Complainant

Respondent

Parties

Noel  Kelly

Go Ahead Transport Services Dublin Limited

Representatives

 Stratis Consulting

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00072290-001

10/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00072290-002

10/06/2025

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

CA-00072290-003

10/06/2025

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

CA-00074935-001

28/08/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00074935-002

28/08/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00079204-001

23/12/2025

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

CA-00079204-002

23/12/2025

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

CA-00082033-001

20/03/2026

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00082645-001

05/04/2026

The complainant gave evidence on affirmation.

He was unclear about which particular episodes several of his complaints related to and these are eventually agreement was reached on which was which and they are summarised below in the Decision.

He referred to a previous WRC Decision in which he had been given an award for the failure of the respondent to pay holiday pay in advance.

He also stated that he was entitled to a refund of training deductions as his failure to comply with the qualifying company policy in that regard, which he accepted, was attributable to its keeping him on sick leave. He said that he was owed €1140. In that regard he relied on a Decision of the WRC, ADJ-00051123.

In relation to his complaint of constructive dismissal he stated that he had made a protected disclosure regarding alleged defects on company vehicles and that he had brought these to the attention of the HR department.

He was also subjected to three disciplinary hearings, which resulted in warnings.

He confirmed that he gained employment on the day he resigned from the respondent (October 6th, 2025) and that he had applied for that position in August or September.

He also confirmed that he had not submitted any grievance that would have put the respondent on notice of his intention to resign. He had no interaction or engagement with the respondent after a letter setting out a proposed Disciplinary process on August 28th (although this did not proceed).

The respondent operates buses under contract to the National Transport Authority since September 2018 and operates thirty routes in total, 23 Dublin Metropolitan and 5 Dublin Commuter. The respondent recognises SIPTU as the trade union representing with sole negotiating rights for Bus Drivers for collective bargaining purposes.

The complainant, Mr Kelly, was a bus driver employed from 24th October 2022 until 6th October 2025, when he resigned. As a professional bus driver, he is categorised as a Group (Class) 2 driver by the Road Safety Authority (RSA) and required a specific bus licence.

Mr Kelly has a number of complaints as outlined by reference number below:

1)     CA-00072990 received by WRC on 10th May 2025 (Payment of Wages Act/OWT) Annual Leave Calculation

The Complainant contends that he was absent from work from 6 July 2023 until 12 December 2024 and that, on or about 12 December 2024, he received a payment in respect of holiday pay calculated at a flat rate of 7 hours and 48 minutes per day. He says that the payment should have been calculated by reference to the relevant period during which he had actually worked.

The original calculation requires correction. Section 20(2)(b) of the Organisation of Working Time Act 1997 requires annual leave pay to be paid at the employee's "normal weekly rate", or at a rate proportionate to the normal weekly rate.

The method of determining the normal weekly rate is prescribed by the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No. 475/1997). The Regulations provide for the calculation to be made over the period of 13 weeks ending on the day on which time was last worked before the annual leave commenced.

The Respondent accepts that the relevant calculation should be corrected in accordance with S.I. No. 475/1997 and calculates the resulting amount due to the complainant as €261.77. The Respondent submits that its acknowledgement of the calculation error and its willingness to correct the payment should be taken into account by the Adjudication Officer in determining what, if any, further redress is just and equitable.

Subsistence

The Complainant further contends that his annual-leave payment should have included a subsistence allowance in respect of each day of annual leave. Under the  Subsistence Policy, a Bus Driver may receive a subsistence payment of €12 where the applicable conditions are satisfied, including the relevant requirements concerning time and distance from the driver's normal depot/place of work.

The payment is made by reference to qualifying duties actually undertaken and only intended to meet expenses associated with working away from the normal place of work. Revenue distinguishes genuine reimbursement of travel and subsistence expenses from remuneration.  Thus, as the payment constitutes reimbursement of expenses rather than an allowance in the nature of pay, it does not form part of his normal weekly rate for the purposes of annual leave pay.

The claim seeking payment for days of annual leave is not well founded. An employee on annual leave does not undertake the qualifying duty, is not away from the normal place of work by reason of that duty, and does not thereby incur the subsistence expense to which the payment relates.

1.   CA-00082033 received by the WRC on 20th March 2026

Mr Kelly contends that his annual-leave pay was not paid in advance of that leave, contrary to section 20(2)(a) of the Organisation of Working Time Act 1997. The Respondent accepts that, on this occasion, annual-leave pay was not paid in advance and consequently accepts that there was a technical contravention of section 20(2)(a).

