Complainant

Respondent

Parties

Mark Thompson

Bus Eireann

Representatives

Mr Alan Ledwith BL instructed by Ms Paula Cullinane, Solicitor,  O'Donnell Murray LLP.

Mr Owen Keany BL instructed by Cian Beecher, Arthur Cox LLP.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059897-001

09/11/2023

The complainant is a bus driver and has been employed by the respondent since 1st July 2003, he remains in this employment.

This complaint was received by the Workplace Relations Commission on 9th November 2023.

The complainant attended the hearing remotely.

Introduction and Background

1.       The Complainant, Mark Thompson, is employed as a Bus Driver by the Respondent since 2003 pursuant to a contract of employment.  He is based in Tralee, County Kerry and is classified as a spare driver.

2.       Spare drivers have no fixed work and accordingly cover sickness, annual leave, etc.  They do, however, have a collectively agreed five-day week roster detailing work slots of early, middle, and late duties. 

3.       Spare driver rosters are required to be completed by the Respondent at least 24 hours in advance of the Driver start time pursuant to Section 17 of the Organisation of Working Time Act 1997, as amended. [hereafter the OWTA]  

4.       Drivers are provided with a start time and finish time based upon a day’s work plus one-hour unpaid break.  This equates to seven hours and forty-eight minutes, plus one-hour unpaid break.

5.       On Tuesday 17th October 2023, the Complainant was rostered for a 10.00am commencement work time and a finish time of 18.48 hours. He had been provided with at least 24 hours’ notice of the start and finish time.

6.       At about 9.15 am on 17th October 2023, the complainant was contacted by the service supervisor of the Respondent, Mr John Griffin and was ordered to work a duty with a finish time of 20:50hrs being a shift of 10 hours and 50 minutes and in significant excess of the statutorily notified hours.

7.       The Complainant had not been provided with 24 hours’ notice of the change in his working schedule and was therefore permitted to refuse to work the additional hours without adverse consequences.

8.       The Complainant lawfully declined to work beyond the notified finish time and accordingly finished work at 18.48 hours.

9.       He was subsequently suspended and penalised by way of a disciplinary sanction and was subject to a final written warning and three days’ unpaid suspension contrary to the provisions of Section 17 of the OWTA.

10.   There is provision in very particular circumstances whereby the 24 hour notice requirements do not apply. These particular circumstances are set out in Section 17(4) of the OATA. 

11.   If the Respondent seeks to avail itself of the particular circumstances of  Section 17(4) of the OWTA, as to why the 24 hour notice period does not apply in the index case, the burden rests with the Respondent employer to demonstrate on the balance of probability that an event occurred which could not reasonably have been foreseen, that justified the employer in requiring the employee to work the said additional hours.

12.   For ease of reference the Complainant will rely on the Respondent exhibits and its nomenclature so as to obviate the need of duplication of exhibits. Where necessary a Complainant Schedule is referenced.

13.   In and about 2017, the Labour Court was required to make a Recommendation further to a conciliation conference under the auspices of the Workplace Relations Commission being Recommendation Number LCR21438, [ exhibit2] which was thereafter followed by A Bus Éireann review of spare driver roster arrangements by Ultan Courtney & Kevin Duffy (Assessors) dated 28th of August 2023 [the ‘Duffy Courtney Report’] [ exhibit 5]

14.   The relevant excerpts of the report that relate to the index case are reproduced herein:

1.2      As appears from the Terms of Reference, the Assessors were mandated to devise a fair and equitable rostering system which can be uniformly applied throughout the company.  It was agreed between the company and the unions that the outcome of the assessment would be final and binding on all parties.  The binding nature of what the Assessors decide is expressly provided for in the Terms of Reference.  The Terms obligated the Assessors to devise a common rostering arrangement which would apply through the company, which: -

(a) Is compliant with Labour Court Recommendation LCR 21438.

(b) Operates in a way that is fair and equitable as between all spare drivers, and;

(c)    Provides for a rotation of duties as between early, middle, and late services.”

