A recent decision from the Workplace Relations Commission (WRC) highlights the distinction between working time and being on call.
Facts
The claimant commenced employment in September 2005 as a retained firefighter with the local Council. His contract required him to live a "reasonable distance" from the station. "Reasonable distance" was defined in the candidate's information letter as a " turnout time" of 5 minutes. He was also required to be available on a twenty- four hour daily basis (excluding periods of annual leave) and attend 100 hours of training per annum.
Claimant's arguments
The claimant argued that while he is "on call" he is, as a matter of fact, engaged in working time.
The claimant relied on the CJEU case of Ville de Nivelles v Rudy Matzak (Matzak) (Case C518/15) to support his argument. Matzak concerned a volunteer firefighter who was predominantly on standby or called in with a turnaround time of 8 minutes and had to be physically present in the place determined by his employer. The CJEU found that the obligation to remain physically present at the place the employer determined and the geographical and temporal limitations resulting from the need to reach his place of work within eight minutes objectively limited the opportunities that a worker in his circumstances had for his personal interests.
Applying the rationale that a worker who is required to physically turn out in 5-8 minutes imposes a significant restriction on his ability to engage in other social and personal opportunities, by follow on, must constitute working time. Consequently, the claimant alleged that the respondent is in breach of numerous provisions of the Organisation of the Working Time Act 1997.
Respondent's arguments
The respondent's position is that the Matzak case can be distinguished as the firefighter in that case was a volunteer and didn’t receive remuneration. The claimant here was a retained firefighter which the respondent submits is a fundamental difference who was also free to engage in other employment. The respondent relied on the CJEU cases of SIMAP and Jaeger which distinguished the concept of working time and on call time. It argued that there was a key difference between being required to be available for work and actually carrying out contractual duties. There is no obligation on the claimant to carry out his contractual duties in the period in which the retainer applies unless alerted to do so. Once he is alerted and attends the fire station it is accepted that this period of time will be considered as carrying out his contractual duties and accordingly comprise working hours. The respondent submitted that a key defining feature of an employment relationship is " that for a certain period of time a person performs a service for and under the direction of another person in return for which he receives remuneration." According to the respondent aside from contracted hours once alerted to an incident the relationship between the claimant and the respondent is one exercised by free choice and an absence of control. Another criterion often cited as indicative of an employment relationship is mutuality of obligation between an employer and an employee. The respondent submitted this can only exist on a singular basis and accordingly where they have accepted that the claimant can have a separate mutual obligation to another employer that of itself cannot constitute working time with themselves. The respondent summed up the contractual position as one where the firefighter is retained to be available however the payment of this retainer doesn’t preclude a firefighter from taking up other employment. Retained firefighters have a discretion not to attend up to 30% of calls.
Decision
The WRC rejected the claimant's main argument – that the on call time of a retained firefighter must be considered working time and distinguished the Matzak case as the claimant here was not so restricted. The claimant was not physically required to be present at the fire station. The WRC also rejected the claimant's arguments on the grounds of mutability of obligation. There was no absolute requirement for the claimant to attend all call outs. Also the claimant did not have to be available at all times. The WRC concluded that the claimant is on a contract to be available and is not in continuous employment. Accordingly, in this situation those "on call" periods cannot be classified as "working time". It went as far as to say that for the claimant to say they worked 24 hours a day, 7 days a week, 52 weeks a year, was absurd and that "no legislation was ever enacted to bring about an absurdity".
Takeaway
The case serves as a useful reminder of the distinction between working time and time spent on call. One of the determining factors is the extent to which an employee is restricted in their activities while on call, with the greater the restriction, the more likely it is to point towards working time for the purposes of the Organisation of Working Time legislation.
For more information, please contact Sandra Masterson Power, Sinead Grace or your usual contact in Beauchamps.