CORRECTION ORDER
ISSUED PURSUANT
This Order corrects the original Decision ADJ-00025474 issued on 18/07/2022and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025474
Parties:
| Complainant | Respondent |
Parties | Louis McCabe | McHugh Express Ltd Dpd Sligo |
Representatives | Michael Monahan | Ann Hickey Hickey Coghill Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00032324-001 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033175-001 | 06/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033175-002 | 06/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033175-003 | 06/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032324-002 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032324-003 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032324-004 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-005 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-006 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-007 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-008 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-009 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-010 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-011 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-012 | 19/11/2019 |
Date of Adjudication Hearing: 29/04/2022
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant originally worked with Gerard Doherty Transport who had a franchise with DPD. This franchise was taken over by the respondent, McHugh Express Ltd in April 2019. The complainant believed that his hours of work and breaks should remain the same whereas the respondent believed this was a new employment relationship with different hours of work. This difference of opinion culminated in the complainant coming in later than the respondent expected and, in one instance, in the respondent’s view, leaving the depot without proper cover. The respondent instigated disciplinary procedures and the complainant was subsequently dismissed. |
Summary of Complainant’s Case:
The Complainant was a valuable employee with Gerard Doherty Transport Limited and was a Manager of depots from the mid-1980s to 2019 under various companies all of which provided references as to his management abilities. His employment with Gerard Doherty Transport ended on the 27th of April 2019 when the owner of the DPD franchise transferred over to McHugh Express Limited. This transfer was covered by the TUPE regulations where the existing Terms and Conditions of Employment would continue under the new owner of the franchise. The letter from the previous employer confirmed this. The complainant relocated to a new address for commencement of work on Monday the 29th of April with a demand that he commences work at 6.00am. Immediately there was a breach of the TUPE regulations as he had been working on a 9.00am to 6.00pm rota with lunch from 1.00pm to 2.00pm (an 8 hour day on a 3 day week, working Monday, Tuesday and Wednesday). The new Employer- the Respondent, Mr McHugh - insisted on longer hours and during the first week the complainant worked 46.5 hours over 3.5 days with one break of thirty minutes. The complainant, as a loyal employee carried out extra hours as the start-up period and was assured that his normal hours worked for the previous employer would resume after the first week. The following week longer hours were then demanded by Mr McHugh. When the complainant commenced work at 9.00am Mr McHugh questioned why he was late. The complainant replied that that was his usual time. Mr McHugh demanded he start at 7.30am in the morning until close of business without a definition of what that was. On questioning this, and that any payments over 8 hours would require overtime, the complainant was advised that no overtime would be paid. The complainant responded that he could not work 12-hour days without breaks or payment. The complainant has listed the absence of breaks and the failure to pay minimum wage. The complainant was asked to work excessive hours and when this was raised with the respondent he was met with no response or effort to discuss his concerns. On Thursday the 20th of June 2019 an e-mail was sent to the respondent outlining the complainant’s concerns. This was met with a reply in an undated letter of June 2019 and the complainant does not accept the "understandings" which the respondent maintains were the basis of a relationship. By this stage the respondent was already in breach of failing to produce Terms and Conditions of Employment. No Contract of Employment was produced or even discussed. The complainant did not have one with the previous Employer and so had no Grievance Procedure to follow in relation to his concerns about the increased hours and the lack of breaks which he was now subject to. After 5 weeks of working lengthy days, seldom getting lunchbreaks, and not being "looked after" by the respondent as promised, the complainant sent an email on 20/6/19 pointing out the hours he had been working, lack of lunchbreaks and no additional payments or acknowledgment, and reminded him of their agreement The complainant also stated that if he was not going to be paid overtime, he would revert to his original hours from Monday 1st July - giving the respondent a week’s notice. The respondent replied informing the complainant that he was not in a position to pay overtime or offer time off in lieu, and it was not a "9-6-hour position". he made no reference to the earlier verbal agreement. The complainant emailed the respondent, reminding him of their agreement, stating where and when they had had the conversations and pointed out to him again that he would be reverting to his original hours from 1st July. On 1st July the respondent came to the complainant around 9.20, asked why he was late for his shift, to which the complainant replied that he was in at 9.00 and therefore on time. The respondent stood over the desk repeating "STARTING TIME IS 8AM"...over and over again. The complainant felt very threatened and told him so, asked him to move away from the desk. The complainant told the respondent that he would be taking a lunchbreak from 1 to 2 to which the respondent replied that he was not to leave the depot. At 1.30 the complainant closed up and went for a coffee returning at 1.45. On his return the DPD Area