Made redundant after 15 yrs. Just discovered I was not in pension, but I thought I was

[DannyBoyD]

To add on the contract and whose responsibility it is; by way of example.

If the employment contract says ' it is a condition of employment that your garda vetting is up to date'; it is 100% the employer's responsibility to ensure that garda vetting is carried out and renewed as required.

If it's never done or done once and not renewed; it won't be the employee who is fined - it's the company.

in this case, the contract says membership of the pension scheme is a condition of employment; then the OP should have been opted-in if they were deemed to be an 'eligible employee'.

The contract or other document should define this eligibility, but in general terms it often refers to an employee who has completed their probationary period.

An assessment of a compensation amount might well take into account the OPs role in not checking deductions; but the employer doesn't get off the hook on that alone.

 

[Clamball]

Your solicitor will advise you, but you can opt to sign the waiver with a clause o our current dispute re pension.

I went to look for my contract of employment and it states “ “the appointment is subject to you agreeing to participate in the xxxcompany namexxx Superannuation Scheme”

So something similar to yours but not exactly the same.

 

[Sunny]

That's to protect company against an unfair dismissals claim.

I'm a tad cynical, but I believe most of these 'redundancies' are in fact dismissals, and they pay 2 or more years of salary so you won't do any better by claiming unfair dismissal where 2 years salary is the max payout anyway.

OP can sign the waiver, it doesn't prevent them from bringing a claim for compensation in respect of what they believe to be a breach of their contract whilst they were in employment, and for which they have a legitimate right to issue a claim.

Whether or not that claim succeeds is another story; but they have the right to submit a claim.

Reducing the redundancy package based on the OP exercising that right is retaliation and won't be accepted should this get to a WRC hearing.

IANAL

You need to stop giving wrong advice.

Signing the waiver does prevent them from bringing ANY claim against the company. Including employment law. That is why companies will often pay for independent legal advice for employees in these circumstances because employees are basically signing away all legal rights and any sign of the employee being forced to sign it without knowing what they are doing is extremely frowned upon. The employer often prefers to ensure the employees have taken legal advice and therfore they will pay for it.

I have been through two redundancies with multi nationals. One clean and one messy. Two times I was provided with legal advice from leading employment firms in the country. Both times it was made perfectly clear to me. The voluntary nature of the payment was made on exchange for me signing the waiver. I could refuse and see where the cards fell but was strongly advised not to. The idea that you can put in clauses etc is just nonsensical.

 

[DannyBoyD]

@Sunny Sorry to hear you've lost your job twice that must have been difficult; as I've already commented, many of these job losses are not truly redundancies and the payoff is to protect the company from unfair dismissal claims.

IANAL, neither are you.

 

[Sunny]

@Sunny Sorry to hear you've lost your job twice that must have been difficult; as I've already commented, many of these job losses are not truly redundancies and the payoff is to protect the company from unfair dismissal claims.

IANAL, neither are you.

Danny, I am not debating this with you anymore. Let the OP go to his solicitor. I am fully aware of what these waivers are and how they are worded. They don't just prevent any claims for unfair dismissal. They prevent ALL legal claims against the company. The waiver will actually list about 20 pieces of legislation that the employee loses rights to claim under. And even at that, they will make it clear that the list is not exhaustive. The employee loses all legal rights.

Again, the OP is free not to sign the waiver. My only point is that they need to deal with the redundancy and any possible issue with the pension as one when talking to the solicitor. If he signs the waiver, he can forget about taking action in the future.

It might be worth getting a solicitors letter with regard to the pension as depending how keen they are to get the redundancies done and closed, they might be more willing to reach an understanding. However, since they are not closing down and operating to timetable, that's unlikely.

As I said, been through this twice. Both times, we thought we could negotiate with the company. Our solicitor made clear to us that if we want the package, all the power lies with the company. Only clause we got removed was the right of the company to come after us for any losses discovered in the future.

These companies are not fools. They have probably already checked the pension issue with their legal team and were told there is no issue. Especially since it has come up as part of a redundancy which are usually run by legal firms, rather than HR departments. By all the means, the OP should fight ot if he believes he has a case but they need to be careful.

 

[DannyBoyD]

These companies are not fools. They have probably already checked the pension issue with their legal team

There I would disagree.

Deny everything until forced to do otherwise is a known strategy; and there are plenty of examples of corporate misbehaviour to choose from.

 

[ClubMan]

These companies are not fools.

In my own experience I certainly wouldn't take that as a given! I've seen small and big companies make egregious mistakes.

 

[Sunny]

In my own experience I certainly wouldn't take that as a given! I've seen small and big companies make egregious mistakes.

Course they make mistakes hence my point the OP should get legal advice. My point stands that this these companies aren't stupid enough to be engaged in a redundancy process with this employee and not seek legal advice of their own around the contractual entitlement issue that the OP raised. Maybe they are legally liable and trying to play a game of bluff but I bet they aren't. I bet they are entirely comfortable from a legal point of view with the stance they have taken. Up to the OP to challenge this if they wish.

