Complainant

Respondent

Parties

Marcelo  Dacosta

Jayden & Preston Ltd. t/a Parcel King

Complainant

Respondent

Anonymised Parties

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Representatives

Aisling Harrison ( Damien Tansey Solicitors)

Thomas Ryan (Peninsula)

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00058618-001

01/09/2023

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

CA-00058618-002

01/09/2023

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

CA-00058618-003

01/09/2023

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

CA-00058618-004

01/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058618-005

01/09/2023

The complainant states that in June 2020, he began working for Nova Point Ltd. as a delivery driver. He states that he was subsequently promoted to warehouse manager. The complainant states that in January 2023, Nova Point Ltd. was purchased by the respondent and the complainant’s employment was transferred to the respondent. The complainant states that no formal meeting was held in relation to this acquisition.

It was submitted that the respondent describes itself as a collection and delivery service for letters, parcels and packages. The CEO of the company is Mr Emeka Ikwukeme. He was the complainant’s direct line manager and was responsible for paying the employees their wages.

The complainant continued in his employment as a warehouse manager under the respondent and did not have to interview for this job. The complainant also states that he was not provided with any contract of employment/terms and conditions of his employment by the respondent. The complainant states that his daily tasks involved (i) unloading all of the parcels/containers from trucks using a forklift (ii) organising these parcels in the warehouse (iii) loading the delivery vans with the correct parcels and (iv) managing 22 members of staff who were working at the warehouse.

The complainant asserts that when the respondent took over the complainant’s employment, the complainant’s working environment changed drastically. He states that the respondent directed the complainant to work approximately 86 hours per week. The complainant’s new working hours were Monday to Saturday 3.30 am to 6.30 pm.

The complainant states that the respondent often requested that the complainant work overtime but the respondent did not pay the complainant an overtime rate of pay. The complainant states that he was only ever paid basic pay of between €11.10 and €11.60 per hour. He states that he had a set basic pay of €999 which was reduced to €955 in or around June 2023. The complainant states that while the normal practice was that the complainant was paid weekly every Friday, often times the respondent did not pay the complainant until the following Tuesday. The complainant asserts that staff frequently approached the complainant stating that they had not been paid for their work. The complainant states in his role as warehouse manager he had to text and telephone Mr Ikwukeme in order to ensure that the staff members were paid.

The complainant asserts that due to these egregious working conditions, staff turnover was very high and many employees quit their employment after a number of days/weeks. The complainant states that the respondent engaged in business with a Named Company A. They provide a delivery and logistics solutions service. The complainant states that Company A hired the respondent to deliver their parcels and are a very large and important customer of the respondent.

The complainant states that on 15 August 2023 at 1 pm a manager named R from Company A attended at the respondent’s warehouse in Sligo. This manager only ever attended the warehouse when there was an issue in relation to the delivery of their packages. On this occasion, packages from Company A were not delivered as the respondent was understaffed.

The complainant states that he engaged in an informal conversation with the manager from Company A and he asked the complainant which parcels at the warehouse belonged to him. The complainant explained that they were understaffed and showed him the said parcels that were undelivered.                

The manager informally asked the complainant what it was like to work for the respondent and the complainant states that he answered the manager truthfully and honestly. The complainant states that he told him that the working hours were excessive and difficult and staff turnover level was high due to the working conditions. The complainant states that approximately an hour later around 2 o clock the respondent telephoned the complainant. The respondent asked “what did you tell him ?” The complainant states that he responded that he had told the manager from Company A everything asked of him. The complainant states that the respondent then ended the call abruptly.

The complainant states that approximately five minutes later the respondent telephoned the complainant again and said “You told him about wages. You’re sacked. You’re fired. You no longer work for me.” The complainant states that the respondent instructed him to leave the property immediately which amounted to a summary dismissal without notice in a most public and humiliating fashion.

CA-00058618-001

The complainant states that he was not paid for the week of work before his dismissal (week of 7 – 13 August 2023) He also states that he was not paid for work completed on Monday 14 August 2023 and Tuesday 15 August 2023 up until 2 pm when he was dismissed without any notice.

CA-00058618-002

The complainant states that he did not receive his entitlement to annual leave/holiday pay for the year 2023.

CA-00058618-003

The complainant states that from January to August 2023, he was directed by the respondent to work long days of over 15 hours per day, six days per week which amounted to a working week of approximately 86 hours per week.  The complainant states that he worked a total of 2,752 hours over 32 weeks the total time period that he was employed with the respondent.