Executive, Mr Cahill, was parked at depot. The complainant decided to take his second break as the Area executive was there and familiar with the workings of the office. When the complainant arrived at work the following day at 9.00 the respondent informed him that he was suspended without pay pending an investigation into the alleged infringements. He said the complainant had left the depot unattended and also forwarded an email to another member of staff. There were regular walk-in customers at the premises and it was very humiliating and embarrassing for the complainant. He asked the respondent to give him an email by lunchtime giving reason for his actions. The complainant received an email from him around 12.30pm stating he was suspended with full pay. On 10th July by email the complainant was asked to attend a disciplinary hearing in a hotel. On arrival the respondent and his witness were sitting in the Foyer. The respondent began the meeting and asked the complainant if he was prepared to answer to the infractions to assist his investigation. The complainant said he would but that he should have been given details of the alleged infractions in advance in order to prepare his response. The respondent closed the meeting then. When the complainant got home, he emailed the respondent outlining his request for details of allegations. He told the respondent that that the two incidents that he was aware of, could have been sorted in 5 minutes, at the DPD Depot on the morning of Tuesday July 2nd. On 11th July the complainant received an email from the respondent in which he now listed a total of 10 infractions that the complainant was to answer and inviting the complainant to attend a disciplinary meeting in the same venue, the following day, at 16.00hrs. The complainant replied the same night stating that he was bewildered at the additional accusations, and that it was unfair and unreasonable to answer to the allegations some 17hrs later, and that he would be in contact with the respondent the following Monday. The complainant’s solicitor advised him that he did not need to answer the additional allegations. On 19th July the disciplinary hearing took place in private room at in a Hotel. The respondent put the additional allegations to the complainant and the complainant said he would not answer them. On 5th August the complainant received his letter of dismissal. The reasons given were bringing the company into disrepute and wilful neglect of duty. The dismissal of the complainant was procedurally flawed in that he attended without any representation nor was he advised to have anybody there to protect his interests. The complaints clearly outlined in the earlier letter of the 20th of June were dismissed by the respondent. The letter of dismissal itself was defective in that it did not provide an appeal procedure against the decision made. Given the long history and expertise of the complainant in the logistics business the penalty imposed was excessive in relation to the issues by which the respondent maintained he was entitled to dismiss the complainant. In the absence of a Disciplinary Procedure and a graduated scale of penalties/warnings which can be imposed on employees the respondent’s action to dismiss the complainant in this case was clearly unfair and the complainant is entitled to compensation for his loss given his age and his inability to obtain any work since he was dismissed. The respondent is in breach of regulations in the failure to produce Terms and Conditions and also in relation to failure to give proper breaks in relation to the provisions of the Organisation of Working Time Act. The National Minimum Wage Act 2000 regulations are also breached as is outlined in detail on the application showing that the payments for the time period worked and the hours worked were below the minimum wage relating to the employment period. The complainant has failed to find work since the date of the dismissal. It is submitted that the actions of the respondent breached a large number of regulations and legislation both in dismissing the complainant without due reason, failing to abide by the provisions of the Organisation of Working Time Act, and, most importantly, failure to pay the minimum wage rates required by the legislation of the National Minimum Wage Act 2000. |
Summary of Respondent’s Case:
Brendan McHugh entered into an Agency Agreement with Interlink Ireland Limited dated the 11th of April 2019. At that stage, Mr. McHugh sought new employees for the new venture and met with a number of persons including the complainant. The complainant was employed to work three days per week in a clerical/office role from 9.00am to 6.00pm each day with the statutory breaks in line with the hours of work. In April 2019 Mr. McHugh instructed his solicitors in relation to drafting Contracts of Employment for the new employees. It had been made very clear to the complainant that his hours of work were from 8.00am to 6.00pm each day in line with the needs of the business and indeed the complainant worked those hours initially without complaint. On the 20th of June 2019 Mr. McHugh received an email from the complainant stating that he was unhappy and unsettled with his hours of work. Mr. McHugh responded to this in a timely manner, by letter, detailing the hours of work and the statutory breaks that the complainant was entitled to and confirming that he was in the process of drafting the Contract of Employment/Terms and Conditions of Employment and that he would liaise with the complainant in relation to his terms and conditions taking into account the needs of the business. Mr. McHugh further confirmed to the complainant that he had not been asked and was not expected to attend at the workplace on Sundays. Furthermore, Mr. McHugh confirmed that we would not be in a position to pay any additional monies for additional hours worked and that the hours of work expected of the complainant were from 8.00am to 6.00pm, 3 days per week and he would have fulfilled his contract in full by working these hours. The letter went on to deal with other matters such as the employee’s employment rights and seeking a medical certificate that the complainant was medically fit for work as the complainant had mentioned some health difficulties. On the 26th of