The issue for the Adjudication Officer is therefore principally one of appropriate redress.  The Respondent respectfully asks the Adjudication Officer to take into account that:

(a)                   the breach concerned the timing rather than the ultimate non-payment of the Complainant's holiday pay.

(b)                   the Complainant received the monies to which he was entitled, albeit through the Respondent's ordinary payroll arrangements rather than in advance.

c) the Respondent does not seek to contest the statutory requirement; and

(d) there is no evidence of identifiable financial loss arising from the timing of the payment.

Accordingly any award should be proportionate to the nature of the contravention and all of the circumstances taking into account previous Labour Court precedence DWT2437 'Noel Kelly and Go Ahead Transport Services (Dublin) Limited'. In that specific case the sum of 1,500 euros was deemed to be the appropriate award having regard to all the circumstances which are analogous to this case.

2)       CA-00079204-001 Payment of Wages Act/ Organisation of Working Time Act

The respondent also concedes this complaint re annual leave from Sunday, 29 June 2025 until Saturday, 5 July 2025 inclusive and makes the same case as above.  

The Complainant also claims that subsistence formed part of his holiday pay and was not fully paid. The Respondent denies this aspect of the complaint. The €12 subsistence payment is conditional upon the employee undertaking qualifying work and satisfying the requirements of the Respondent's Subsistence Policy.

 It is intended as reimbursement in respect of qualifying subsistence expenses and is not an unconditional payment made merely by reason of the employment relationship. The Respondent submits that the payment does not constitute remuneration forming part of the normal weekly rate for annual-leave purposes. Accordingly, this element of CA-00079204 is not well founded.

CA-00082645-001 Constructive Dismissal Resignation

The Complainant alleges, in summary, that he was harassed for having made a protected disclosure; subjected to disciplinary proceedings; discriminated against in relation to roster allocation, treated unfairly during disciplinary proceedings; and denied fair procedures. The Respondent denies that the Complainant was dismissed, constructively or otherwise. No decision was taken by the Respondent to terminate the Complainant's employment.

Rather, on 6 October 2025 the Complainant voluntarily terminated his employment with immediate effect by email to Ms Olivia Lawlor, stating:

"Olivia, I am informing you that I am resigning from the Company with immediate effect due to discrimination, bullying, intimidation and harassment. Noel"

Following receipt of the resignation, Ms Lawlor responded expressing concern about the matters raised by the Complainant and expressly invited him to meet with her to discuss those concerns. She offered to meet the Complainant either at the depot or off-site if he preferred. When the Complainant did not engage with that invitation, Ms Lawlor followed up and again sought to arrange a meeting following her annual leave.

Those communications are significant. They demonstrate that the Respondent did not seek the termination of the employment relationship and was prepared to engage with the concerns raised by the Complainant and explore whether they could be resolved. The Complainant instead elected to resign with immediate effect without permitting that process to be completed.

2.    Roster

The complainant commenced employment at the Ballymount Depot pursuant to his offer of employment dated 12 October 2022. His contractual arrangements permitted the Respondent to change his work location in accordance with operational requirements.

The Respondent nevertheless seeks, insofar as reasonably practicable, to accommodate employee preferences regarding rosters and depots. Waiting lists are maintained for particular rosters/routes. The Complainant was assigned to the Bray roster and requested placement on the waiting list for the Airport roster in 2022.

The Respondent's practice requires an employee to be actively at work in order to be considered for roster movement. The Complainant was absent from work between 6 July 2023 and 12 December 2024. He was therefore not progressed onto the Airport roster during that period.

On February 19th, 2025, the complainant was informed that he was next in line for an Airport roster position and on 23rd March 2025 he moved to the Airport late roster. He was not satisfied with this and wished to move to the main roster.  On 15 May 2025, at a meeting attended by Adriana Constantin and Olivia Lawlor, he was informed that he was next in line for the Airport roster late grid.  The Respondent does not accept that Mr Kelly was discriminated against in relation to roster allocation.

3.   Grievance

On 16 July 2025, the Complainant wrote to Ms Lawlor seeking a grievance meeting across a number of issues. She responded on the same day and sought his availability for a meeting the following week. A meeting subsequently took place on with Sam Cooper HR and Olivia Lawler HR Business Partner on 23 July 2025, where Mr Kelly was supported by a companion, Mr David O' Rourke, at which the issues raised by the Complainant were discussed and a response was provided to his issues on the day.

4.                   Vehicle Defect reporting and Disciplinary Processes

 Safety is necessarily central to the respondent’s operations and it operates a "Daily Checks - Defect Reporting System". Where a driver has any doubt as to whether a vehicle is serviceable, the procedure requires them not to proceed without seeking advice from a supervisor. An employee will not be disciplined merely for raising a genuine safety concern or reporting a suspected vehicle defect.