6.11:

All rosters, howsoever arising, should comply with the twenty-four-hour notification requirement of Section 17 of the Organisation of Working Time Act, save when an unforeseeable or unforeseen event arises that may require operational flexibility and the driver consents to the change on a voluntary basis. [Underline emphasis added]

9.3:

“Where less than twenty-four hour notice of a change in start and finishing time is given, and the change is not necessitated by unforeseen or unforeseeable circumstances outside the company’s control, the individual driver may decline to accept the proposed alteration, or he or she may accept the alteration on a voluntary basis.”

15.   It was understood by the Complainant, on foot of this agreement that exists between the Respondent and its driver employees, that he has the right to decline to work where he was not been provided with 24 hours’ notice of his rostered start and finish times. 

Law

16.   The Complainant was entitled to decline any work scheduled beyond his statutorily notified rostered start and finish time, the work not being notified to him within the required 24 hours. He was accordingly lawfully required to work from his notified start time of 10am to an end time of 18.48 but not beyond that time unless he accepted the alteration of his hours [namely the additional hours from 18.48 to 20.50] on a voluntary basis.

17.   The Complainant for his own reasons was not in a position to voluntarily accept the additional hours work which said additional hours had been notified to him too late in the day whereby the late notification fell afoul of the European Union (Transparent and Predictable Working Conditions) Regulations 2022, giving effect to EU Directive 2019/1152.

18.   It falls to the Respondent to meet the test set out in Section 17(4)

The Organisation of Working Time Act 1997 (as amended)

Provision of information in relation to working time: -

(1)      If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned [that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.]

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences. (Underline Emphasis added)

(2)      If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3)      If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4)      A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times. (Underline emphasis added)

19.    Section 17 of the OWTA, as amended by reg. 13 of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022), provides that an employee shall be entitled to be notified in advance of the hours which the employer will require the employee to work, subject to unforeseen circumstances [more specifically being those circumstances which could not reasonably have been foreseen] expressly justifying a change in the notified times.

20.   The employer must demonstrate two elements to avail itself of section 17 (4)  of the OWTA. To compel the Complainant to work the additional hours on 17th October 2023, the Respondent must firstly show that an event occurred which could not reasonably have been foreseen. Regrettably, incidences of illness within the driver workforce at the Respondent Company is a reasonably foreseeable event and not otherwise. An attendance control program was introduced with guidelines expressing desire for higher attendance and the Respondent is pursuing an aggressive policy to reduce absenteeism by reason of workplace illness amongst its cohort of drivers. See articles attached in Schedule 1.

21.   If the adjudication officer is satisfied that the first limb of the test is met, i.e. that the an event occurred that could not have been reasonably foreseen, then the Respondent must thereafter demonstrate that the said event justified the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times. It is not sufficient for the Respondent to simply show that an unforeseen event occurred. It is manifestly required and intended by the Oireachtas by reason of the construction of the subsection, that the Respondent must show that the purportedly unforeseen event [specifically being an event that which could not reasonably have been foreseen] justifies the employer in requiring the employee to work additional hours. 

22.   Quite apart from the statutory impediment on the Respondent unilaterally imposing working hours on the Complainant without their consent, the Duffy Courtney report expressly states that all rosters, howsoever arising, should comply with the twenty-four-hour notification requirement of Section 17 of the Organisation of Working Time Act, save when an unforeseeable or unforeseen event arises that may require operational flexibility and the driver consents to the change on a voluntary basis. The agreement requires that where an unforeseen event arises, if additional hours are required to be worked by a driver, then that driver must consent to a change in hours on a voluntary basis. The inclusion of the word and in paragraph 6.11 of the Duffy Courtney report speaks to the requirement of consent of the employee in the context of additional hours. There is no provision to allow for the unilateral imposition of additional unscheduled hours without consent.

23.   The Complainant did not consent to the change in hours. The said report mandates that where twenty four hour notice does not occur then consent to the working of additional hours by an Employee at all material times is required.

24.   Notwithstanding the foregoing, the Complainant is entitled in any event to rely on S.I. 686/2022 by virtue of the following provision: -

“1(a)  When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and date predetermined by the employer in accordance with that subsection without adverse consequences.”

