In the recently published High Court case of Stobart Ireland Driver Services Limited v Keith Carroll  IEHC 581, the High Court was asked to consider an appeal from a decision of the Labour Court which was given on 17th January 2013 which the appellant had brought against a Right’s Commissioner’s determination. The respondent had claimed that his dismissal constituted penalisation under section 27 of the Safety Health and Welfare at Work Act 2005. The Rights Commissioner upheld the respondent’s claim on the 29th August, 2012.BackgroundThe respondent was employed by the appellant company as a truck driver on the 22nd October, 2010. His employment was terminated by the respondent company on the 14th October, 2011, after the respondent had made a complaint of being tired and unable to fulfil his driving duties. The respondent had completed a 15.5 hour journey from Dublin to Ballinasloe and back on 12th October 20111 and was informed that his next shift would begin on 13th October 2011 at 23.55. The respondent asked that he not be rostered as he believed that he had worked excessive hours. The respondent’s manager believed that drivers would work up to 60 hours and would check the position out. The respondent subsequently went home to bed and made no reference to his tiredness or inability work his scheduled shift that evening. The respondent’s manager also informed him that he could lodge a grievance if he had any difficulties.The respondent received a subsequent message from his manager informing him that he had not reached his maximum working hours and to report for his shift at 23.45. The respondent then telephoned the appellant company and informed them he was too tired to work. The respondent then telephoned to say he would take his shift but was told that arrangements had already been put in place.On 14th October 2011 the respondent was dismissed 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“. (ref: extract http://www.courts.ie)Labour Relations Commission and Labour Court HearingOn the 29th August, 2012, the Rights Commissioner issued a recommendation that the respondent’s complaint was well-founded. The appellant company was ordered to re-instate the respondent from the 20th October, 2011 and to compensate him for his loss of wages from the 20th October, 2011, to the date the decision was implemented. The Rights Commissioner stated:“..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….…..no investigation was carried out or fair procedure followed prior to the decision to terminate the [respondent’s] employment….…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.” (ref: http://www.courts.ie)The appellant stated in their appeal 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. The Labour Court held:-“..the Court is satisfied that the [respondent’s] notification to management of his tiredness…can come within the parameters of acting in compliance with the relevant statutory procedures as provided for within s.27(3)(a)….…that the decision to dismiss the [respondent] followed immediately after exchanges took place concerning the [respondent’s] request not to be scheduled for duty….The Court notes that the dismissal was carried out in a very precipitous manner; it did not follow the company’s disciplinary procedures and was a departure from the company’s normal practice. In such circumstances the proximity of the dismissal following the raising of a health and safety matter raises a causal connection between the detriment complained of and the invoking of the Act. Having considered all the relevant details the court is satisfied that but for the representations he made about being too tired to work the [respondent] would not have been dismissed as these were the reasons for his refusal to work……For the reasons set out above the Court finds the [respondent’s] claim to be well founded.” (ref: http://www.courts.ie)Appeal to the High CourtThe High Court considered Section 13(1)(1) of the Safety Health and Welfare at Work Act 2005 in respect of an employee taking reasonable care to protect their health and safety at work. It also considered the definition of penalisation under Section 27 of the 2005 Act.The appellant contended in their appeal that the respondent had not made any health and safety complaint to them and therefore any complaint of excessive hours could not be construed as a complaint which would be a protected act under section 27. They also contended that a reference to tiredness could not be seen as a complaint under section 28.ConclusionThe High Court noted that “Penalisation under s.27(3) of the Act of 2005 states that “an employer shall not penalise or threaten penalisation against an employee for (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”. (ref: http://www.courts.ie)The Court also noted that there was no requirement under the Act to report a complaint via a grievance procedure and that “…to limit an employee’s ability to report a complaint to working hours would greatly inhibit the application of the Act…..”. (ref:www.courts.ie)The High Court observed that where an appeal is made on a point of law from the Labour Court that there is “significant curial deference” extended to any specialist tribunals. It referred to a series of cases including Mara (Inspector of Taxes) v. Hummingbird Limited  2 I.L.R.M. 421 noting that a court may only interfere in a finding of an expert tribunal where there was no evidence whatsoever to support it. It also referred to the decision of Murphy J in Faulkner v. Minister for Industry and Commerce (Unreported, High Court, Murphy J., 25th June, 1993 in this regard.Kearns J noted that it could not be said that in not invoking the grievance procedure, the respondent could not make a complaint under Section 13. He further noted that the reasons given by the Labour Court for its decision, including that of reinstatement, were adequate. Kearns J also dismissed the appellant company’s argument that relief should not have been granted because by analogy with the Unfair Dismissal Act 1977 (as amended) the employee would not have qualified as he had less than twelve month’s service. He noted the respondent did not lodge a claim for unfair dismissal.Kearns J concluded that “The Rights Commissioner and the Labour Court, to which this Court extends deference, both concluded that the respondent was subject to penalisation as set out by s.27 of the Act of 2005 for making a complaint under s.13 of the same Act“He further concluded that there was no issue as to fair procedures and the respondent acted appropriately in reporting his fatigue and that he was subject to penalisation under section 27. The determination of the Labour Court was upheld and the appellant’s appeal dismissed.