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Latest in Employment Law>Case Law>Stobart (Ireland) Driver Services Limited v O’Riordan [2012]
Stobart (Ireland) Driver Services Limited v O’Riordan [2012]
Published on: 15/02/2013
Issues Covered: Working Time
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Background

Section 17 (1) of the OWT Act obliges an employer, where neither a contract of employment or other agreement specifies the normal or regular starting and finishing times of work, to provide an employee with at least 24 hours' notice of such times before the day or days concerned. Section 17 (2) provides for a similar 24 hour notice obligation where the employer proposes that an employee work additional (or overtime) hours. Finally, Section 17 (4) allows an employer, where circumstances arise that could not reasonably have been foreseen, to alter the hours of work set out in the relevant notification. 

In this case, the claimant was employed as a truck driver by the respondent. He alleged that the respondent breached the terms of Section 17 of the Act in that it failed to provide him with adequate notice of a change of working hours. When he refused to comply with his employer’s instruction to work at an earlier time, he alleged that he was penalised by his employer in terms of Section 26, in that he was subjected to the employer’s disciplinary procedure because he refused to comply with a breach of the legislation. 

A Rights Commissioner (RC) dismissed his claims and this finding was appealed to the Labour Court. In his evidence, the claimant stated that on 19th July 2011 when he was resting between shifts, he received a phone call from a representative of his employer instructing him to commence work at 6.00 am the following morning. In response, the claimant pointed out that he was not due to work until at least 18 hours later and he asked why he was being called in early. He was told that the caller did not know why he was being called in early but he was instructed to come in nonetheless. Thus, he argued that no exceptional circumstances to justify his attendance were provided but he was still subjected to the respondent’s disciplinary procedure. 

The respondent in turn submitted that the claimant was already on notice that his work pattern was not fixed and that he might be called upon to vary his shift pattern to meet the needs of the business. An unforeseen situation arose and Section 17 (4) allows for this. Thus, it maintained that it was entitled to process the refusal of the employee to report for work through its disciplinary procedure.

The Court firstly noted that it was accepted by both parties that 24 hours' notice of the relevant hours of work was not given by the respondent, so that it had to rely on the provisions of S.17 (4) as a justification. The Court took the view that the onus was therefore on the respondent to make out the grounds of defence provided by that sub-section. However, it noted that the respondent expressly stated in its evidence that it could not recall the exceptional circumstances that might justify the late notice. Thus, the Court concluded that it could not rely on the defence set out in S.17 (4). By extension, it decided that the claimant was entitled to rely upon S.26 to protect himself from penalisation for refusing to co-operate with a breach of the Act. 

The decision of the RC was therefore set aside and the respondent was ordered to rescind any sanction imposed upon the complainant and remove it from his personnel record and to comply in future with the provisions of the Act in respect of scheduling of hours. The claimant was also awarded €5000 in compensation.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 15/02/2013
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