25.   The artificially narrow interpretation of the section as promoted by the Respondent does not apply. The Oireachtas clearly enacted this very section to guard against the Penalisation of any employee such as has befallen the Complainant in the index case. Any interpretation of the domestic legislation has to be consistent with the EU Directive and in particular Article 10 (2) thereof.

26.   The EU Directive has primacy over the national legislation whereby Article 10 affords the Complainant necessary protection where he has a simple right to refuse an assignment.

27.    The Respondent has not complied with its obligations to provide 24 hours’ notice of the start and end time of the additional hours so accordingly the Complainant has the statutory right as enshrined in Section 17 1(a) to refuse to work during the additional hours, where notice was not effected within 24 hours, without any adverse consequences.

28.    The Labour Court considers that the underlying rationale of subs.(1) is “perfectly clear”.  In   Lucey Transport Ltd v Serenas DWT 141/2013, the Labour Court said:

“It is directed as making a sensible distinction between situations in which an employee has a fixed starting and finishing times around which he or she can plan their private or family life and those who cannot do so due to the unpredictability of their work commitments. Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obliged to start or finish work at any other time as any variation from the contractual hours can only be by mutual agreement. Where, however, an employee's starting and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work/life balance reasonable notice of starting and finishing times must be furnished by the employer.”

29.   Similarly in Musgrave Ltd v Vasilijevs DWT 25/2018, the Labour Court said:

“The Court finds that a worker is entitled to 24 hours' notice of their start and finish times so as to enable them to reconcile their work/life commitments. A failure to provide such notice causes considerable inconvenience for workers who have other plans and commitments in their lives and undermines their capacity to function as full human beings in society.”

30.   As relates to the Labour Courts consideration of reasonable foreseeability, in Scally v Lynch and Kelly DWT 102/2013, the claimants gave evidence that they were requested to work overtime, and received little or no notice, in circumstances which included the arrival of a large number of customers following a football match or a concert. The Labour Court did not accept that the occurrence of exceptional demand on the business due to a match or concert was an unforeseeable event as contemplated by this section. Also, in Trinity Lodge Ltd v Catarama DWT 74/2014, the Labour Court found that the claimant receptionist regularly had to stay late to accommodate late guest arrivals and that her finishing times consistently exceeded her rostered times. The employer sought to rely on subs. (4) but the Court said that the language of the subsection indicated that “it is directed at a situation in which the requisite starting or finishing times are given and some unforeseen event intervenes”. The Court was satisfied that the frequency with which late guest arrivals occurred meant that they could not come within the meaning of “unforeseen”.

31.   The Complainant seeks compensation consistent with the rationale the Labour Court has formulated in Dublin Bus v Kucinski DWT 39/2022 such that, in determining what compensation is just and equitable where a breach has occurred, the EU principles of “effectiveness, deterrence and proportionality” must be applied. This is consistent with Public Transport Operator v A Worker DWT 9/2017, where a worker was awarded compensation recognising the multiple breaches of the section.

32.   The relevant caselaw is attached in the schedule provided in Schedule 2.

Conclusion

20.   It is a matter of fact that employees who do not enjoy fixed starting and finishing hours are entitled to twenty-four-hour advance notice of such by virtue of Section 17 of the Organisation of Working Time Act, 1997.

21.   The Complainant, not having fixed starting and finishing times, was given a start and finish time on Tuesday 17th of October 2023 consistent with the provisions of Section 17 of the Organisation of Working Time Act, 1997, and the Transparent and Predictable Working Conditions Regulations, namely 10.00 hours to 18.48 hours inclusive of one hour’s unpaid break.  Subsequently, the Respondent and its servants and agents, attempted to alter his finish time without agreement and contrary to legislation and agreement and the EU Directive [which has primacy over the national law].  He was unlawfully suspended for simply invoking is statutory rights.

22.   Any driver who has been rostered for duties with an overtime element built in and for which at least twenty-four-hour notice has been provided, are duty bound to complete the duty as assigned.  This is not in dispute.  Working any additional hours in this scenario (in excess of 7.48) is reasonable, as the required notice has been provided. 