The complainant states that he was not allocated any set rest periods or breaks throughout his employment with the respondent. He states that he was not given adequate daily or weekly resting periods.

The complainant further states that he was only afforded approximately nine consecutive hours each day between his working shifts. He states that his only day off during the week was Sunday and this 24 hour period was not immediately preceded by the statutory 11 hour daily rest period as the complainant commenced work at 3.30 am on Monday mornings.

It was submitted that it is evident from the above that the respondent is in breach of the Organisation of Working Time Act and also the European Council Directive 93/104/EC more commonly known as the European Working Time Directive.

CA-00058618-004

The complainant states that he was never given a written contract of employment by the respondent nor was he given a written statement of terms and conditions of employment or an employee handbook.

It was submitted that the failure of the respondent to furnish the complainant with a contract of employment within 2 months of the commencement of his employment constitutes a breach of section 3 (1) of the 1994 Act.

CA-00058618-005

The complainant states that he was unfairly dismissed by the respondent on 15 August 2023 without notice. The complainant asserts that the respondent never raised any performance or behavioural issues with him and as a result never gave him an opportunity to address any such issues.

It was submitted that the complainant is entitled to fair procedures before termination of his employment and this ought to be provided for in the respondent’s employee handbook and the disciplinary procedure set out therein. However none were provided to the complainant.

The complainant submits that it is open to the WRC to have regard to the failure or refusal of the respondent to have applied any fair procedures in reaching the decision to dismiss in accordance with the provisions of section 7(2)(d) of the Unfair Dismissals Act and to reflect the respondent’s failure in the award of compensation to the complainant.

The complainant further states that he was dismissed without any notice and in this regard the respondent is clearly in breach of section 4 of the Minimum Notice and Terms of Employment Act, 1973. The complainant states that the respondent did not provide the complainant with two weeks’ notice of termination of his contract of employment.

The complainant states that he made substantial efforts to mitigate his loss following his unfair dismissal. He states that he commenced a new job as warehouse manager on 17 August 2023, two days after he was unfairly dismissed.

Colleagues of the complainant, Ms C, who worked in administration and Mr V and Mr B who were drivers with the respondent gave testimony to state that the working environment became very stressful when Mr Ikwukeme took over the company. They corroborated the complainant’s account of excessive working hours, not getting paid and egregious working conditions. These witnesses further stated that they received no contract of employment/terms and conditions when the business was taken over.

Mr Mc who was a sub contractor of the respondent gave testimony to state that he worked with the complainant. Mr Mc stated that the complainant had told him that he was fired by Mr Ikwukeme and was not allowed go into the shed. He further stated that the employees were subjected excessive working hours and were completely understaffed.    

Correct Entity / Name of Respondent  

The complainant’s legal representative states that all of the indications were that the complainant was employed by Parcel King Ltd including the branding of vans and the company website. However subsequently it came to their attention that the respondent was using a separate company Jayden & Preston Ltd. for  the purposes of paying the complainant’s wages. It was submitted that the two companies clearly have a common director in Mr. Ikwukeme and Parcel King Ltd and the business name “Parcel King” both share the same registered office address at 16 Maple Manor, Dublin 18. It was submitted that this issue further emphasises that the complainant was never furnished with a contract of employment or terms and conditions of his employment. The complainant’s legal representative submits that the respondent cannot be allowed to benefit by their own breach in failing to provide a contract of employment in circumstances where that same breach clearly fed this associated companies issue.

The case of A Trainee Assistant Film Director v X Productions DAC ADJ 00005397 was cited by the complainant wherein the WRC allowed an amendment to the relevant respondent’s title. It quoted the decision of Halal Meatpackers (Ballyhaunis) v EAT 1990 ILRM 293.

It was submitted that the complainant has concerns in relation to the irregularities between the respondent and the related company. The complainant states that it should be noted that he is recorded as not having paid or paid very little PAYE tax from his wages during his employment with the respondent.  The complainant states that he is very concerned in relation to the potential tax repercussions that this could have.

The complainant’s legal representative wrote to Jayden & Preston Ltd. in order to clarify the position to which they have not received a response. The complainant’s legal representative states that to date no objection has been made by the respondent in relation to this matter and the respondent is now estopped from raising it as an issue in circumstances where the time period has expired were a new standalone claim found to be required.              

