Facts: The Plaintiff was employed by the Defendant as a customer service manager from 22nd April 1998, until her employment was terminated by reason of redundancy on 11th August 2015. Following this, the Defendant and the Plaintiff signed a compromise agreement on 17th July 2015 (“Waiver Agreement”). On 12th May 2016, a personal injury summons was issued where the Plaintiff claimed that she was repeatedly required to engage in repetitive movements to work and due to the Defendant’s negligence, she was repeatedly made work in awkward and unsuitable conditions. The Plaintiff claimed that she developed pain in her right shoulder in 2009 and didn’t develope further symptoms until February 2016.
This Interlocutory Injunction application was filed by the Defendant seeking to dismiss the Personal Injuries proceedings on the basis that the proceedings are bound to fail on 3 grounds:
Plaintiff signed the Waiver Agreement,
Claims are statute barred, and
Plaintiff’s inordinate and inexcusable delay in the commencement and conduct of proceedings would have a real risk of an unfair trial.
Decision: Ms Justice Bolger considered the above three preliminary issues in detail in light of the facts of the case and she held as follows:
Waiver agreement: The Defendant contended that the Plaintiff had signed a Waiver Agreement which precluded her from issuing any claims against the Defendants. Ms Justice Bolger noted the relevant clauses of the Waiver Agreement i.e., clauses pertaining to waiver of rights, in particular personal injury claims and that the Agreement stated that the Plaintiff received independent legal advice prior to signing. The Plaintiff in her replying affidavit stated that she had not availed any legal advice as she was not advised to do so. She said that she was under pressure to sign the document as she was keen to leave her employment due to the stressful work environment. As there were no documentation to show otherwise, Ms Justice Bolger observed that the Plaintiff was neither advised to get independent legal advice nor was she offered any opportunity to do so. The Defendant, instead, stated in the Waiver Agreement that she had taken legal advice. Ms Justice Bolger relied on Board of Management of Malahide Community School v Conaty  IEHC 486, where Simons J found that
“…as a matter of contract law, an employer who requests an employee to agree to inferior terms and conditions, which involve the loss of statutory rights, is required to explain the precise legal effect of those changes to the employee. This implied term is part of the implied obligation of mutual trust and confidence between an employer and employee. It is also necessary to reflect the unequal bargaining power between an employer and employee.”
Ms Justice Bolger observed that the existence of the implied obligation of mutual trust and confidence is well established in Irish Law and on that basis rejected the Defendants’ reliance on case law involving mortgage agreements. Ms Justice Bolger noted that the Plaintiff contended that she was pressured to sign the Waiver Agreement and therefore considered it appropriate for this aspect of the Defendants’ application to be heard by the trial judge with the benefit of oral evidence.
Statute of Limitation: The Defendant contended that the Plaintiff had knowledge of an injury sustained due to alleged work practices prior to 5th February 2014, i.e. 2 years before the issuance of the Personal Injury Claim and hence the claim is statute barred. The Plaintiff sought to rely on an alleged change in her working conditions in early 2014 which may have led to a deterioration in her symptoms such that she required surgery in September 2015 and then a further surgery in January 2016. To determine the Plaintiff’s date of knowledge as per Section 2(1) of the Statute of Limitation Amendment Act, 1991, Ms Justice Bolger noted that the letter between Dr Anjun and Dr Clooney of January 2014 (that the Defendant relied on) did not sufficiently constitute clear evidence and hence should be determined by the trial judge as a preliminary issue but with the benefit of oral evidence.
Delay: Ms Justice Bolger noted that the Plaintiff did not seek to excuse the delay but contended that they were not inordinate periods of delay. The Defendant did not provide any evidence of how this delay would have serious prejudice. Ms Justice Bolger relied on Mangan v Dockeray  IESC 67 and Calvart v Stollznow 2 NSWLR 749 as approved in Hogan v Jones 1 ILRM 512 and stated that the Defendant did not establish that the Plaintiff was guilty of inordinate and unreasonable delay which would give rise to substantial risk of an unfair trial and/or serious prejudice to the defendant, and therefore refused the application to dismiss for delay.
Ms Justice Bolger stated that she was not satisfied that the Plaintiff’s claim was bound to fail in the light of the above. Ms Justice Bolger concluded that the issues in relation to the Waiver Agreement and Statute of Limitation should be dealt with by the trial judge as a preliminary issue with the benefit of oral evidence and dismissed the proceedings in relation to the delay.
Takeaway for the Employers: It cannot be emphasised enough that employers must encourage an employee to get legal advice before signing any agreement waiving his/her statutory rights and to have this encouragement noted in writing. Furthermore, if the employee refuses to get legal advice then the employer must go through the meaning and consequences of the waiver in front of a witness before he/she signs it and have a memo signed by the employee and witness noting that the employer fully explained the waiver and its consequences to the employee prior to signing it. Also, do not put an employee under pressure to sign the agreement on the same day as presenting it to the employee.