23.   It is however unreasonable and unlawful to order a driver to complete a shift which ordinarily may begin later, sometimes hours later, after having commenced or about to commence their lawfully notified start time, requiring the driver to finish well beyond the designated finishing time that has been provided to the driver [as are the facts in the index case] particularly in circumstances where the event of additional hours is reasonably foreseeable.

1.              The Complainant (“Mr Thompson”) is a bus driver who has been employed by the respondent (“Bus Éireann”) since 2005. On 17 May 2020, Mr Thompson joined the “spare driver” panel in Tralee. “Spare” drivers are attached to the roster at each depot to cover annual leave and absences of the “marked-in” driver complement at that depot.  Approximately 80% of the roster at each location is “marked-in” and 20% of the roster is “spare”; drivers apply to go onto the spare roster when vacancies arise and are allocated positions on that roster based on seniority.   Within the spare roster at each depot, a proportion of “spare” shifts will be “standby spare” shifts, where the spare drivers are rostered to attend work at a scheduled standby start time on their turn of duty (either “early” (up to 10am), “middle” (10am to 2pm) or “late” (2pm onwards).  If all the marked in drivers attend work, the standby spare driver is not allocated driving duties (but still receives an average day’s pay – 7 hours 48 minutes). If a marked in driver is unexpectedly absent (e.g. due to short term/ad-hoc illness or other unforeseen event), the “standby spare” driver is allocated the shift assigned to that “marked in” driver to avoid service delivery impact.

2.              Copies of Mr Thompson’s WRC complaint form and related correspondence are contained at Appendix 1.

3.               “Spare driver” rostering arrangements have been well established in Bus Éireann for more than 50 years. They were the subject of a 2017 Labour Court Recommendation which was accepted by all parties (LCR 21438) and which speaks clearly to the need for flexibility given the nature of the respondent’s business. The spare driver rostering arrangements were recently clarified in the context of a binding report prepared by independent assessors Ultan Courtney and Kevin Duffy dated 28 August 2023 (the “Duffy Courtney Report”).

4.              On 17 October 2023, Mr Thompson was rostered to perform a middle standby spare duty, and arrived at a 10am standby start time. An unexpected sickness absence arose that morning. Consistent with the operation of standby spare driver arrangements for the previous three years of Mr Thompson’s appointment to the panel (and for the many years in which spare driver operations have been in place), his supervisor requested him to cover the shift of the driver who had unexpectedly called in sick.  Mr Thomspon refused to complete the duties assigned to him and was sanctioned for this refusal to work. This sanction is under internal appeal to the Bus Éireann Disciplinary Appeals Board, and the proportionality or otherwise of this sanction is not before the Workplace Relations Commission.

5.              To succeed in his claim, Mr Thompson must show that the requirements of Section 17(1) (having regard to the provisions of Section 17(4)) of the Organisation of Working Time Act 1997 (the “1997 Act”) have not been met and that his refusal to complete the driving duty assigned to him was permitted by reason of Section 17(1A) of the 1997 Act. He cannot show this. 

6.              Mr Thompson had more than 24 hours’ notice of the start time of his turn of duty. The Workplace Relations Commission has recognised that the very nature of standby duties is that it is not possible to provide 24 hours’ notice of the actual start time of the driving duties in the case of an unforeseen absence such as sickness absence and that a breach of the 1997 Act does not arise in such circumstances. Insofar as it is asserted that the position has changed due to the implementation of new legislation, this is fully denied: in effect, it appears to be the case that the Complainant is asking an Adjudication Officer to disregard the plain wording of the 1997 Act. A finding of the kind being urged by Mr Thompson would be without legal basis and would have significant implications for the commercial operations of Bus Éireann, going far beyond Mr Thompson’s case. The claim should be dismissed.

BACKGROUND

7.              Spare Driver Rostering Arrangements have been in place in Bus Éireann for more than 50 years and Bus Éireann has an established system for engagement concerning rostering arrangements, which was the subject of LCR 21438 and a copy of same is contained at Appendix 2.

8.              LCR 21438 addresses spare driver work as follows:

Spare Driver Work and Efficiencies

A single panel of spare drivers will exist. All spare drivers will be ‘spare to be rostered’ in a fair and equitable way and operate all duties as assigned. A minimum 39 hour week will apply to spare drivers.