June 2019 Mr. McHugh had a meeting with the complainant and confirmed the requirement that the complainant would be required to be in work from Monday the 1st of July 2019 at 8.00am and further informing him of his statutory entitlements in relation to breaks. Despite the discussions, on Monday the 1st of July 2019 the complainant did not arrive at work until 9.00am. Mr. McHugh approached the complainant asking him about being late for work. The complainant dismissed what Mr. McHugh had to say. On the same date a member from Head Office staff, Mr Niall Cahill, attended the depot to carry out some work relevant to his role and was working in the office where the complainant works. In the presence of customers of the business the complainant left the premises. On his way out, the complainant informed the customers that Mr Cahill would deal with them, and the complainant then left the building. This was unacceptable as Mr Cahill’s role was not to assist with customers at the Depot and effectively the employee left the Depot unattended, unlocked and in the control of a non-staff member. The complainant ignored the customers. Even though Mr. McHugh was in the vicinity, the complainant did not inform Mr. McHugh that he had left the office and the customers or that there was a delivery job pending. There was no explanation as to the status of that delivery or the whereabouts of the parcel. A further un-manifested consignment of notes was left on the desk in the open unlocked office which was unmanned, and which is a serious breach of Data Protection. The security and protection of the respondent’s customer’s data and goods were put at serious risk. The complainant was fully GDPR trained and was aware of the serious consequences of same. Part of the complainants’ role was to use the correct scanner, manifest all dockets and put out the red bag and none of these matters were attended to on Monday the 1st of July 2019. The complainant did not inform Mr. McHugh that he was leaving the premises or that he had not completed the tasks. Furthermore, the complainant made a complaint to Mr. McHugh by way of email which Mr. McHugh considered private and confidential, but it is clear from the email that another employee was copied in that email. This was considered to be a serious breach of trust in the employer employee relationship. It was Mr. McHugh’s response to the complainant’s initial email that was copied to another employee. When the complainant attended at work on Tuesday the 2nd of July 2019 Mr. McHugh met with the complainant and asked him to step outside the office as there were people coming and going from the office which would not have been private. Mr. McHugh immediately informed the complainant that, given what had taken place the day before, Mr. McHugh had no option but to suspend him with full pay until a full investigation was carried out in relation to what had occurred the previous day. The complainant then proceeded to send a wholly abusive and unacceptable text message to abovementioned Mr Niall Cahill who works at Head Office. The text of which is quoted: “good man Niall…whatever you said to Brendan helped get me suspended…hope you’re proud of yourself…Travers would approve…nice one” At all times Mr. McHugh attempted to liaise with the complainant in person to discuss all contractual issues but unfortunately received no response verbally when Mr. McHugh attempted same. At all times Mr. McHugh’s email correspondence was respectful, professional and clear. The complainant’s emails, however, were accusatory and at times abusive. In relation to the investigation that Mr. McHugh sought to carry out, the complainant was not cooperative. Mr. McHugh attempted to commence the investigation immediately and on the 3rd of July 2019 tried to telephone the complainant to organise a meeting but, as there was no answer, Mr. McHugh then sent an email to the complainant asking if they could meet the following week. The complainant stated that he was wasn’t in a position to answer and that he would have to speak with his witness. There were emails back and forth and then Wednesday the 10th of July, Mr. McHugh sent an email to the complainant seeking to meet Thursday the 11th of July at 4.00pm at a Sligo Hotel. Mr. McHugh received an email from the complainant agreeing to meet on Thursday the 11th of July. The meeting was arranged for 4.00pm but the complainant did not co-operate with same. Mr. McHugh then sent an email seeking to meet on Friday the 12th of July at 4.30pm at a Sligo Hotel and received a reply from the complainant declining to meet. On Friday the 12th of July Mr. McHugh sent a further email seeking to meet on Tuesday the 16th of July at 4.30pm at a Sligo Hotel. Mr. McHugh received a reply by email from the complainant on Saturday the 13th of July stating that he did not know if he could meet as he hoped to bring a witness to the meeting. Mr. McHugh received a further email on Monday the 15th of July wherein the complainant declined to meet. On Tuesday the 16th of July Mr. McHugh sent a further email offering to meet the complainant on Friday the 19th of July and he explained that this will be the last opportunity given in relation to a meeting. Mr. McHugh received a reply on the 16th of July agreeing to meet but only if the meeting could be rescheduled for one hour later at 5.30pm. On Wednesday the 17th of July Mr. McHugh sent an email agreeing to meet at the complainants preferred time of 5.30pm. The meeting took place on the 19th of July. The matters under investigation were as per the document headed “Matters for Investigation” which had already been communicated to the complainant. It is clear that the complainant did not fully co-operate with the investigation and that he did not confirm, at any time, that he wished to keep his position within the business or that he was prepared to work the hours of work 8am to 6pm. After considering, Mr. McHugh felt he had no option but to dismiss the complainant as it was a complete and utter breakdown of trust. A letter was sent on the 5th of August 2019 to the complainant giving the reasons for the dismissal as follows: 1. Conduct tending to bring the employer into disrepute and affecting the business of the employer. 2. Gross default and wilful neglect in the discharge of his duties.
