by Anne Lyne February-25-2014 in Employment Law

In a recent High Court decision, (Stobart (Ireland) Driver Services Ltd -v- Carrol), Kearns J upheld a Labour Court decision to reinstate and compensate a lorry driver who had been dismissed after he complained that he was too tired to work a shift. He was reinstated to the job from the date of dismissal which included all back pay which amounted to approximately €30,000.

Before his shift on 12 October 2011 the driver was informed he was rostered to work at 23.55 the following day. He requested not to be rostered as he believed he had worked in excess of the maximum allowable driving hours. He was informed that he had not. He was told to go home following completion of his shift on the morning of 13 October and return for the next shift at 23.55 that night.

Later that day the driver telephoned a manager and explained that he was too tired to drive. Feeling that his job may be at risk, the driver later rang again and offered to work the shift but was informed he was not needed. The employer wrote to him on 14 October informing him he had been dismissed as his withdrawal of labour was deemed to amount to gross misconduct.

The Labour Court found that the dismissal of the Driver amounted to penalisation the Safety Health and Welfare at Work Act 2005. This was appealed to the High Court by the employer.

The High Court judgement is notable for a number of reasons:

  • This decision is a milestone in respect of awards made under the Act. Since it was introduced in 2005, awards tended to be of low value, in or around €5,000. This decision now puts these claims firmly on the radar as a viable effective remedy for employees whose health and safety has been put at risk.
  • The High Court ruled that telling his employer he was too tired to drive was a complaint for the purpose of the Safety Health and Welfare at Work Act 2005. There was no requirement to make such a complaint under the grievance procedure, or to make such a complaint during working hours.
  • The fact that the dismissal was found to be penalisation under section 27 of the Safety Health and Welfare at Work Act 2005 was crucial. Normally an employee needs one year’s service to bring a case for Unfair Dismissal under the Unfair Dismissals Acts 1977-2011. This case confirms that this service requirement is not needed for a claim under the Health and Safety Act.
  • Reinstatement of the driver to his role was justified on the basis that as a lorry driver would spend the majority of time away from his employer’s base. The importance of the inter-personal relationship with his employer was less of a concern.
  • The High Court stated that the reasons given by the Labour Court in its decision were sufficient and Kearns J specifically noted the Court’s curial deference to the Labour Court as a specialist court: “The court may only interfere in a finding of an expert tribunal where there was no evidence whatsoever to support it.”

 

If you require any further information please contact Anne Lyne or any member of the Hayes Employment Team.

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About the Author

Anne Lyne
Anne Lyne

Anne is a partner and leads the Employment Law team at Hayes solicitors advising on the full range of employment related issues.

Anne understands that if an employment related issue arises that responsiveness and practical assistance are key for clients. Anne and the team are available for clients to ensure that matters are addressed promptly.