The OP is standing to make a six figure or close to six figure sum out of a voluntary redundancy package. (My guess based on 15 years service for US multinational). The key word here is voluntary. As part of this process, an employee is expected to waive all legal claims against the company. Without that waiver, the employee will not get the payment. Its as simple as that. By all means push the company as hard as possible including legally but at the end of the day, what the employee gains through any legal action could be more than offset by losing the voluntary package. The company is more than able to make the employee redundant with nothing more than statutory redundancy. The employee will retain all rights to make legal claims which the company might be more than willing to fight.

This isn't just a contractual dispute. You can't separate with from the voluntary redundancy because it impacts it. That's my only point. Guess we will see what the OPs solicitor says...

 

[ClubMan]

The OP is standing to make a six figure or close to six figure sum out of a voluntary redundancy package (My guess based on 15 years service for US multinational).

There's a lot of guesswork and assumptions going on in this thread. Including by the OP. They could have been the janitor or ordering office supplies for all you know.

 

[bish123]

Sorry to hear that you are loosing job and now also worried about pension. While it's interesting to have this discussion, legal advice is vital in this case. In case of joint responsibility, you could look for a negotiated compensation.

 

[Salvadore]

In case of joint responsibility, you could look for a negotiated compensation.

It may be the best outcome.

The OP can’t be sure that he should have been part of the pension scheme and the company can’t seem to prove that he was fairly excluded.

Against that, the OP will be disclosing that he’s only now noticing that deductions haven’t been made over 15 years.

As @Sunny has said, the enhanced value of the voluntary redundancy package is likely to be conditional on his waiving of any future actions.

So in summary, the OP may have two choices:

1. Take an enhanced redundancy package (assuming it’s otherwise attractive) and forget about future actions. Use the mutual uncertainty regarding the pension as leverage to increase the pot.

2. Take the statutory redundancy and pursue an expensive claim against the company on an issue that’s far from clear and seems open to interpretation. A position based on not noticing the absence of deductions because you forgot your pin doesn’t seem strong.

I’d agree that you should seek legal advice, but be careful of the motivations of anyone who would propose option 2.

 

[NoRegretsCoyote]

They prevent ALL legal claims against the company. The waiver will actually list about 20 pieces of legislation that the employee loses rights to claim under. And even at that, they will make it clear that the list is not exhaustive. The employee loses all legal rights.

Yes but they can’t be used to deprive an employee of all rights. To pick an extreme example, if an employee discovered after redundancy that they’d been underpaid by 50% for 20 years the employer can’t just use the waiver to deny a statutory right to restitution. Likewise if an occupational injury led directly to a serious disability that only emerged after redundancy.

The OP has not left the company.

My apologies. I read the thread title and assumed redundancy was in the past tense. The fact that the settlement isn’t finalised changed the dynamic of course but the OP should seek prompt legal advice.

 

[Sunny]

Yes but they can’t be used to deprive an employee of all rights. To pick an extreme example, if an employee discovered after redundancy that they’d been underpaid by 50% for 20 years the employer can’t just use the waiver to deny a statutory right to restitution. Likewise if an occupational injury led directly to a serious disability that only emerged after redundancy.

Yes they can. The compromise agreement that you sign to get the severance payment will include a waiver that will stop you taking ANY further action against the company. Guys, this is standard when it comes to voluntary redundancy packages. Do a simple Google on it.

Happy to post the wording of the waivers I have signed in the past that makes it pretty clear I am signing away all rights. As I said, that is why most employers will ensure that employees have access to legal advice before signing it by paying for it. So employees can't claim they were duped or pressurised into signing it.

Anyway the OP has already said he is being asked to sign a waiver. He can confirm what he is being asked to sign.

 

[Sunny]

Redundancy: What you need to know about settlement agreements. - Lavelle Partners

On August 5th, Bank of Ireland became the latest organisation to announce redundancies due to the economic impact of Covid-19. The bank posted a €669 million loss for the first...

www.lavellepartners.ie

Why do employers offer settlement agreements?

They are used by employers as a risk management mechanism, as there is a certainty of closure and they facilitate a clean break. Settlement agreements are in full and final settlement of any rights and entitlements the employee has or may have up to and including their termination date against the employer arising out of their employment with the employer or the termination of such employment.

 

[NoRegretsCoyote]

as there is a certainty of closure and they facilitate a clean break.

I don't think we disagree all that much.

I am simply saying that they are not certain. Suppose you worked down a coal mine and got a £10k redundancy settlement in 1998. Today you develop lung cancer that's directly linked to your employment. No judge is going to dismiss a legal claim today simply because you took a settlement a long time ago. For sure the acceptance of a settlement 25 years ago will be a factor, but it cannot absolve an employer of all responsibilities nor remove all of an employee's rights.