Mr. McHugh did not receive any letter or contact from the complainant nor any representative on his behalf in relation to an appeal of this decision.
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Findings and Conclusions:
Preliminary issue Mr McCabe submitted a previous claim to the WRC on 3rd July 2019 which was the subject of an adjudication hearing on 17th September 2019. The decision from this hearing referenced the non-appearance of the complainant – Mr McCabe- and the Adjudication Officer decided as follows; ‘I am satisfied that the claimant was duly notified of the date time and place at which the hearing to investigate the complaint would be held. The claimant did not attend and no application for a postponement was submitted in the weeks preceding the hearing. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the within complaint is not well founded and I decide accordingly.’ In line with Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 I am precluded from considering the issues that were the subject of that previous case. The complaint form submitted by the complainant in the previous case stated. I have not received, terms & conditions / contract of employment / have been paid less than minimum hourly rate / have not been paid for additional hours worked and no arrangements made for my statutory breaks. I therefore cannot consider any of the complaints raised in this instance under, The Organisation of Working Time Act, the Terms of Employment (Information) Act, 1994 and the National Minimum Wage Act, 2000 as the complainant had the opportunity to have these complaints heard previously.
CA-00032324-001 Unfair Dismissal Dismissal as a fact is not in dispute in this case and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair and whether dismissal was a proportionate response to the allegation of misconduct. The complainant alleges that the investigation and disciplinary processes were unfair insofar as he was not given advance notice in writing of the issues, he was not afforded the right of representation and he was not offered the right of appeal. In Banasov -V- Pottle Pig Farm (UDDI 735) the Labour Court concluded that failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision outside the range of reasonable responses thus rendering the dismissal unfair. The question of the ‘reasonableness’ of the decision of an employer to dismiss was considered in Bank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned” The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows: 1) Did the company believe that the employee misconducted himself as alleged? 2) if so, did the company have reasonable grounds to sustain that belief? 3) if so, was the penalty of dismissal proportionate to the alleged misconduct? The respondent claims that this was not a transfer of undertakings and that therefore the previous conditions of employment enjoyed by the complainant did not necessarily continue. While there is no claim under TUPE in this instance, I note the case of 171/94 Merckx v Ford Motor Company Belgium SA is the relevant authority and established that where a franchise is terminated and awarded to a new undertaking pursuing the same activity there is a transfer of undertaking for the purpose of the TUPE regulations. I note also the evidence given by the complainant that he had been assured by his previous employer that this was covered by TUPE and therefore he had a legitimate expectation that his previous conditions of employment would continue. When he repeatedly raised this issue with his new employer it fell on deaf ears. The respondent could not but have been aware that it was this belief i.e. that the complainant should continue with his pre-existing terms and conditions including hours of work, that was at the root of the disagreement between them. The onus was on the respondent to clarify this issue before taking the decision to terminate the employment of the complainant. I find that the procedures used by the respondent were fatally deficient as they did not comply with the requirements of natural justice. An employee has the right to be informed in advance of the allegations and this did not happen in a satisfactory manner. An employee has the right to be represented and the complainant was never informed of this right. An employee also has a right of appeal, and no such appeal was offered. In addition to these deficiencies, I find that the decision to dismiss fell outside of the range of reasonable responses of a reasonable employer to the conduct concerned. When the complainant made it clear that he believed he was entitled to maintain his terms and conditions from his previous employer, the respondent should have investigated this assertion. If necessary, he should have sought advice relating to his obligation to maintain the complainant’s terms and conditions of employment, including hours of work which was at the centre of the dispute. Accordingly, I find that the complainant was unfairly dismissed. In determining the appropriate compensation, I note that the complainant in evidence said that he retired in March 2020 and therefore was not available for work from that date. The quantum of compensation therefore is limited to his loss from the date of his dismissal, 1st August 2019 until 6th March 2020 which I estimate to be €9,984. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the
CA-00032324-001. The complainant was unfairly dismissed, and I order the respondent to pay him the sum of €9,984 in compensation. CA-00033175-001, CA-00033175-002, CA-00033175-003, CA-00032324-002 to CA-00032324-0012 inclusive. I am precluded from hearing these complaints and therefore they are not upheld.
