The High Court has dismissed an appeal by a retained firefighter who argued that his standby periods should count as working time. Mr Justice Barr held that the Labour Court had considered the restrictions on his time and applied the correct legal test. The court did not set aside the Labour Court’s decision.
David Walsh, based at Ballybunion Fire Station in County Kerry, appealed on a point of law against a Labour Court determination that his standby time was not working time under the Organisation of Working Time Act 1997 or the EU Working Time Directive. He had worked part-time as a retained firefighter since August 2008.
Walsh’s contract required him to be available for callouts around the clock, except during approved leave. He had to be able to reach the station within ten minutes and normally live and work within a reasonable distance. He also needed permission to leave the Ballybunion area. His submissions said he attended more than 90% of alerts, despite a stated minimum attendance threshold of 75%.
The Labour Court had found that Walsh could pursue other activities during standby, including running a bed and breakfast and organising golf tours. It noted an average of 52 calls a year to the station, with calls lasting an average of two hours and 20 minutes, and that Walsh attended about 84 hours of incidents annually. It concluded that the constraints did not significantly prevent him from managing his time or pursuing his interests.
On appeal, Walsh argued that the Labour Court had not assessed the cumulative effect of the restrictions, including the response time and his high attendance rate. Kerry County Council argued that the Labour Court had considered the relevant circumstances and that its factual findings could not be disturbed on a point-of-law appeal without the required legal basis.
Mr Justice Barr found no error of law. He said the Labour Court had considered the ten-minute response requirement, limits on leaving the area, the alert device’s range, the attendance threshold, and the frequency and duration of callouts. The court held that the constraints were not such as to affect “objectively and very significantly” Walsh’s ability to manage his standby time.
The High Court also rejected an argument that the Labour Court had misunderstood the CJEU’s Matzak decision, which involved a firefighter required to remain at home while on standby. A separate argument concerning the State’s implementation of the Directive and civil protection service exemptions was not determined on its merits: the Labour Court had not decided it, and the High Court said it should not decide a point absent from the original decision.
The judgment directs the parties to file submissions on the terms of the final order and costs within four weeks. The matter was listed for mention on 19 January 2024. The judgment says the final order shall dismiss the appeal against the Labour Court decision dated 8 November 2022; its earlier account identifies that decision as dated 8 December 2022.