Information which, in the reasonable belief of a worker, tends to show that the health or safety of an individual has been, is being or is likely to be endangered may potentially constitute a protected disclosure for the purposes of the Protected Disclosures Act 2014, as amended.

Disciplinary matters concerning the complainant were not because he reported suspected defects or raised safety concerns. Rather, the disciplinary processes arose from the Complainant's alleged conduct after the reported defects had been investigated by appropriately qualified engineering personnel, including alleged refusals to operate vehicles after engineering personnel had inspected the vehicles and determined that no relevant defect existed and/or that the vehicles were fit for service.

That distinction is central to the Respondent's case.

Incident of 9th May 2025

In May 2025, Mr Jonathan Farrell, Assistant Operations Manager, wrote to the Complainant concerning an alleged incident involving driver conduct while operating Duty 1251 on 9 May 2025. A meeting originally scheduled for 19 May was rescheduled at the Complainant's request because his representative was unavailable. The investigation ultimately took place on 26 May 2025.

The issue investigated was not the mere reporting of a defect. It concerned the Complainant's alleged refusal to operate the vehicle after an engineer had attended, examined the reported issue and deemed the vehicle fit for service.  The matter proceeded to a disciplinary hearing on 11 July 2025 chaired by Mr Keith McDonnell, Operations Manager.

Following the hearing, Mr McDonnell concluded that the Complainant had disregarded the instruction/advice of a qualified engineer who attended the vehicle at the roadside and confirmed that the mirrors were satisfactory and that the vehicle was cleared for service.

The Complainant received a verbal warning operative for six months and was advised of his right of appeal and exercised that right. An appeal hearing was scheduled for 7th August 2025 and was heard by Mr William Cullen, Regional Operations Manager and Mr Kelly's appeal was not upheld.

Incident 22nd July 2025

On 23 July 2025, Mr Stephen Furey, Assistant Operations Manager, wrote to the Complainant concerning an alleged incident involving driver conduct while operating Duty 1250 on 22 July 2025. The matter arose following a complaint from a supervisor. Again, the issue was not simply that the Complainant had identified or reported a suspected defect. The investigation concerned an alleged refusal to operate a vehicle after engineering personnel had inspected it and determined it to be fit for service.

'

Following investigation, on 1st August 2025, Mr Furey informed the Complainant that the matter would be referred to a disciplinary hearing. Ms Emma Scanlon, Assistant Operations Manager, subsequently invited the Complainant to attend a disciplinary hearing on 11 August 2025.

Ms Scanlon imposed a 9 month written warning following consideration of the facts and notified Mr Kelly by letter dated 27th August 2005. Mr Ke11y was advised of his right of appeal in the same letter and did not exercise that right.

Incident 27th August 2025

On 28 August 2025, Mr Furey wrote to the Complainant concerning alleged incidents while operating Duty 1251 on 27 August 2025. The matters identified for investigation included:

(a)         the reporting of multiple vehicle defects which were subsequently inspected by engineering personnel and found to be without fault; and

(b)         an alleged refusal to operate a vehicle following an engineer's confirmation that no defect existed, resulting in lost mileage and operational disruption.

Mr Kelly subsequently went absent on certified sick leave and he did not return to work.

The respondent disputed that the complainant made a protected disclosure and also emphasised the obligation to exhaust available internal procedures before terminating the employment relationship as in McCormack v Dunnes Stores UD1421/2008.

The principle is also reflected in Conway v Ulster Bank and other authorities: an employee will be expected to substantially utilise an available grievance procedure before concluding that resignation is the only reasonable course. Neither the contract test nor the reasonableness test is satisfied. There was no repudiatory breach of his contract of employment by the respondent.

The commencement of legitimate investigation or disciplinary procedures, in accordance with established procedures and in circumstances where specific conduct concerns had arisen, did not constitute a repudiatory breach of contract. The Complainant was notified of allegations, afforded meetings, permitted representation, and, where a disciplinary sanction was imposed, afforded a right of appeal which he exercised.

The fact that the complainant disagreed with the engineering assessments, disciplinary allegations or outcomes does not of itself render the Respondent's conduct so unreasonable as to justify immediate resignation. Nor does the roster evidence support the contention that the Respondent deliberately disadvantaged the Complainant. The Respondent operated waiting-list arrangements and the Complainant's extended absence from work affected his progression. Once he returned to active employment, his roster preference was again addressed.

