A truck driver whose job was left “in limbo” for two years after a client company of his employer banned him from its site is to be paid over €40,000 for constructive dismissal.
The worker’s trade union said he had been made a “fall guy” in “a game between the main client and the contractor” and “never officially terminated but left without any work – essentially the same thing”.
Desmond O’Farrell’s complaint under the Unfair Dismissals Act against McGuire Haulage Ltd was upheld in a decision published this morning by the Workplace Relations Commission.
It follows the refusal of the Labour Court last year to order the company to pay him redundancy.
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Siptu rep Rachel Hartery told the WRC that her member worked “primarily and in effect exclusively” on the Danone site in Rocklands, Co Wexford, up to June 2019.
Her client’s case was that he had gone to the site on the night of Friday 21st that month on his way to pick up a work phone he had forgotten and needed in order to get his schedule for the next day.
To do this he needed to take a fob from a colleague working at the Danone site to get into his truck, which was parked at another nearby site at Larkin’s Cross, Ms Hartery said.
“Nothing untoward transpired and he had collected his work phone,” Ms Hartery said.
The following Monday, he was informed that Danone had withdrawn his security clearance for Rocklands – and was “left without any work”, Ms Hartery said.
The owner of McGuire Haulage spoke to Mr O’Farrell that day and said he would “sort things out”.
The tribunal was told the company carried out an investigation and concluded in October that year that its staff “had never been formally advised not to enter the Rocklands site after hours and off duty”.
No disciplinary action was warranted, the report added.
However, Ms Hartery said that email correspondence between the three parties, including Danone, revealed that it was the respondent employer, McGuire Haulage, which had “suggested the site ban to Danone”.
The ban was suggested on the morning of Monday 24 June 2019, she said.
The firm offered Mr O’Farrell other work at a site in Rathcoole, Co Dublin, which the trade union rep said was “completely unsuitable” for a worker living in Wexford.
In his evidence, Mr O’Farrell said he could have been “easily given work” at the Larkins Cross site in Wexford.
The company maintained that workers at that site “had to be able to access the [Danone] Rocklands site.
Ms Hartery said the “tone” of email traffic was that Danone “had had issues with McGuire’s and security before”.
Mr O’Farrell had been “sacrificed” and made a “fall guy” in order to “curry favour with Danone managers”, she said.
She argued this was “completely disproportionate and totally unfair” as a response to an “honest and very minor error”.
Her client resigned “in complete frustration” in July 2021, she said.
HR consultant Hugh Hegarty of Management Support Services Ireland, appearing for the company, said there was no dispute on the facts of the case and submitted that the withdrawal of Mr O’Farrell’s site clearance was a “regrettable but perfectly reasonable action”.
He said biosecurity was “paramount” at the Danone site and that an end client had the “absolute right” to say who came on to their premises.
The only work the company had in Wexford was “inextricably linked” to the Danone site, he added.
“By refusing the Dublin work the complainant was effectively marking time while waiting for other more suitable Wexford work,” Mr Hegarty said.
“He was always an employee and his resignation was completely unnecessary,” he said.
Mr O’Farrell’s complaint was upheld in a decision published this morning (FRI).
The adjudicating officer in charge of Mr O’Farrell’s case at the WRC, Michael McEntee, wrote that the complainant had been left in “in a limbo employment situation – legally not eligible for redundancy ... but still out of work”.
“A suggestion of work in Dublin, a round trip of some 250 miles per day, was not a realistic proposition,” he wrote.
“An employee has work or does not have work. If he or she does not have work then the onus is on the employer to take proactive steps to rectify the situation by finding new work or ending the contract,” he wrote.
“To allow a limbo situation to develop is a breach of contract on the mutuality basis,” he added.
He added that the employer “appeared not entirely reasonable” in suggesting the site ban for Mr O’Farrell.
He rejected the company’s position that it had been the complainant who was unreasonable for refusing to relocate from Dublin to Wexford.
The company was “technically” correct to say Mr O’Farrell had “not fully utilised the full range of employer procedures”, he wrote, but added that this had to be balanced by the fact that both parties were engaging at the WRC and the Labour Court from 2019 to 2021.
Mr McEntee found that Mr O’Farrell had made out a case of constructive dismissal and ordered the firm to pay Mr O’Farrell a sum of €34,680, a sum equivalent to 51 weeks’ pay.
He also found the complainant was due eight weeks’ notice pay under the Minimum Notice and Terms of Conditions of Employment Act and awarded a further €5,440 – bringing the total orders against McGuire Haulage to €40,120.