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Dated: 18-07-2022
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Unfair dismissal. Inadequate procedures. |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025474
Parties:
| Complainant | Respondent |
Parties | Louis McCabe | McHugh Express Ltd Dpd Sligo |
Representatives | Michael Monahan | Ann Hickey Hickey Coghill Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00032324-001 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033175-001 | 06/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033175-002 | 06/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00033175-003 | 06/12/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032324-002 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032324-003 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032324-004 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-005 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-006 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-007 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-008 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-009 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-010 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-011 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00032324-012 | 19/11/2019 |
Date of Adjudication Hearing: 29/04/2022
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant originally worked with Gerard Doherty Transport who had a franchise with DPD. This franchise was taken over by the respondent, McHugh Express Ltd in April 2019. The complainant believed that his hours of work and breaks should remain the same whereas the respondent believed this was a new employment relationship with different hours of work. This difference of opinion culminated in the complainant coming in later than the respondent expected and, in one instance, in the respondent’s view, leaving the depot without proper cover. The respondent instigated disciplinary procedures and the complainant was subsequently dismissed. |
Summary of Complainant’s Case:
The Complainant was a valuable employee with Gerard Doherty Transport Limited and was a Manager of depots from the mid-1980s to 2019 under various companies all of which provided references as to his management abilities. His employment with Gerard Doherty Transport ended on the 27th of April 2019 when the owner of the DPD franchise transferred over to McHugh Express Limited. This transfer was covered by the TUPE regulations where the existing Terms and Conditions of Employment would continue under the new owner of the franchise. The letter from the previous employer confirmed this. The complainant relocated to a new address for commencement of work on Monday the 29th of April with a demand that he commences work at 6.00am. Immediately there was a breach of the TUPE regulations as he had been working on a 9.00am to 6.00pm rota with lunch from 1.00pm to 2.00pm (an 8 hour day on a 3 day week, working Monday, Tuesday and Wednesday). The new Employer- the Respondent, Mr McHugh - insisted on longer hours and during the first week the complainant worked 46.5 hours over 3.5 days with one break of thirty minutes. The complainant, as a loyal employee carried out extra hours as the start-up period and was assured that his normal hours worked for the previous employer would resume after the first week. The following week longer hours were then demanded by Mr McHugh. When the complainant commenced work at 9.00am Mr McHugh questioned why he was late. The complainant replied that that was his usual time. Mr McHugh demanded he start at 7.30am in the morning until close of business without a definition of what that was. On questioning this, and that any payments over 8 hours would require overtime, the complainant was advised that no overtime would be paid. The complainant responded that he could not work 12-hour days without breaks or payment. The complainant has listed the absence of breaks and the failure to pay minimum wage. The complainant was asked to work excessive hours and when this was raised with the respondent he was met with no response or effort to discuss his concerns. On Thursday the 20th of June 2019 an e-mail was sent to the respondent outlining the complainant’s concerns. This was met with a reply in an undated letter of June 2019 and the complainant does not accept the "understandings" which the respondent maintains were the basis of a relationship. By this stage the respondent was already in breach of failing to produce Terms and Conditions of Employment. No Contract of Employment was produced or even discussed. The complainant did not have one with the previous Employer and so had no Grievance Procedure to follow in relation to his concerns about the increased hours and the lack of breaks which he was now subject to. After 5 weeks of working lengthy days, seldom getting lunchbreaks, and not being "looked after" by the respondent as promised, the complainant sent an email on 20/6/19 pointing out the hours he had been working, lack of lunchbreaks and no additional payments or acknowledgment, and reminded him of their agreement The complainant also stated that if he was not going to be paid overtime, he would revert to his original hours from Monday 1st July - giving the respondent a week’s notice. The respondent replied informing the complainant that he was not in a position to pay overtime or offer time off in lieu, and it was not a "9-6-hour position". he made no reference to the earlier verbal agreement. The complainant emailed the respondent, reminding him of their agreement, stating where and when they had had the conversations and pointed out to him again that he would be reverting to his original hours from 1st July. On 1st July the respondent came to the complainant around 9.20, asked why he was late for his shift, to which the complainant replied that he was in at 9.00 and therefore on time. The respondent stood over the desk repeating "STARTING TIME IS 8AM"...over and over again. The complainant felt very threatened and told him so, asked him to move away from the desk. The complainant told the respondent that he would be taking a lunchbreak from 1 to 2 to which the respondent replied that he was not to leave the depot. At 1.30 the complainant closed up and went for a coffee