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WRC Sets Aside Waiver And Considers Low Level of Ex-Gratia Payment In Finding Of Unfair Dismissal

Facts
The Workplace Relations Commission (“WRC”) has held that an employee was unfairly dismissed in circumstances were although a genuine redundancy existed, the manner in which the redundancy was effected was procedurally flawed. In addition to this, the claimant had signed a waiver purporting to preclude him from bringing a case under the Unfair Dismissals Acts 1977 – 2015 (“the Acts“) and received an ex-gratia payment. However, despite this, the WRC held that the claimant had signed the waiver under duress without legal advice and as such was entitled to bring a claim under the Acts. The employee alleged that he had been unfairly selected for redundancy on ground of age.

The respondent had informed the claimant that the Software Company was restructuring globally and that the claimant’s duties would now be carried out in the United States of America. The claimant was informed that he would be consulted with regard to the proposed redundancies and that alternative positions would be considered. The respondent stated that they could not find an alternative position for the claimant and as such his employment was now redundant.

Findings
The Adjudicator considered all of the facts of the case and held that although a genuine redundancy existed, the claimant had been unfairly dismissed. In summary the Adjudicator looked at the following;

In view of the above, the adjudicator held that the claimant had been unfairly dismissed and awarded him six months basic salary. The sum was reduced to take into account that the claimant had been directed to take legal advice but had chosen not to. This was held to be a genuine redundancy but the procedures followed in effecting same were flawed in respect of the lack of true consultation. It is extraordinary that the Adjudicator decided that he had jurisdiction to set aside a waiver and take into account the amount of an ex-gratia payment sum as a factor to illustrate that the Respondent’s actions were not within the “band of reasonableness” and imparted a decision of unfair dismissal. It will be interesting to see if this is appealed.

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For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitors.ie or +353 1 6698550
28th September 2018

Anne O’Connell
Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2
www.aocsolicitors.ie

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