and that he was never coerced or put under any pressure to sign the waiver agreement.
The claimant contended that his redundancy was not a genuine redundancy as his position was filled a number of weeks after his employment was terminated. He also submitted that he was not given the opportunity to fully consider and take legal advice on the matter and that he had felt pressurised by HR to sign and return the waiver.
The Adjudicator referred to the established legal principle of “informed consent” being present when an employee contracts out of their legal rights and the need for an employee to be advised in writing of the right to take appropriate advice, as well as the need to be very specific as to what exactly is being contracted out of in the waiver agreement.
The Adjudicator referred to the claimant’s own complaint submission in which he stated that he had signed the waiver in good faith and then had learnt that his position had not been made redundant. The Adjudicator decided that he preferred the respondent’s evidence and that he was satisfied that the claimant had not been coerced into signing the waiver but rather that he had declined to seek appropriate advice on the matter, as opposed to not being afforded the opportunity to take advice. The Adjudicator also noted that the claimant had been made aware of the specific Acts that he could not take a claim under after signing the waiver. It was therefore determined he had no jurisdiction to hear the claim of unfair dismissal.
However as a word of caution employers should not assume that the mere existence of a signed waiver will be sufficient to prevent a claim being heard and it is critical that there is clear proof in writing of the employee having had the opportunity to take legal advice or other advice (e.g from a trade union) as well as the need for any waiver agreement to be explicitly clear on what it applies to.