Stobart (Ireland) Driver Services Ltd v Keith Carroll

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 20 December 2013
• Neutral Citation: [2013] IEHC 581
• Court: High Court
• Date: 20 December 2013

[2013] IEHC 581

THE HIGH COURT

[No. 38MCA/2013]

Stobart (Irl) Driver Services Ltd v Carroll

IN THE MATTER OF THE SAFFETY HEALTH AND WELFARE AT WORK ACT 2005

BETWEEN

STOBART (IRELAND) DRIVER SERVICES LIMITED

APPELLANT

AND

KEITH CARROLL

RESPONDENT

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S27

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S13(1)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S13(A)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S13(1)(A)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S28(3)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S27(3)(C)

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S28

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S13

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S13(H)(I)

HENRY DENNY & SONS (IRELAND) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 2 ILRM 421

FAULKNER v MIN FOR INDUSTRY & COMMERCE UNREP MURPHY 25.6.1993 1993/11/3511

EMPLOYMENT EQUALITY ACT 1977 S21

MULCAHY v MIN FOR JUSTICE & WATERFORD LEADER PARTNERSHIP LTD 2002 13 ELR 12 2003/ 38/9136

KELLY v CMSR OF AN GARDA SIOCHANA UNREP SUPREME 5.11.2013 2013 IESC 47

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

SHARMA & SAHARAN v EMPLOYMENT APPEALS TRIBUNAL & ANOR 2010 21 ELR 262 2010/46/11698 2010 IEHC 178

SAFETY HEALTH & WELFARE AT WORK ACT 2005 S27(2)(A)

EEC DIR 391/1989

EEC DIR 383/1991

EMPLOYMENT

Dismissal

Appeal from decision of Labour Court - Claim that dismissal constituted penalisation - Truck driver - Complaints of tiredness and inability to fulfil duties - Dismissal for gross misconduct for refusal of reasonable request - Health and safety - Reinstatement ordered by Labour Court - Definition of âÇÿpenalisation' - No grievance procedure invoked - Appeal on point of law - Requirement to give reasons - Less than one year service - Whether complaint made within meaning of legislation - Whether required to follow grievance procedure - Whether reasons for decision given by Labour Court adequate - Whether reinstatement appropriate remedy - Whether Labour Court erred in law - Henry Denning & Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34; Mara (Inspector of Taxes) v Hummingbird Limited [1982] 2 ILRM 421; Faulkner v Minister for Industry and Commerce (Unrep, Murphy J, 25/6/1993); Mulchay v Minister for Justice, Equality and Law Reform [2002] ELR 12; Kelly v Commissioner of An Garda Siochana [2013] IESC 47, (Unrep, SC, 11/5/2013); Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, (Unrep, SC, 6/12/2012); Faulkner v The Minister for Industry and Commerce [1997] ELR 107 and Sharma and Saharan v Employment Appeals Tribunal and J&I Security Limited (Notice Party) [2010] 21 ELR 262 considered - Safety, Health and Welfare at Work Act 2005 (No 10), ss13(1), 27 and 28(3) - Unfair Dismissals Act 1977 (No 10) - Council Directive 89/391/EEC - Council Directive 91/383/EEC - Appeal dismissed (2013/38MCA - Kearns P - 20/12/2013) [2013] IEHC 581

Stobart (Ireland) Driver Services Limited v Carroll

Facts: On appeal from the Labour Court, the respondent claimed that his dismissal constituted penalisation under s. 27 Safety, Health and Welfare at Work Act 2005. The Labour Court had found the claim to be well-founded. He was a truck driver who believed that he had worked excessive hours and was dismissed having reported that he was too tired to drive. The question arose as to deference to the Tribunal and the adequacy of reasons given for reinstatement pursuant to the decision of the Labour Court.

Held by Kearns P. that the Court would dismiss the appeal of the appellant and uphold the determination of the Labour Court. The respondent acted appropriately in reporting his fatigue. He made a complaint of the risk to his safety. The reasons given by the Labour Court were adequate.

1 JUDGMENT of Kearns P. delivered on the 20th December, 2013.

INTRODUCTION

2 1. This is an appeal from the decision of the Labour Court given on the 17 ^th January, 2013, in respect of an appeal which the appellant had brought from a determination of the Rights Commissioner. In the proceedings the respondent claimed that his dismissal from his employment with the appellant constituted penalisation under s.27 of the Safety Health andWelfare at Work Act 2005 (hereafter the Act of 2005) and claimed compensation and reinstatement. The Rights Commissioner upheld the respondent's claim on the 29 ^th August, 2012.