When he resigned on 6 October 2025, the Complainant did so with immediate effect without allowing a grievance process to commence. Even after receiving his resignation, Ms Lawlor sought to engage directly with him concerning the allegations of discrimination, bullying, intimidation and harassment and offered to meet him either at the workplace or off-site.

The Complainant has failed to discharge the burden of establishing that he was constructively dismissed.

The complainant submitted four sets of complaints which were initially scheduled for four separate adjudication hearings. There were a total of nine individual complaints.

Five of these were made under the Payment of Wages Act, 1991 three under the Organisation of Working Time Act, 1997, and one under the Unfair Dismissals Act 1977.

It was agreed that all complaints would be consolidated and a Decision in respect of all of them would be issued under ADJ 60406.

By way of preliminary case management, the parties reviewed all of the original complaints, looking first at those listed under ADJ 60406 and submitted on June 10th, 2025. These comprised five separate complaints: three under CA-00072290 and two others under CA-00074923.

The complainant had not made any submission in advance and had difficulty identifying the alleged breaches to which these individual complaints related.

In particular, he could not offer any basis for these latter (CA-74932) complaints and they were withdrawn. It is not exactly necessary that an unrepresented complainant make a written submission but it is generally  in their own interests to do so and helpful in discharging the burden of proof, to say nothing of simply identifying which complaint is which.

The others were eventually identified as relating to payment for refund of training payments, CA-00072290-001, payment of subsistence, CA-00072290-002 and annual leave, CA-00072290-003.

There were two complaints submitted under CA-00079204 on December 23rd, 2025, and another further two on March 23rd, 2026, CA-00082033-001

The Unfair Dismissals Acts complaint was made on April 4th, 2026.

The respondent conceded CA-00072290-003 and a payment of €261.77 is due to the complainant.

It also conceded that it had failed to pay the complainant in advance of taking annual leave and that takes CA-00079204-001 and CA-00082033-001 out of contention, save for my award.

In relation to an award, the respondent referred to Labour Court Decision DWT2437 involving the same parties. This was by way of an appeal of WRC ADJ-00050722 in which Mr Kelly was awarded €1500 for an identical breach and this was confirmed on appeal.

The respondent submitted that this should be a guide line for this case.

Normally it would.

Except that that WRC Decision was issued on June 28th, 2024, and the Labour Court issued its endorsement of the Decision on December 13th,2024, in dismissing Mr Kelly’s appeal.

The breaches to which these new complaints relate were allegedly repeated on December 12th (the day of the Labour Court hearing), and December 26th, 2024, as well as in the following March (2025) and, in the case of CA-00082033, in September 2025.

This respondent had openly acknowledged to the Labour Court in December 2024 ‘that it had not been in compliance with the Act’, as it did in the hearing of the instant complaints some twenty one months later. No explanation was offered that would explain why, having acknowledged its breaches, it repeated them on two occasions.

The situation gets worse however for the respondent.

Very worryingly, it had given similar undertakings to the Adjudication Hearing of ADJ-00059722 in June 2024 to the extent that the Adjudication Officer noted 

 As the Respondent now has a collective agreement in place this matter is rectified.  The Respondent confirmed at the hearing that all employees will be notified of this change given that the Complainant (and possibly others) are not members of the trade union.

Underlining added.

In his conclusions the AO felt, on the basis of these commitments from the respondent that this freed him (the AO) of the obligation to make an order under the Organisation of Working Time Act. The Adjudicator stated.

This complaint is well founded, and I note that the Respondent has confirmed its compliance with the provisions of the Act and with the provisions outlined in S.I. No. 475/1997 and in that context, it is not necessary to require the Respondent to comply with the relevant provisions.

Underlining added.

This renders the statements made by the respondent and its subsequent breaches a matter of some considerable gravity.

However well intended these commitments not to repeat the breaches of the Act may have been, it is simply not tolerable that a party would then proceed to commit subsequent breaches of the Act, and, even more reprehensibly,  in relation to the same employee.

I  do not think it is possible to overlook the failure of the respondent to honour these misleading statements and commitments to both the WRC and the Labour Court, and specifically as it led an Adjudicator to rely on those undertakings in making his Decision. He declined to make an award he otherwise considered it proper to make on the basis of undertakings from this respondent which it subsequently failed to honour..

This is very reprehensible conduct on the part of the respondent  and my award will reflect that. 

This leaves CA-00072290-001 related to the claimed refund of training payments and CA-00072290-002 regarding the payment of subsistence.

On the first of these, the complainant’s case is that his entitlement to a refund of payments deducted for training purposes is based on having completed the full course (and evidence was given by the respondent of that being the case).