Spare drivers 5 over 7 rotations will apply with a mix of early, middle and late weeks, i.e. all spare drivers will share equal amount of duty start times.

9.              Mr Thompson is an NBRU member that has worked in the Tralee depot since 2005. Prior to taking up continuous appointment on 8 May 2005 (which began as a seasonal driver appointment but resulted in his being retained on 13 November 2005), he was initially employed on separate occasions as a seasonal driver (9 June 2003 – 21 September 2003, 4 June 2004 to 5 February 2005). A copy of his contractual documentation is enclosed at Appendix 3. Mr Thompson joined the spare panel in Tralee on 17 May 2020.

10.           In October 2021, Bus Éireann, in the course of engagement with the two unions representing the driver cohort, NBRU and SIPTU, advised them that it desired to come to a consistent “spare rostering” position across the country as the means to implement a fair and equitable system (provided in LCR 21438) and avoid industrial relations issues arising on an all too frequent basis then. The company provided the unions with a proposal document then, which could form the basis for discussion.

11.           Following a series of local meetings with the two unions in October/November 2021, which included the company facilitating the unions on two days to meet amongst themselves, no proposals were forthcoming from the unions in response to the company’s proposal document and the matter was referred to the WRC.  A formal WRC conciliation conference occurred on 14th February 2022, under the auspices of Aoibheann Ní Shúilleabháin, where it was agreed that two independent assessors would conduct a comprehensive review, and deliver a report which would set out the optimum spare driver arrangements to apply, consistent with the principles of LCR 21438, and which all parties agreed would be binding. Kevin Duffy and Ultan Courtney were appointed as the assessors and conducted an extensive assessment which is documented in their ultimate report. The terms of reference of the assessment are contained at Appendix 4. The final report issued on 28 August 2023, and a copy of same is contained at Appendix 5.

12.           The implementation of the roster allocation arrangements recommended under the Duffy Courtney Report was the subject of unofficial action at Limerick on 1st and 2nd October 2023, but for the vast majority of “spare” drivers, the arrangements have been implemented without difficulty. Some complaints were raised and discussions have been ongoing with the NBRU concerning same. Copies of relevant correspondence exchanged between the NBRU and Bus Eireann are contained at Appendix 6.

Spare Driver Rostering Arrangement

13.           Depending on the particular circumstances applicable, any given shift assigned to a spare driver within Bus Éireann may, broadly speaking, proceed in one of the following three ways:

(i)    The driver is assigned to cover an absence which is scheduled, expected and/or in respect of which Bus Éireann has been provided with advance notice. In such cases, the spare driver is informed (ordinarily with 72 hours’ notice) of the driving duties assigned to him or her, including the expected start / finish time.

(ii)   The driver is allocated as a “spare driver on standby”, and 72 hours’ notice will be provided of their expected shift start and end time, based on a total shift duration of 8 hours 48 minutes (including one hour unpaid lunch break). In such cases two possible eventualities arise:

a.              The driver remains on standby at the depot without having any driving duty assigned to him/her. In such cases, the driver will be required to remain at work for 8 hours 48 minutes (including one hour unpaid lunch break) and will be paid for 7 hours 48 minutes, which is an average day’s pay (5 day/39 hour week minimum). 

b.             As a consequence of an unexpected absence, the driver is assigned a driving duty within their turn or duty. In such cases, it may be necessary for the driver to work beyond the notified finish time (i.e. they may be required to work longer than the 8 hours 48 minutes applicable in cases where no driving work is assigned to them). In such cases, the driver will be paid for all time worked.

14.           The above reflects the position as it relates to all spare drivers. This arrangement is well known to Mr Thompson and has applied throughout his time as a spare driver. On those occasions in the past when Mr Thompson was assigned a driving duty by reason of an unforeseen absence (as referred to at paragraph 12 (ii) b. above) he carried out those duties without issue or objection. 

