Complainant

Respondent

Parties

Louis  Mccabe

Mchugh Express Limited Dpd Sligo

Representatives

Michael Monahan Michael Monahan Solicitor

Ann Hickey Hickey Coghill Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032737-001

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032737-002

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032737-003

05/12/2019

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. The latter claim is dealt with in a separate case.  The complainant alleges he did not receive adequate breaks, was not paid for Sunday work, and did not receive his terms of employment.

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 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.

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.

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.

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 and the Terms of Employment (Information) Act, 1994 as the complainant had the opportunity to have these complaints heard previously.

CA-00032737-001, CA-00032737-002, CA-00032737-003.  I am precluded from hearing these complaints and therefore they are not upheld

Organisation of Working Time Act, Terms of employment.