The respondent states that the complainant commenced working with the respondent as a warehouse manager on 15 June 2023. The respondent states that the complainant resigned from his employment on 15 August 2023 and took up alternative employment 2 days later on 17 August 2023.

The respondent’s representative states that Parcel King is not the employer. Notwithstanding the above the respondent states the following:

CA 00058618-001

The complainant was paid his full entitlements under section 6 of the Payment of Wages Act.

CA 00058618-002

The respondent states that the complainant did receive his annual leave entitlement for 2023.  The respondent cites the caselaw in HSE v McDermott [2014] IEHC 331. The respondent states that the complainant commenced employment on 17 August 2023 and lodged his claim on 13 September 2023. It states that if the complainant is owed any holiday entitlement, which the respondent denies, it can only relate to the six months prior to 1 September 2023.

CA 00058618-003

The respondent denies the complainant was requested to work 87 hours per week. The respondent cites the Labour Court caselaw in Able Security v Hardjis Langsteins DWT1319 wherein the Court stated that the complainant carries an evidential burden to put in issue the facts upon which the claim is grounded and must outline the claim with enough particularity to allow a respondent know what it is they are being accused of.

CA 00058618-004

The respondent submits that the complainant was given a contract of employment but he refused to sign it.

CA 00058618-005

The respondent states that the complainant does not have the requisite 12 months service to bring a claim for unfair dismissal as he commenced employment on 15 June 2023 and resigned on 15 August 2023.

The respondent states that the complainant was not dismissed but in fact he resigned. The respondent cites caselaw in Longford Countv Council v Joseph McManus UDD1753, Devaney v DNT Distribution Company Ltd. UD 412/1993, Caragh Neeson v John O’ Rourke & Sean O’ Rourke Chartered Accountants UD2049/2011 and Employee v An Employer UD129/2012 in support of its case in this regard.

The respondent denies that the complainant was dismissed and states that the complainant walked out of his employment on 15 August 2023.

The respondent states that constructive dismissal under the Unfair Dismissals Act is the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.  

The respondent refers to the caselaw in Kenouche v Four Star Pizza UD 962/2008 which is cited in relation to the issue of the reasonableness of the complainant’s decision to leave.

The respondent further cites the caselaw in McCormack v Dunnes Stores UD1421/2008, Aryzta Bakeries v Cacs UDD1812, An Employee v An Employer UD720/2006 and Pungor v MBCC Foods Ltd UD584/25 in relation to the requirement in a constructive dismissal claim for a complainant to exhaust the internal disciplinary processes and procedures in an attempt to resolve any grievance.

The respondent further cites the caselaw in Donnegan v Co. Limerick VEC UD828/2011. The respondent outlines that in that case the EAT stated “the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”  and that “the respondent’s conduct was not so unfair or so damaging to the claimant’s rights and entitlements that she had no option but to resign her position.”

The respondent also cites the caselaw in Berber v Dunnes Stores Ltd in relation to the test for assessing whether a contractual term was broken.

Finally, the respondent refers to the case of Ian Flaherty v College Freight Ltd. [2009] 6 JIEC 2901. The respondent states that in that case “it was accepted that there was a less than harmonious working relationship between the claimant and DM but did not accept that the level of that relationship was such that the claimant could show the conduct of the respondent was so unreasonable so as the justify a claim of constructive dismissal.”        

In relation to TUPE Regulations, the respondent denies that there was any transfer under TUPE. The respondent’s legal representative states that while the complainant identified a transfer of undertakings in January 2023, he did not bring an action under TUPE. It was submitted that any claim under TUPE should have been instituted within 6 months of January 2023 or at the very latest before the end of June 2023. The respondent submits that in those circumstances the Adjudication Officer does not have jurisdiction to hear any complaint under TUPE.

I have carefully examined all of the documentation and evidence heard in the within case.  I found that the complainant was a credible witness and found his testimony to be cogent and compelling. I also found the witnesses on behalf of the complainant credible and persuasive in their testimony. These witnesses corroborated and substantiated the claims made by the complainant. I find that there were inconsistencies in the evidence provided by the respondent and found the testimony to be lacking in credibility and not plausible in the circumstances.  