The Events of 17 October 2023

15.           On 17 October 2023, Mr Thompson was rostered for a standby spare shift starting at 10:00. As a driver called in sick, Mr Thompson was allocated a duty that ran from 10:40 – 20:50. Mr Thompson started the duty but later called the Tralee depot to inform the company that he would not work this duty as it took him beyond an 8.48 “spread”. i.e. 8:48 hours after the start of his spare duty. Bus Éireann had no drivers to cover the shift and had to hire a private contractor, at considerable additional cost to avoid customers being stranded.

16.           It is not disputed that Mr Thompson was suspended and ultimately received a sanction for his failure to attend work for which he was rostered. The internal appeal is currently on hold pending the decision of the WRC. Copies of the documents relating to that disciplinary process, including correspondence exchanged between the NBRU and Bus Eireann, are contained at Appendix 7.

17.           The argument advanced by the NBRU on Mr Thompson’s behalf in correspondence is that Mr Thompson was entitled to refuse to do the do the full length of the duty because this is his statutory entitlements under the 1997 Act, as amended by the Transparent and Predictable Working Conditions Regulations 2022 (the “2022Regulations”). This is partially based on an incorrect assertion that the “end time” of any shift is 8:48 hours after the start of the turn of the spare duty of a driver. This has never been the case: the significance of the 8:48 reference is that this is an average day, and the minimum working time that a driver will be rostered for, i.e. in circumstances where the driver is not allocated work. The time of 8:48 is inserted into the roster as a notional shift pattern but it has always been the case that in circumstances where the driver is allocated work – as happened in Mr Thompson’s case – the driver would work (and be paid) until the end of the duty that they picked up, i.e. until 20:50 in Mr Thompson’s case.

18.           The contention of Mr Thompson and the union in the context of the 1997 Act appears to be that because standby spare drivers receive less than 24 hours’ notice of the actual shift for which they are rostered, they are allowed to refuse to take on a duty assigned to them during their shift, and not be penalised for same. It is respectfully submitted that this position represents a mis-statement of the provisions of Section 17 of the 1997 Act.

19.           Bus Éireann’s position is that drivers have more than 24 hours’ notice of the start time of their shift, and by the very nature of standby duties it is not possible to provide 24 hours’ notice of the actual start time of the duty, because the use of standby spares only arises in unexpected emergencies – to require a 24 hour start time for a spare driver would effectively render the system unworkable and it is not required under Irish law. Indeed, given the nature of the respondent’s business, any restriction imposed would impact all drivers in the company given the very fact that on any given day traffic conditions, roadworks, delays and vehicle collisions can all contribute to any driver finishing work outside a defined finish time.  For this reason the contract of employment clearly provides that a reasonable amount of overtime would be worked and all collective agreements clearly provide that drivers would complete all duties as assigned.  It is for this reason also that LCR 21438 provides that spare drivers would work “a minimum 39 hours” – this clearly intended to provide for the flexibility needed to meet service demands on any given day of the week. 

THE LAW

20.           Section 17(1) of the 1997 Act (as amended by the 2022 Regulations) provides as follows:

If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, [that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days]

21.           Therefore, to have met the requirements of section 17(1), an employer must either:

(a) Specify the normal or regular starting and finishing times of work of an employee in a contract of employment (in which case, section 17 does not apply); or

(b) Provide the employee with at least 24 hours’ notice of the times that they will “normally” be required to start and finish work on each day, and ensure that the work takes place within “predetermined reference hours and days.”

22.           Section 17(4) of the 1997 Act envisages particular circumstances where the notice requirements under section 17(1) do not apply. Section 17(4) expressly provides as follows:

A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

23.           Copies of the relevant legislative provisions were presented at the hearing.

24.           The application of Section 17(4) of the 1997 Act in the context of Bus Éireann’s standby spare arrangement was expressly considered by the Workplace Relations Commission in (ADJ-00016641, ADJ-00016643, ADJ-00016653, ADJ-00016661, ADJ-00016663, ADJ-00016672) copies of which are available. It was found that Bus Éireann’s standby spare arrangements were compliant with the 1997 Act. Specifically, it was found that Bus Eireann’s actions in requiring a standby spare driver to work additional hours (over and above those notified to them in accordance with subsection (1) of Section 17) were permitted by reason of section 17(4) of the 1997 Act. 

