Today’s article looks at Stobart (Ireland) Driver Services Limited v Carroll, a case which highlights the importance of fully investigating an informal complaint made to an employer and the consequences for an employer who penalises an employee for making a complaint.

Case Name And Reference: Stobart (Ireland) Driver Services Limited [2013] IEHC 581, (Judgement of Kearns P on 20th December 2013)

Court Or Tribunal: High Court

Jurisdiction/Subject Matter: Penalisation under the Safety Health and Welfare at Work Act 2005 (“the 2005 Act”), Rights Commissioner jurisdiction.


Facts

Mr. Carroll was employed as a truck driver by Stobart (Ireland) Driver Services Limited (“the company”) on 22nd October 2010. His employment was summarily terminated on 14th October 2011, one week short of allowing him to bring a claim under the Unfair Dismissals Act to the E.A.T.

The chronology of events leading to his dismissal is as follows:-

12.10.11 Mr Carroll worked a 15.5 hour shift. Before starting his day, he asked his manager not to schedule him to work on 13th October as he felt that he had worked excessive hours that week. His manager told him that he could work up to 60 hours in a week but would look into it but advised him to speak to another manager on his return from this particular shift.

13.10.11 Mr Carroll finished his shift at 10.30am and spoke to a different manager about his request. He was told to report to work at 23.55. His manager told him if he had a grievance he could pursue it through the company grievance procedure. Later that day, the employee was told by telephone message that he had only worked 47 hours and was required to report for work that night. When Mr Carroll received the message, he called the office and explained that he was too tired to drive. Later that evening, he felt that his job was at risk and so reported for work. The Company sent him home.

14.10.11 Mr Carroll was given a letter dismissing him from his employment on the ground that his withdrawal of labour was a refusal of a reasonable request/instruction from management which amounted to gross misconduct.


History Of Proceedings

Mr Carroll issued a complaint to the Labour Relations Commission claiming that his dismissal from his employment constituted a penalisation under s27 of 2005 Act. He sought, and was awarded, both compensation and reinstatement by the Rights Commissioner. The Company appealed the decision to the Labour Court. The Company alleged that the Rights Commissioner had erred in law and fact. In particular it said:

A. Mr Carroll’s complaint of tiredness was not a complaint under the 2005 Act and accordingly, argued that no claim of penalisation was made s27 of the Act.
B. Mr Carroll had not shown that he had suffered a detriment as a result of a protected activity under the Act.
C. The Rights Commissioner did not have the authority to recommend reinstatement.

In his defence, Mr Carroll said that when he told the Company he was too tired to work this fell within s13 of the 2005 Act, namely that he was taking reasonable care to protect his safety, health and welfare and that of any person who may be affected by his work. The Labour Court upheld the finding of the Rights Commissioner.


Determination

The President of the High Court ultimately upheld the decisions to reinstate the employee and compensate him for his loss of earnings. He made the following points:

1. The 2005 Act does not require a formal complaint via a grievance procedure to qualify as a complaint.

2. While in most cases reinstatement is unworkable because of the mutual breakdown in trust and confidence, here, due to the specific circumstances, and given the nature of the work involved, it was the appropriate action.

3. Dismissal with less than one year’s service qualifies as a penalisation under the 2005 Act. It is interesting to note in this case Mr Carroll had not claimed unfair dismissal under the Unfair Dismissals Acts as he had less than one year’s continuous service. He claimed penalisation under the 2005 Act. The President held that this included dismissal within the meaning of the Unfair Dismissals Act (as referred to in the 2005 Act), but it was not limited to dismissal as defined under that Act.


Legal Review

1. Ensure all “complaints” even those made on an informal basis are taken seriously, particularly when related to Health and Safety of employees and those around them. A formal grievance does not need to be filed by an employee to qualify as a complaint.

2. Ensure a proper investigation is carried out into all complaints, documenting and recording the steps taken to investigate and the findings made.

3. Penalisation under the 2005 Act includes dismissal within the meaning of the Unfair Dismissals Acts, but it is not limited to that interpretation. This allowed the Mr. Carroll to recover for his unfair dismissal without having one year’s service.

4. The Rights Commissioner’s jurisdiction to direct a specified course of action, includes the ability to direct that an employee be reinstated.

5. It is clear in this case that the step of dismissing Mr Carroll was directly related to his request not to be scheduled for work. Employees must be conscious of their obligations under section 13 of the 2005 Act to protect their own safety and that of those around them who may be affected by their work.