returning at 1.45. On his return the DPD Area Executive, Mr Cahill, was parked at depot. The complainant decided to take his second break as the Area executive was there and familiar with the workings of the office. When the complainant arrived at work the following day at 9.00 the respondent informed him that he was suspended without pay pending an investigation into the alleged infringements. He said the complainant had left the depot unattended and also forwarded an email to another member of staff. There were regular walk-in customers at the premises and it was very humiliating and embarrassing for the complainant. He asked the respondent to give him an email by lunchtime giving reason for his actions. The complainant received an email from him around 12.30pm stating he was suspended with full pay. On 10th July by email the complainant was asked to attend a disciplinary hearing in a hotel. On arrival the respondent and his witness were sitting in the Foyer. The respondent began the meeting and asked the complainant if he was prepared to answer to the infractions to assist his investigation. The complainant said he would but that he should have been given details of the alleged infractions in advance in order to prepare his response. The respondent closed the meeting then. When the complainant got home, he emailed the respondent outlining his request for details of allegations. He told the respondent that that the two incidents that he was aware of, could have been sorted in 5 minutes, at the DPD Depot on the morning of Tuesday July 2nd. On 11th July the complainant received an email from the respondent in which he now listed a total of 10 infractions that the complainant was to answer and inviting the complainant to attend a disciplinary meeting in the same venue, the following day, at 16.00hrs. The complainant replied the same night stating that he was bewildered at the additional accusations, and that it was unfair and unreasonable to answer to the allegations some 17hrs later, and that he would be in contact with the respondent the following Monday. The complainant’s solicitor advised him that he did not need to answer the additional allegations. On 19th July the disciplinary hearing took place in private room at in a Hotel. The respondent put the additional allegations to the complainant and the complainant said he would not answer them. On 5th August the complainant received his letter of dismissal. The reasons given were bringing the company into disrepute and wilful neglect of duty. The dismissal of the complainant was procedurally flawed in that he attended without any representation nor was he advised to have anybody there to protect his interests. The complaints clearly outlined in the earlier letter of the 20th of June were dismissed by the respondent. The letter of dismissal itself was defective in that it did not provide an appeal procedure against the decision made. Given the long history and expertise of the complainant in the logistics business the penalty imposed was excessive in relation to the issues by which the respondent maintained he was entitled to dismiss the complainant. In the absence of a Disciplinary Procedure and a graduated scale of penalties/warnings which can be imposed on employees the respondent’s action to dismiss the complainant in this case was clearly unfair and the complainant is entitled to compensation for his loss given his age and his inability to obtain any work since he was dismissed. The respondent is in breach of regulations in the failure to produce Terms and Conditions and also in relation to failure to give proper breaks in relation to the provisions of the Organisation of Working Time Act. The National Minimum Wage Act 2000 regulations are also breached as is outlined in detail on the application showing that the payments for the time period worked and the hours worked were below the minimum wage relating to the employment period. The complainant has failed to find work since the date of the dismissal. It is submitted that the actions of the respondent breached a large number of regulations and legislation both in dismissing the complainant without due reason, failing to abide by the provisions of the Organisation of Working Time Act, and, most importantly, failure to pay the minimum wage rates required by the legislation of the National Minimum Wage Act 2000. |
Summary of Respondent’s Case:
Brendan McHugh entered into an Agency Agreement with Interlink Ireland Limited dated the 11th of April 2019. At that stage, Mr. McHugh sought new employees for the new venture and met with a number of persons including the complainant. The complainant was employed to work three days per week in a clerical/office role from 9.00am to 6.00pm each day with the statutory breaks in line with the hours of work. In April 2019 Mr. McHugh instructed his solicitors in relation to drafting Contracts of Employment for the new employees. It had been made very clear to the complainant that his hours of work were from 8.00am to 6.00pm each day in line with the needs of the business and indeed the complainant worked those hours initially without complaint. On the 20th of June 2019 Mr. McHugh received an email from the complainant stating that he was unhappy and unsettled with his hours of work. Mr. McHugh responded to this in a timely manner, by letter, detailing the hours of work and the statutory breaks that the complainant was entitled to and confirming that he was in the process of drafting the Contract of Employment/Terms and Conditions of Employment and that he would liaise with the complainant in relation to his terms and conditions taking into account the needs of the business. Mr. McHugh further confirmed to the complainant that he had not been asked and was not expected to attend at the workplace on Sundays. Furthermore, Mr. McHugh confirmed that we would not be in a position to pay any additional monies for additional hours worked and that the hours of work expected of the complainant were from 8.00am to 6.00pm, 3 days per week and he would have fulfilled his contract in full by working these hours. The letter went on to deal with other matters such as the employee’s employment rights and seeking a medical certificate that the complainant was medically fit for work as the complainant had mentioned some health