25.           In Matrix Foods Ltd v Klimenkovs (DWT0931),a 2014 case , a copy of which is contained at Appendix 10, the Labour Court was requested to consider the application of section 17 in the context of a bus driver who asserted that his former employer had failed to provide him with adequate notice of additional hours he was required to work (by reason of the fact that a colleague had called in sick). While it appears not to have been in dispute that the employee in question was required to work additional hours (in respect of which at least 24 hours’ notice was not provided) the Labour Court rejected the contention that the employer had acted in breach of section 17(1) of the 1997. The Labour Court stated as follows:

“Having examined the written and oral submissions of both parties and the additional documentation requested by the Court from the employer the Court is satisfied that the worker was provided with a roster before the commencement of each week setting out his hours of work for the following week. The employer told the Court that the worker was expected to work the rostered hours and any additional hours worked were due to unforeseen circumstances beyond the employer’s control, e.g. a driver not reporting for work. The Court is satisfied that the notification of additional hours in such circumstances comes within the definition of Section 17 (4):

“A notification to an employee… shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work, or as the case may be, to work the said additional hours at those times.”

Accordingly, the Court finds that the Respondent did not breach Section 17 of the Act.

The 2022 Regulations

26.           The European Union (Transparent and Predictable Working Conditions) Regulations 2022 (the “2022 Regulations”) made a number of amendments to the provisions of section 17 of the 1997 Act. Most notably, the 2022 Regulations provided for the insertion of a new provision at section 17(1A) of the 1997 Act, which conferred on employees a right to refuse to work in the event of an employer failing to comply with the notice requirement under section 17(1). That new subsection states as follows:

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.

27.           As is clear from a plain reading of the above, the right of refusal conferred on employees by virtue of section 17(1A) is limited in nature. Firstly, it will only apply where the provisions of section 17(1) have not been met by the employer. Secondly, an employee will be entitled to refuse to work “during the reference hours and days predetermined by the employer in accordance” with subsection (1). It is clear, therefore, that this right of refusal provision applies only to situations where an employee has been given less than 24 hours’ notice of their specific shift and that, in such cases, the employee may refuse to work during those hours (in respect of which there were less than 24 hours’ notice).

28.           Plainly, the right of refusal provided for in section 17(1A) does not apply to situations where an employee is required, by reason of unforeseen circumstances (as contemplated by section 17(4)) to start or finish work at times other than those notified to them in accordance with section 17(1).

29.           It appears to be the union’s position that the introduction of this limited right of refusal at section 17(1A) in some way negates or renders redundant the clear provisions of section 17(4). This is not (and, respectfully, cannot possibly be) the case.

30.           When drafting the 2022 Regulations and legislating for the amendment of the 1997 Act, no attempt was made to remove the exemption provision in section 17(4). It must be assumed that it was the intention of the executive to leave intact this exemption which had been provided for by the Oireachtas in the 1997 Act.

31.           It is an established principle of statutory interpretation that it will be assumed that the legislature would not intend any word or provision of legislation to be rendered redundant or meaningless and that legislation should be interpreted accordingly. This principle was alluded to by the Supreme Court in Cork County Council v Whillock in which O’Flaherty J. stated:

“… a construction which would leave without effect any part of the language of a statute will normally be rejected.”

32.           It is submitted therefore that the notice requirements under s17(1) and the right of refusal under s17(1A) must be read in a manner consistent with the provisions of the right of an employer to require an employee to work additional hours in certain genuinely unforeseen circumstances (as provided for under s17(4)). It is therefore submitted that the right of refusal provision under s17(1A) does not apply in the case where an employee is required, by virtue of reasonably unforeseen circumstances, to work hours outside of those specified in the notice provided under s17(1).

33.           Furthermore, taking Mr Thompson’s claim at its height, and notwithstanding that Bus Éireann does not accept that Mr Thompson was rostered for an 8:48 shift, it is noted that Section 17(1)(A) only permits an employee to have the right to refuse to work during the reference hours and days predetermined by the employer. On Mr Thompson’s own account, this did not occur. Mr Thompson worked the reference hours and days which he asserts were predetermined by Bus Éireann, i.e., 8:48 hours. He refused to work the additional hours. Section 17(1)(A) does not provide any entitlement to refuse to work additional hours.