CA-00058618-001 – Payment of Wages

The complainant states that he was not paid for the week of work before his dismissal (week of 7 – 13 August 2023) He also states that he was not paid for work completed on Monday 14 August 2023 and Tuesday 15 August 2023 up until 2 pm when he was dismissed without any notice. The complainant presented cogent testimony and I find that this complaint is well founded. I order the respondent to pay the complainant his wages for the week of 7 to 13 August 2023 and for work completed on Monday 14 August and Tuesday 15 August up until 2 pm.

   CA 00058618-002 – Annual Leave/Holiday Entitlement

The complainant states that he did not receive his annual leave/holiday entitlement for the year 2023. He stated that he had booked seven days annual leave from 21 to 29 August but was summarily dismissed by the respondent on 15 August 2023. In the absence of any records confirming compliance with the Act and as the complainant has made out a stateable case and the respondent has not provided any rebutting evidence, I am satisfied on the balance of probabilities that the Act has been contravened. I order the respondent to pay the complainant his entitlement to 13 days holiday pay.  I further award the complainant €2000 compensation in respect of the breach of the legislation in this regard.

CA 00058618-003 – Organisation of Working Time Act – rest breaks – excessive hours

The complainant gave cogent testimony with regard to breaches by the respondent of the Organisation Working Time Act with regard to not receiving appropriate breaks and having to work excessive hours in consecutive weeks. In the absence of any records confirming compliance with the Act and as the complainant has made out a stateable case and the respondent has not provided any rebutting evidence, I am satisfied on the balance of probabilities that the Act has been contravened. I order the respondent to pay the complainant €2000 compensation in respect of said breaches of the legislation.

CA 00058618-004 – Terms and Conditions of Employment (Information) Act

Based on the testimony from witnesses at the hearing, I note that the respondent took over the business from the previous owners in January 2023. The complainant states that he did not receive a contract of employment with his terms and conditions of employment.  Based on the evidence heard and in the absence of any documentary evidence proffered by the respondent, I am satisfied that the complainant has established a breach of the Act. I order the respondent to pay the complainant €2000 for said contravention of the Act.

CA 00058618-005 – Unfair Dismissal

While the respondent argued that the complainant did not have the requisite 12 months service to take an unfair dismissal claim, the complainant submitted that his tenure period which accrued during the employment with Nova Point Ltd. was transferred to the respondent when he acquired the business and accordingly the complainant has the required continuity of service to bring an unfair dismissal’s claim under Regulation 4 of the TUPE Regulations.

Based on the evidence heard, I find that the complainant was dismissed without any fair procedure being applied to him. The witness Mc Mc who worked alongside the complainant gave cogent testimony with regard to the termination of the complainant’s employment. While the respondent at the hearing states that the complainant resigned his employment, based on the sequence of events and witness testimony, I am satisfied that the respondent summarily dismissed the complainant without any fair procedure. I note the diligence of the complainant in seeking alterative employment, in that, he commenced a new job as warehouse manager immediately after he was dismissed.

In all of the circumstance of the within complaint, I find that the complainant was unfairly dismissed by the respondent. I order the respondent to pay the complainant compensation of 4 weeks pay in the amount of €4000 which is just and equitable in all of the circumstances.   

CA-00058618-001 – Payment of Wages

I find that this complaint is well founded. I order the respondent to pay the complainant his wages for the week of 7 to 13 August 2023 and for work completed on Monday 14 August and Tuesday 15 August up until 2 pm.

CA 00058618-002 – Annual Leave/Holiday Entitlement

I find that this complaint is well founded. I order the respondent to pay the complainant his entitlement to 13 days holiday pay.  I further award the complainant €2000 compensation in respect of the breach of the legislation in this regard.

CA 00058618-003 – Organisation of Working Time Act – no rest breaks – excessive hours

I am satisfied on the balance of probabilities that the Act has been contravened. I find that this complaint is well founded. I order the respondent to pay the complainant €2000 compensation in respect of said breaches of the legislation.

CA 00058618-004 – Terms and Conditions of Employment (Information) Act

I find that this complaint is well founded. I order the respondent to pay the complainant €2000 for its contravention of the Act.

CA 00058618-005 – Unfair Dismissal

I find that the complainant was unfairly dismissed by the respondent. I order the respondent to pay the complainant compensation of 4 weeks pay in the amount of €4000 which is just and equitable in all of the circumstances.  

Organisation of Working Time Act, Unfair Dismissal, Contract of Employment, Payment of Wages Act