difficulties. On the 26th of June 2019 Mr. McHugh had a meeting with the complainant and confirmed the requirement that the complainant would be required to be in work from Monday the 1st of July 2019 at 8.00am and further informing him of his statutory entitlements in relation to breaks. Despite the discussions, on Monday the 1st of July 2019 the complainant did not arrive at work until 9.00am. Mr. McHugh approached the complainant asking him about being late for work. The complainant dismissed what Mr. McHugh had to say. On the same date a member from Head Office staff, Mr Niall Cahill, attended the depot to carry out some work relevant to his role and was working in the office where the complainant works. In the presence of customers of the business the complainant left the premises. On his way out, the complainant informed the customers that Mr Cahill would deal with them, and the complainant then left the building. This was unacceptable as Mr Cahill’s role was not to assist with customers at the Depot and effectively the employee left the Depot unattended, unlocked and in the control of a non-staff member. The complainant ignored the customers. Even though Mr. McHugh was in the vicinity, the complainant did not inform Mr. McHugh that he had left the office and the customers or that there was a delivery job pending. There was no explanation as to the status of that delivery or the whereabouts of the parcel. A further un-manifested consignment of notes was left on the desk in the open unlocked office which was unmanned, and which is a serious breach of Data Protection. The security and protection of the respondent’s customer’s data and goods were put at serious risk. The complainant was fully GDPR trained and was aware of the serious consequences of same. Part of the complainants’ role was to use the correct scanner, manifest all dockets and put out the red bag and none of these matters were attended to on Monday the 1st of July 2019. The complainant did not inform Mr. McHugh that he was leaving the premises or that he had not completed the tasks. Furthermore, the complainant made a complaint to Mr. McHugh by way of email which Mr. McHugh considered private and confidential, but it is clear from the email that another employee was copied in that email. This was considered to be a serious breach of trust in the employer employee relationship. It was Mr. McHugh’s response to the complainant’s initial email that was copied to another employee. When the complainant attended at work on Tuesday the 2nd of July 2019 Mr. McHugh met with the complainant and asked him to step outside the office as there were people coming and going from the office which would not have been private. Mr. McHugh immediately informed the complainant that, given what had taken place the day before, Mr. McHugh had no option but to suspend him with full pay until a full investigation was carried out in relation to what had occurred the previous day. The complainant then proceeded to send a wholly abusive and unacceptable text message to abovementioned Mr Niall Cahill who works at Head Office. The text of which is quoted: “good man Niall…whatever you said to Brendan helped get me suspended…hope you’re proud of yourself…Travers would approve…nice one” At all times Mr. McHugh attempted to liaise with the complainant in person to discuss all contractual issues but unfortunately received no response verbally when Mr. McHugh attempted same. At all times Mr. McHugh’s email correspondence was respectful, professional and clear. The complainant’s emails, however, were accusatory and at times abusive. In relation to the investigation that Mr. McHugh sought to carry out, the complainant was not cooperative. Mr. McHugh attempted to commence the investigation immediately and on the 3rd of July 2019 tried to telephone the complainant to organise a meeting but, as there was no answer, Mr. McHugh then sent an email to the complainant asking if they could meet the following week. The complainant stated that he was wasn’t in a position to answer and that he would have to speak with his witness. There were emails back and forth and then Wednesday the 10th of July, Mr. McHugh sent an email to the complainant seeking to meet Thursday the 11th of July at 4.00pm at a Sligo Hotel. Mr. McHugh received an email from the complainant agreeing to meet on Thursday the 11th of July. The meeting was arranged for 4.00pm but the complainant did not co-operate with same. Mr. McHugh then sent an email seeking to meet on Friday the 12th of July at 4.30pm at a Sligo Hotel and received a reply from the complainant declining to meet. On Friday the 12th of July Mr. McHugh sent a further email seeking to meet on Tuesday the 16th of July at 4.30pm at a Sligo Hotel. Mr. McHugh received a reply by email from the complainant on Saturday the 13th of July stating that he did not know if he could meet as he hoped to bring a witness to the meeting. Mr. McHugh received a further email on Monday the 15th of July wherein the complainant declined to meet. On Tuesday the 16th of July Mr. McHugh sent a further email offering to meet the complainant on Friday the 19th of July and he explained that this will be the last opportunity given in relation to a meeting. Mr. McHugh received a reply on the 16th of July agreeing to meet but only if the meeting could be rescheduled for one hour later at 5.30pm. On Wednesday the 17th of July Mr. McHugh sent an email agreeing to meet at the complainants preferred time of 5.30pm. The meeting took place on the 19th of July. The matters under investigation were as per the document headed “Matters for Investigation” which had already been communicated to the complainant. It is clear that the complainant did not fully co-operate with the investigation and that he did not confirm, at any time, that he wished to keep his position within the business or that he was prepared to work the hours of work 8am to 6pm. After considering, Mr. McHugh felt he had no option but to dismiss the complainant as it was a complete and utter breakdown of trust. A letter was sent on the 5th of August 2019 to the complainant giving the reasons for the dismissal as follows: 1. Conduct tending to bring the employer into disrepute and affecting the business of the employer. 2. Gross default and wilful neglect in the discharge of his duties.