34.           As Mr Thompson cannot show that Section 17 is applicable to his case, the claim should be dismissed.

I have considered both the oral evidence provided at hearing and also the comprehensive written submissions submitted by both parties.

In relation to the events of 17th October 2023 there is very little or any difference between the parties as to what happened on 17th October 2023. By way of submission the Complainant has summarised the events as follows:

·       On Tuesday 17th October 2023, the Complainant was rostered for a 10.00am commencement work time and a finish time of 18.48 hours. He had been provided with at least 24 hours’ notice of the start and finish time.

·       At about 9.15 am on 17th October 2023, the complainant was contacted by the service supervisor of the Respondent, Mr John Griffin and was ordered to work a duty with a finish time of 20:50hrs being a shift of 10 hours and 50 minutes and in significant excess of the statutorily notified hours.

·       The Complainant had not been provided with 24 hours’ notice of the change in his working schedule and was therefore permitted to refuse to work the additional hours without adverse consequences.

·       The Complainant lawfully declined to work beyond the notified finish time and accordingly finished work at 18.48 hours.

·       He was subsequently suspended and penalised by way of a disciplinary sanction and was subject to a final written warning and three days’ unpaid suspension contrary to the provisions of Section 17 of the OWTA.

I note that the Spare Driver Arrangement is as outlined in the Respondent written submission:

Depending on the particular circumstances applicable, any given shift assigned to a spare driver within Bus Éireann may, broadly speaking, proceed in one of the following three ways:

(iii) The driver is assigned to cover an absence which is scheduled, expected and/or in respect of which Bus Éireannhas been provided with advance notice. In such cases, the spare driver is informed (ordinarily with 72 hours’ notice) of the driving duties assigned to him or her, including the expected start / finish time.

(iv)  The driver is allocated as a “spare driver on standby”, and 72 hours’ notice will be provided of their expected shift start and end time, based on a total shift duration of 8 hours 48 minutes (including one hour unpaid lunch break). In such cases two possible eventualities arise:

a.             The driver remains on standby at the depot without having any driving duty assigned to him/her. In such cases, the driver will be required to remain at work for 8 hours 48 minutes (including one hour unpaid lunch break) and will be paid for 7 hours 48 minutes, which is an average day’s pay (5 day/39 hour week minimum). 

b.             As a consequence of an unexpected absence, the driver is assigned a driving duty within their turn or duty. In such cases, it may be necessary for the driver to work beyond the notified finish time (i.e. they may be required to work longer than the 8 hours 48 minutes applicable in cases where no driving work is assigned to them). In such cases, the driver will be paid for all time worked.

The above reflects the position as it relates to all spare drivers. This arrangement is well known to Mr Thompson and has applied throughout his time as a spare driver. On those occasions in the past when Mr Thompson was assigned a driving duty by reason of an unforeseen absence, he carried out those duties without issue or objection.

Why did the Complainant object on this occasion? Was he influenced by another person or body?

The law on this matter is found at section 17 of the Organisation of Working Time Act 1997. On reading this enactment I believe it all comes down to how one defines the word ‘foreseen’.

17. – (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.

17. – (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

In oral evidence given by Mr. David Lane, Head of Operations at Bus Éireann we heard that in 2022 absenteeism rates within the organisation were running at 12% and that through actions taken by management were currently running at 8.5%. These figures are extremely high and by no stretch of the imagination could they or should they be considered foreseeable.

Any breaches of section 17(1) of the Act in situations such as this are permitted by section 17(4), and I conclude that within the set of circumstances as presented by the Respondent there are no breaches of the Act. The complaint as presented is not well found.

Any breaches of section 17(1) of the Act in situations such as this are permitted by section 17(4), and I conclude that within the set of circumstances as presented by the Respondent there are no breaches of the Act. The complaint as presented is not well found.

Organisation of Working Time Act, 1997; section 17 Organisation of Working Time Act 1997.