A Sligo parcel depot manager unfairly sacked in a row that started with him refusing his boss’s demand that he start work three hours earlier than normal has been awarded over €13,000 in compensation.
Louis McCabe gave evidence that his new employer demanded longer and longer hours and questioned him as to why he was “late” when he arrived at 9am.
His legal representatives maintained that his terms of employment were protected under the transfer of undertakings regulations when McHugh Express Ltd, trading as DPD Sligo, took over his employment from Gerard Doherty Transport Ltd in April 2019 – and that he was therefore entitled to a 9am start time.
A Workplace Relations Commission (WRC) adjudicator who upheld his unfair dismissal complaint against McHugh Express Ltd wrote that Mr McCabe had a “legitimate expectation” that his employment terms would be honoured and that this was “at the root of the disagreement” that ended in his sacking.
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The company denied there had been a transfer of undertakings and insisted Mr McCabe had been fairly dismissed.
Mr McCabe’s case was that the new franchisee, Brendan McHugh, sent him to work at a new premises in April 2019 demanding that he start work at 6am, which his solicitor, Michael Monahan, argued was an “immediate” breach of the transfer of undertakings regulations as his client’s previous rota was 9am to 6pm with an hour for lunch across three days a week.
Mr McHugh, however, “insisted on longer hours” which saw Mr McCabe working 46.5 hours over 3.5 days, the complainant said.
Mr McCabe said he was a “loyal employee” and that he worked the hours on the understanding that they would return to normal after the first week.
The hours demanded the following week were longer again, he said, with his new boss demanding he start work at 7.30am and work until close of business without specifying what time that was, Mr McCabe said.
Mr McHugh went on to tell him there would be no overtime for working beyond eight hours, Mr McCabe added.
His response was that he could not work a 12-hour day “without breaks or payment”.
After five weeks of these long hours, Mr McCabe wrote to his employer stating that unless he was paid overtime he would go back to his original hours a week later on July 1st, the WRC was told.
Mr McHugh wrote back to say the job was not a “9-6 hour position”.
On July 1st, Mr McCabe said he came in at 9am and was approached at his desk by his boss at 9.20am, who said he was “late”.
“[Mr McHugh] stood over the desk repeating: ‘Starting time is 8am’ over and over again,” the complainant told the tribunal.
He told his boss he felt threatened and asked him to move away before informing him that he would take his lunch break from 1pm to 2pm, he said.
Mr McHugh told him not to leave the depot, Mr McCabe said – but added that he closed up the premises and went on break anyway.
The following day he was suspended without pay pending a disciplinary investigation, he said – and he was ultimately dismissed on charges of “conduct tending to bring the employer into disrepute” and “gross default and wilful neglect” of his duties.
The company argued that it had been made “very clear” to the complainant that the hours of work were 8am to 6pm.
Its position was that Mr McHugh approached Mr McCabe at his desk on July 1st, 2019, to speak to him about being “late for work” and that Mr McCabe “dismissed” his boss.
Mr McCabe had left the premises on July 1st telling customers that a member of DPD’s head office staff who was there on other business would serve them, the employer’s solicitor, Ann Hickey, submitted.
She added that Mr McCabe had left behind a consignment of notes on a desk in an unlocked office in breach of data-protection rules.
Mr McCabe’s solicitor, Mr Monahan, submitted that the disciplinary process was procedurally flawed.
He said his client had been left “bewildered” by additional accusations he had been confronted with less than a day before a disciplinary meeting at which Mr McCabe was not informed of his right of representation – nor provided with an avenue for appeal in the dismissal letter.
In his decision, adjudication officer Shay Henry wrote that Mr McCabe was not entitled to have a series of additional pay, working hours and employment rights claims heard in view of the fact that these had already been called on for hearing and that the complainant had not appeared on the day.
However, he found that he had jurisdiction to decide on the unfair dismissal complaint.
Mr McCabe had a “legitimate expectation” that his previous employment terms would continue after the takeover on foot of assurances from his previous employer.
The adjudicator wrote that this was “at the root of the disagreement” and that despite Mr McCabe repeatedly raising the matter it “fell on deaf ears”.
He wrote that the disciplinary procedures used by the employer were “fatally deficient” and did not comply with the requirements of natural justice.
Mr Henry upheld the unfair dismissal complaint and awarded Mr McCabe €13,600 in respect of his losses between his dismissal and his retirement from the workforce just over seven months later in March 2020.