However, he says that the reason he did not complete the course was that he had been ‘kept on’ sick leave incorrectly and had an adjudication to this effect in a previous WRC case. However, this does not address the fact that whatever gave rise to his absence he was not at work and not driving so therefore there was no training component to his work.

He confirmed that he had consented to the deductions.

I find therefore that the respondent applied its policy correctly and no unlawful deduction has taken place.

The position related to Complaint CA-00079204-002 regarding subsistence was confusing and not helped by the complainant’s general failure to prepare for the hearing and adequately set out the basis of his complaints.

As a general claim for subsistence it cannot not be well founded for the reasons set out in the respondent‘s submission (it is not remuneration ‘properly payable’) but the respondent identified a small element of calculation for public holiday payment for which the complainant is due €24.00.

This disposes of the complaints related to the Payment of Wages and Organisation of Working Time Acts.

Regarding CA-00082645 and the complaint of constructive unfair dismissal the hearing had initially proceeded in the normal way to establish whether the complainant had met the various legal tests and the burden of proof that would establish the threshold for a constructive dismissal.

He confirmed that he had written the letter of resignation on October 6th, 2025, and that he had not specifically raised any grievance that would have put the respondent on notice that he was considering resignation.

He also confirmed that he rebuffed the respondent’s efforts to engage with him afterwards because he ‘had no intention of returning to work’.

So, on these facts he was already facing an uphill battle in making out his complaint.

But what emerged, somewhat by accident, in the course of the final stages of the hearing (when loss was being examined) placed the complaint in a different category entirely. To describe it as a significant development would be putting it mildly.

In dealing with the question of loss, the complainant was asked whether he had found new employment and/or whether there were any financial losses attributable to the termination.

To the surprise of all present, he confirmed that he had started new employment on October 6th, 2025, in a remarkable coincidence the very same day on which he resigned from his position with the respondent.

He also confirmed that he had begun the process of applying for the position ‘in August or September’.

A person is perfectly at liberty to resign from their employment at any time subject to whatever contractual obligations they may be required to discharge. The making of a complaint of constructive unfair dismissal is another matter where the essence of the complaint is that a person had to leave the employment ‘due to the conduct of their employer or others at work’.

As will have been seen in the respondent’s submission the letter of resignation to the respondent read as follows.

I am informing you that I am resigning from the Company with immediate effect due to discrimination, bullying, intimidation and harassment.

This clearly attributes the decision to resign to discrimination, bullying etc and there is no indication that the complainant was actually starting with his new employer that very same day, having spent some four to six weeks in the application process.

The complainant made a vague attempt to imply that his decision to resign could be traced back to the alleged earlier incidents regarding the disciplinary process etc but even he failed to pursue what would have been a hopeless argument on the facts. To add to this he met none of the test requiring use of internal grievance machinery to process his intended resignation.

The factual matrix completely undermines the credibility of the complaint although even apart from this critical factor, it is hard to imagine a complaint of constructive unfair dismissal with less merit. It has absolutely no merit and is entirely vexatious.

I make my findings as follows.

Neither Complaint CA-00072290-001 nor CA-00072290-002 is well founded.

CA-00072290-003 is well-founded and I award a payment of €261.77 to the complainant.

Complaints CA-00074935-001 and 002 were withdrawn.

Complaints CA-00079204-001 and CA-00082033-001 are well founded.

Taking account of the specific points above regarding the respondent’s conduct and its very serious failure to honour its commitments to both the WRC and the Labour Court in respect of earlier, identical breaches arising from ADJ-00050722, I award the complainant €3,000.00 in respect of each breach.

For the avoidance of any doubt I also issue an order under section 27 (b) of the Organisation of Working Time Act requiring the respondent to comply with the provisions of the Act.

The position related to Complaint CA-00079204-002 is well founded only in respect of that part of it which relates to public holidays and I award the complainant €24.00.

Complaint CA-00082645-001 is vexatious and entirely without merit. It is not upheld.

Neither Complaint CA-00072290-001 nor CA-00072290-002 is well founded.

CA-00072290-003 is well-founded and I award a payment of €261.77 to the complainant.

Complaints CA-00074935-001 and 002 were withdrawn.

Complaints CA-00079204-001 and CA-00082033-001 are well founded and I award the complainant €3,000.00 in respect of each breach.

I also issue an order under section 27 (b) of the Organisation of Working Time Act requiring the respondent to comply with the provisions of the Act in all respects, but specifically the requirements in relation to payment for annual leave.

Complaint CA-00079204-002 is well founded in part and I award the complainant €24.00.

Complaint CA-00082645-001 is vexatious and entirely without merit. It is not upheld.

Pay, Dismissal