A Labour Court finding that a part-time Kerry fireman cannot be considered to be working when he is on standby for callouts for a fire or other alert has been upheld by the High Court.
David Walsh, a retained firefighter since 2008 with Ballybunion Fire Station and who also runs a B&B in Ballybunion with his partner, had brought a Labour Court claim in which he submitted he was on call 168 hours a week, 52 weeks of the year, and had to turn up at the station within 10 minutes of a callout.
The Labour Court, in November 2022, found that time spent on standby was not "working time" for the purpose of the Organisation of Working Time Act 1997 and EU Working Time directive.
It said Mr Walsh was obliged to attend callouts averaging 1.7 hours or week, or 84 hours per annum.
He was not obliged to participate in all callouts, but there was a 75 per cent minimum attendance requirement, it said. The requirements placed on him did not "place him under major constraints and have a very significant impact on the management of his time", it said.
He was able to pursue other activities for a significant portion of his standby periods, including running his own business.
Mr Walsh's case then came before the High Court as an appeal on a point of law from a determination of the Labour Court. Kerry Co Council, which operates the fire service, was the respondent and opposed Mr Walsh's case.
Mr Walsh's counsel Conor Power SC argued the Labour Court had looked at some factors including that his client had to respond to an alert within ten minutes and that did not have to remain at any specific place during time spent on standby.
However, the Labour Court had erred in law in failing to take into account the overall impact of all the restrictions on him in determining that the time spent on standby was not working time, counsel argued.
Mairéad McKenna SC, for the council, said the High Court could only interfere with primary findings of fact made by the Labour Court if it was satisfied that there was no evidence to support them.
In this case, nearly all the findings of fact made by the Labour Court, had been agreed, or had not been seriously controverted, she said.
Therefore, there was no basis for the High Court to set aside any of the primary findings of fact made by the Labour Court, or the inferences drawn by it, she argued.
Mr Justice Anthony Barr dismissed the appeal.
He said the Labour Court had regard to relevant factors which could be deemed to be constraints on Mr Walsh's ability to carry out activities while on call.
It was entitled to reach the conclusion that the constraints on him were not such as to “objectively and very significantly” affect him freely managing his time and pursuing his business and social interests during his periods on standby., he said.
He was satisfied there is no basis on which to set aside the decision of the Labour Court as having been reached through an error of law.
