The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Furniture Plus vice-president’s claim that she was coerced into signing a $101,250 termination settlement under “duress” has been rejected by the Industrial Tribunal.

Rionda Godet, the Tribunal’s vice-president, in a September 18, 2024, verdict ruled that the claim by Dawn Forbes, who held a senior management post with the furniture retailer and its Plus Group of Companies for 15 years, represented “buyer’s remorse” because the firm had refused to pay the agreed sum until she either returned or deleted material deemed proprietary to the business.

Detailing the background to the dispute, the Tribunal’s verdict noted that Ms Forbes was claiming both wrongful and unfair dismissal over her termination. However, Furniture Plus and its wider corporate group argued that the claim should be dismissed and moved to have it struck out on the basis that both parties had previously signed an agreement known as a “Deed of Compromise and Release” over her departure.

The March 25, 2023, agreement stipulated that, in return for a $98,351 payout to be paid over a 12-month period, Ms Forbes would not bring any legal actions or employment-related claims against her former employer. And, in return, she agreed to return “any and all documents, materials, papers, information and/or data” in her possession, in either paper or electronic form, that belonged to Furniture Plus.

The payout sum was increased to $101,250 on April 4, 2013, via a written agreement by both parties after the amount of vacation pay owing to the ex-vice president and general manager was incorrectly calculated initially. The monthly installments were to be $8,438.

However, Ms Forbes “asserts that notwithstanding her having signed a release, albeit under duress, the same has actually not been paid out in any event as anticipated”. She alleged that Furniture Plus had “refused to pay her out upon the terms agreed” because she had refused to sign “some ‘after the fact’ document” relating to the return of company materials that the firm had failed to list.

Acknowledging that the Deed of Release would be “null and void, and of no effect” if it was coerced, the Industrial Tribunal said Ms Forbes’ own pleadings suggested she “accepted the viability of the Release” but only objected after Furniture Plus asked her to sign an affidavit confirming she had returned all company property.

Ms Forbes, in an affidavit, said she was summoned to a Mach 20, 2023, meeting with Krystynia Lee d’Arville, a director of Furniture Plus and the Plus Group of Companies, in the staff kitchen at the former company’s warehouse. When she arrived, she found that Romel Hepburn, vice-president of In-House Investments, one of the group’s affiliates, was also present;

“Krystynia started the meeting by saying that she and I have had a 15-year history, and that breach of trust and confidentiality is a serious thing and out of all the people she didn’t think I would be the one that would do ‘that’,” Ms Forbes alleged. “She said that I had taken information out of the company without permission. 

“I said I have not, but she never told me what information, when or how it was taken out. She then immediately carried on saying that I was also defiant and insubordinate because I refused to accept that she was now leading the company. I managed to say I didn’t agree with that, but she did not allow me any time to speak.”

Ms Forbes, in her pleadings, alleged that Ms d’Arville did not provide any specific details on her purported misconduct but instead said she was not terminating her with “just cause” - as Furniture Plus’ attorneys had advised - because of her 15-year history with the company.

“She said she would terminate me without cause, even against counsel’s advice, because ‘it’s the right thing to do’ and that this is a small community,” Ms Forbes alleged. “I took this to mean I would not be able to get another job very easily if people knew I was fired for a breach of confidentiality.” 

The former Furniture Plus vice-president, in her pleadings, described the Deed of Release as “confusing” over the date when she was to receive her payout. She added that she pointed out “discrepancies in the amount calculated for vacation and the omission of salary for work-to-date and the February sales commission”, but her requests to make a phone call and consult an attorney were rejected.

After she voiced concern about signing a document with inaccurate payment figures, Mr Hepburn “insisted” that changes be made in writing on the Deed and initialled, and that he would be a “neutral party”. 

However, Ms Forbes asserted that she “executed the deed under duress and undue influence by Romel Hepburn and Krystynia Lee d’Arville and without being afforded an opportunity to seek independent legal advice contrary to the express terms of the deed”.

This, though, was rejected by Mr Hepburn in two affidavits filed on March 27, 2024, and June 21, 2024. He asserted that “at no time” did Ms Forbes “appear nervous, uneasy or fearful”, and said she was the one who pointed out the inaccuracies. And he confirmed that he was acting as “a witness for both sides”.

“It is important to understand that the atmosphere during the meeting was very relaxed, there was no tension and the parties were amiable despite the fact that there was going to be a parting of the ways,” Mr Hepburn alleged. 

“Krystynia was not aggressive and Dawn did not show any signs of concern or distress. It was almost as if Dawn was ready to leave, especially knowing that she was being paid out. The only concerns Dawn expressed was she wanted to ensure she was properly compensated and that the Release was binding on the parties.”

Furniture Plus and the Plus Group of Companies reiterated that they had always been willing to pay the agreed sum, but had not done so because Ms Forbes had failed to give the “assurance” that she had either returned, deleted or disposed of all company property that she possessed.

Ultimately, the Tribunal found for the company, noting that Ms Forbes never challenged the Deed’s validity until she launched her claim on May 19, 2023. “This also leads me to believe that the applicant’s action ultimately arises by way of buyer’s ‘remorse’ brought on by Furniture Plus’ refusal to pay out the agreed sum based on what it considered her refusal to comply with its requirement concerning assurance of the deletion of its ‘material’ property,” Ms Godet ruled.

Determining that, based on the evidence, Ms Forbes had “the wherewithal to make her demands in effective negotiation” and could have walked out the room at any time if she so chose, she added: “I find that there was no duress arising from the execution of the Release herein.”