3 2. The respondent is an employee of the appellant company and was employed by it as a truck driver on the 22 ^nd October, 2010. His employment was terminated by the respondent company on the 14 ^th October, 2011, after the respondent had made a complaint of being tired and unable to fulfil his driving duties.

THE FACTUAL BACKGROUND

4 3. On the 12 ^th October, 2011, the respondent completed a shift of driving a truck long distance for the appellant company. It had involved a 15.5 hour journey from Dublin to Ballinasloe and back, inclusive of breaks of 1.75 hours. Before departing on this journey the respondent's manager Mr. Kelly had informed him that his next shift would begin on the 13 ^th October, 2011, at 23.55. The respondent requested not to be rostered to work on the 13 ^th October, 2011, as he believed he had worked excessive hours. Mr. Kelly took the position that drivers could work up to 60 hours but that he would look into it. The respondent was told to speak to Mr. Pepper, another manager, which he did on his return to site on the morning of the 13 ^th October, 2011. Mr. Pepper told him to go home and get some sleep before commencing his next shift at 23.55. The respondent then left the site at 10.30am and went home to bed. There was at this stage no reference by the respondent to his tiredness or fatigue or inability to work the later shift. He was advised by his manager that, if he had a grievance he could pursue it through the appellant's grievance procedure.

5 4. The respondent woke at approximately 16.40 to a number of missed calls from Mr. Pepper. On checking his voicemail the respondent had a message from Mr. Pepper stating that, having checked the records, the respondent had worked 47 hours and had not yet reached his maximum working hours. The respondent had claimed to have worked 53 hours up to that stage. The next message was to inform him that his shift was to start at 23.45.

6 5. The respondent then called to speak with Mr. Pepper but he was off site so he spoke with another manager Ms. Kelleher. A number of conversations ensued in which the respondent stated several times that he was too tired to drive. The last of these conversations took place at 18.45 after which the respondent went back to bed after being informed that the run would be left open.

7 6. The respondent began to feel that his job would be at risk and so later that evening the respondent called his work to take on the shift but was informed that alternative arrangements had been made.

8 7. The next day, the 14 ^th October, 2011, the respondent received a letter from the appellant dismissing him on the grounds that his withdrawal of labour was deemed to be a refusal of a reasonable management request/instruction and under the appellant's disciplinary procedure was deemed to amount to a gross misconduct.

HISTORY OF THE PROCEEDINGS

9 8. On the 29 ^th August, 2012, the Rights Commissioner issued a recommendation that the respondent's complaint was well-founded and required the appellant to re-instate the respondent from the 20 ^th October, 2011, on his previous terms and conditions and to compensate him for his loss of wages from the 20 ^th October, 2011, to the date the decision was implemented. The Rights Commissioner stated as follows:-

".. I find that [the respondent's] complaint regarding being fatigued and having worked excessive hours satisfies s.27(3)(c) while the [appellant] was fully entitled not to automatically accept 'fatigue' as a reason for the [respondent] not working his next shift, a complaint by a driver of a large truck that he was fatigued and concerned about his ability to drive safely did, I believe, warrant investigation...."

10 .....no investigation was carried out or fair procedure followed prior to the decision to terminate the [respondent's] employment....

11 … The [respondent] was summarily dismissed for refusing to comply with an instruction to work as rostered. I am satisfied that if he had not complained of being fatigued due to working excessive hours, he would not have been dismissed as these were the reasons for his refusal to work the shift."

12 9. The Rights Commissioner went on to decide:-

"Having fully considered the oral and written submissions made by the parties, I find the [respondent's] complaint to be well founded. I require the [appellant] to reinstate the [respondent] with effect from 20 ^th October 2011. The [respondent] is to be reinstated on his previous terms and conditions of employment.... I also require the [appellants] to compensate the [respondent] in full for his loss of wages from the 20 ^th October 2011 to the date of this decision when implemented."

13 10. In their appeal to the Labour Court the appellant asserted that the Rights Commissioner had erred in law and fact, that the respondent had not made out a claim of penalisation under s.27 of the Act of 2005, that the respondent had not shown that he had suffered a detriment within the meaning of s.27 of the Act of 2005 as a result of a protected activity and that the remedy of reinstatement fell outside the remit of the recommendation of the Rights Commissioner.

14 11. The respondent acting under s.13(l) of the Act of 2005 gave as his evidence in the Labour Court that he represented to his employer that he was too fatigued to perform the driving as requested by the...