Mr. McHugh did not receive any letter or contact from the complainant nor any representative on his behalf in relation to an appeal of this decision.
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Findings and Conclusions:
Preliminary issue Mr McCabe submitted a previous claim to the WRC on 3rd July 2019 which was the subject of an adjudication hearing on 17th September 2019. The decision from this hearing referenced the non-appearance of the complainant – Mr McCabe- and the Adjudication Officer decided as follows; ‘I am satisfied that the claimant was duly notified of the date time and place at which the hearing to investigate the complaint would be held. The claimant did not attend and no application for a postponement was submitted in the weeks preceding the hearing. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the within complaint is not well founded and I decide accordingly.’ In line with Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 I am precluded from considering the issues that were the subject of that previous case. The complaint form submitted by the complainant in the previous case stated. I have not received, terms & conditions / contract of employment / have been paid less than minimum hourly rate / have not been paid for additional hours worked and no arrangements made for my statutory breaks. I therefore cannot consider any of the complaints raised in this instance under, The Organisation of Working Time Act, the Terms of Employment (Information) Act, 1994 and the National Minimum Wage Act, 2000 as the complainant had the opportunity to have these complaints heard previously.
CA-00032324-001 Unfair Dismissal Dismissal as a fact is not in dispute in this case and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair and whether dismissal was a proportionate response to the allegation of misconduct. The complainant alleges that the investigation and disciplinary processes were unfair insofar as he was not given advance notice in writing of the issues, he was not afforded the right of representation and he was not offered the right of appeal. In Banasov -V- Pottle Pig Farm (UDDI 735) the Labour Court concluded that failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision outside the range of reasonable responses thus rendering the dismissal unfair. The question of the ‘reasonableness’ of the decision of an employer to dismiss was considered in Bank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned” The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows: 1) Did the company believe that the employee misconducted himself as alleged? 2) if so, did the company have reasonable grounds to sustain that belief? 3) if so, was the penalty of dismissal proportionate to the alleged misconduct? The respondent claims that this was not a transfer of undertakings and that therefore the previous conditions of employment enjoyed by the complainant did not necessarily continue. While there is no claim under TUPE in this instance, I note the case of 171/94 Merckx v Ford Motor Company Belgium SA is the relevant authority and established that where a franchise is terminated and awarded to a new undertaking pursuing the same activity there is a transfer of undertaking for the purpose of the TUPE regulations. I note also the evidence given by the complainant that he had been assured by his previous employer that this was covered by TUPE and therefore he had a legitimate expectation that his previous conditions of employment would continue. When he repeatedly raised this issue with his new employer it fell on deaf ears. The respondent could not but have been aware that it was this belief i.e. that the complainant should continue with his pre-existing terms and conditions including hours of work, that was at the root of the disagreement between them. The onus was on the respondent to clarify this issue before taking the decision to terminate the employment of the complainant. I find that the procedures used by the respondent were fatally deficient as they did not comply with the requirements of natural justice. An employee has the right to be informed in advance of the allegations and this did not happen in a satisfactory manner. An employee has the right to be represented and the complainant was never informed of this right. An employee also has a right of appeal, and no such appeal was offered. In addition to these deficiencies, I find that the decision to dismiss fell outside of the range of reasonable responses of a reasonable employer to the conduct concerned. When the complainant made it clear that he believed he was entitled to maintain his terms and conditions from his previous employer, the respondent should have investigated this assertion. If necessary, he should have sought advice relating to his obligation to maintain the complainant’s terms and conditions of employment, including hours of work which was at the centre of the dispute. Accordingly, I find that the complainant was unfairly dismissed. In determining the appropriate compensation, I note that the complainant in evidence said that he retired in March 2020 and therefore was not available for work from that date. The quantum of compensation therefore is limited to his loss from the date of his dismissal, 1st August 2019 until 6th March 2020 which I estimate to be €13,600. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the
CA-00032324-001. The complainant was unfairly dismissed, and I order the respondent to pay him the sum of €13,600 in compensation. CA-00033175-001, CA-00033175-002, CA-00033175-003, CA-00032324-002 to CA-00032324-0012 inclusive. I am precluded from hearing these complaints and therefore they are not upheld.
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Dated: 18-07-2022
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Unfair dismissal. Inadequate procedures. |