ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058814
Parties:
| Complainant | Respondent |
Parties | Alan Stal | Last Passive Limited |
Representatives | Represented himself | Did not attend the hearing |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994. | CA-00071553-001 | 13/05/2025 |
Date of Adjudication Hearing: 29/10/2025
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, this complaint was assigned to me by the Director General. I conducted a hearing on October 29th 2025 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant, Mr Alan Stal represented himself. No one attended to represent his employer, Last Passive Limited, trading as Aircoach. While the parties are named in this Decision, I will refer to Mr Stal as “the complainant” and to Last Passive Limited as “the respondent.”
This complaint was submitted to the WRC on an e-complaint form on May 13th 2025. The respondent’s head of operations was notified by post on the same day. On August 28th, the respondent was notified that the hearing would take place on October 29th at 10.00am. Neither letter was returned undelivered. At the hearing, the complainant informed me that he had a meeting with a supervisor on Thursday, October 23rd at which he discussed some aspects of his complaint. He said that he told the supervisor that he would wait for the outcome of the hearing at the WRC on October 29th. I am satisfied that the respondent’s managers were informed that the hearing was scheduled for October 29th. As there was no explanation for not attending, I proceeded with the hearing and I have reached the conclusion below based on the evidence of the complainant.
This complaint was submitted as a breach of the Terms of Employment (Information) Act 1994. However, on the narrative of the form, the complainant said that his complaint was about “annual leave while on rest day.” In a one-page document submitted with his complaint form, he clearly set out that his complaint was about how his annual leave was calculated.
In a submission dated October 10th 2025, the complainant included a copy of his contract of employment and a copy of an operations update from the internal communications manager dated March 25th 2025. This update was about how pay for public holidays is calculated. Also included was a copy of an email dated April 11th 2025 from the complainant to a manager regarding his disagreement about how pay for working on public holidays is calculated.
The WRC complaint form is not a statutory form, and I am satisfied that, on the e-complaint form and in the submission he sent to the WRC, both of which were copied to the respondent, the complainant clearly set out his intention to submit a complaint about holiday pay and public holiday pay. Taking guidance from the decision of the High Court in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370, I have decided to amend the complaint form and to consider this complaint under section 27 of the Organisation of Working Time Act 1997. I am satisfied that the complainant’s case was outlined in advance of the hearing and that the amendment of the legislation does not fundamentally alter the nature of the complaint.
Summary of Complainant’s Case:
The complainant is a bus driver and he is currently assigned to the Dublin Airport - Cork route. He works a five-week rolling roster and his working week starts on a Sunday. He provided a copy of his roster in advance of hearing and it shows the following: Week 1: Five working days and two rest days; Week 2: Four working days and three rest days; Week 3: Three working days and four rest days; Week 4: Five working days and two rest days; Week 5: Five working days and two rest days. At the opening of the hearing, the complainant informed me that his complaint about how his annual leave is calculated has been resolved to his satisfaction. The issue that remains for investigation is a complaint about the calculation of public holiday pay when the complainant works on a public holiday. He claims that he is entitled to double pay for working on a public holiday. The complainant referred to an explanation on public holiday pay issued in the form of an “Operations Update” on March 25th 2025. The update states that public holiday pay is “not double pay as some employees have thought. It’s paid on an average of the last 13 weeks.” In the update, the internal communications manager provided a link to Statutory Instrument 475 of 1997, concerning the Determination of Pay for Holidays (SI 475/1997). At the hearing, the complainant had a copy of his payslip showing the hours of work for which he was paid in a particular week. He is paid weekly in arrears, for the hours that he works in the week before the pay week. The complainant works between three and five days each week and he is not paid for rest days. His daily hours may vary due to the time it takes to complete a route. For these two reasons, his pay varies from week to week. |
Findings and Conclusions:
Regulation 3 of SI 475/1997 provides direction to employers concerning pay for annual leave. This is relevant to the complainant’s circumstances because it refers to a distinction between a fixed rate of pay that does not vary from week to week and wages which may vary in relation to the work done (see the underlined section below): (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation. (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs. (3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over - (a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs, Subsection (b) is not relevant to the complainant’s case. The complainant’s pay is calculated by reference to a fixed rate, but the amount he is paid varies from week to week, “in relation to the work done.” Regulation 5 of SI 475/1997 provides direction to employers concerning pay for public holidays: (1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then - (a) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday, (b) in any other case, the relevant rate in respect of that public holiday shall be the sum that is equal to the average Daily pay (excluding any pay for overtime) of the employee calculated over - (i) the period of 13 weeks ending immediately before that public holiday[.] The remainder of this section is not relevant to the complainant’s case. Because the complainant’s weekly rate of pay varies from week to week depending on when he finished his shift, his pay for public holidays must be calculated in accordance with Regulation 5 subsection (1)(b)(i) above. Consequently, for a public holiday, he is entitled to be paid for the hours that he works on the day, plus an average of a day’s pay based on his average daily rate over the previous 13 weeks. For most employees, and particularly for someone whose first language is not English, this section of the Organisation of Working Time Act is not easy to understand. However, I am satisfied that he is entitled to pay for public holidays based on the 13 week average approach set out above. It seems to me that, with some patient communication on the part of the respondent’s managers, this could have been clarified without the inconvenience of having to attend a hearing at the WRC. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I am satisfied that the respondent has calculated the complainant’s entitlement to pay for a public holiday correctly and in accordance with SI 475/1997. I find therefore, that his complaint is not well founded. |
Dated: 10-11-25
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Pay for public holidays, pay that varies in relation to the work done. |