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In Noel Kelly v Go Ahead Bus Ireland (ADJ-0005112), the Workplace Relations Commission (“the WRC”) found for the Complainant Mr Kelly in a Payment of Wages claim. The Complainant was not paid by his employer while an investigation took place surrounding his fitness to work. The WRC Adjudicator, Catherine Byrne, found that the Complainant ought to have been paid during this time and accordingly awarded him the wages he was not paid from October 6th 2023 until he submitted his complaint to the WRC six months later on April 5th 2024.
Facts: The Complainant was employed by the Respondent as a bus driver since October 2022. The Complainant’s weekly pay was €680.00 gross. He had been absent from work since June 19th 2023, for a period of sick leave.
On June 21st 2023, the Complaint attended a doctor, referred to as “the Ciywest doctor”, who prescribed medication for high blood pressure and stress and advised the Complainant to remain out of work and to come back for a review on July 5th, 2023. The Complainant returned for his appointment on July 5th, and the Citywest doctor certified the Complainant as fit to return to work the next day.
However, as the Complainant’s role as a driver was a safety critical role, the Respondent referred him to an occupational health provider (the “Occupational Health Provider”) for an appointment on July 6th, 2023.
Following that appointment there was a mix up on the part of the Occupational Health Provider whereby the file of the Complainant and a file of another patient with the same name were incorrectly merged together. This mistake appears to have caused considerable confusion. However, the WRC Adjudicator also identified delays on the part of the Respondent in addressing matters as well as resistance on certain aspects by the Complainant.
Of significance in this case was the fact that the Complainant’s contract of employment contained the following clause at Section 15.1:
“The Company reserves the right to ask you not to attend work at any time at its sole discretion, during any period that you are not required to work, you will continue to be employed by the company and will continue to receive your normal pay and benefits, except that you will not receive any bonus or commission payment that is dependent on work being undertaken on sales of leads being generated.”
Owing to all of the confusion and delays mentioned above, the Complainant was not permitted by the Respondent to work from 6th July 2023 and remained out of work at the date of the WRC hearing in September, 2024. He was unpaid for all this time with the exception of 15 days sick pay.
Decision: The Adjudicator accepted that the role of a bus driver is a safety critical role and that drivers must be assessed as fit for work based on certain medical criteria. Nonetheless the Adjudicator held that the management and the occupational health provider “should have acted with a greater degree of energy, persistence and tenacity to get the complainant back to work.”
The Adjudicator agreed with the Complainant’s position that he was not absent from work due to illness but rather he was absent on the instructions of his employer and, in these circumstances, section 15.1 of his contract of employment (mentioned above) applied. The Adjudicator concluded that while the Complainant was absent waiting for the occupational health consultant to complete their assessment of his fitness for work, the Complainant’s wages were properly payable and it followed that the Respondent’s failure to pay him any wages amounted to an illegal deduction from his wages.
The Adjudicator directed the Respondent to pay the Complainant compensation equivalent to the wages he was not paid from October 6th 2023 to the date he submitted his complaint to the WRC six months later on April 5th 2024. The Adjudicator calculated the Complainant’s gross earnings during this period to be €17,680. As he received three weeks’ sick pay in November 2023, the Adjudicator reduced the amount to be paid in compensation to €15,640. The Adjudicator determined that under section 6 of the Payment of Wages Act 1991 (as amended), she is required to direct the Respondent to pay compensation as a net amount. In estimating the deductions for PAYE, PRSI and USC, the Adjudicator directed the Respondent to pay the Complainant compensation of €13,000.
Takeaway for employers:
This decision highlights the need for an employer to act as promptly as possible whenever an employee is incurring a loss of pay as a result of a decision of the employer.
In this case, even though the Adjudicator accepted it was entirely reasonable and necessary for the Respondent to want to further investigate the Complainant’s medical fitness to work before allowing his return to his safety critical role, the Respondent’s efforts in trying to get to the bottom of the matter and return the Complainant to paid work were simply not sufficient. More energy, persistence and tenancity was required.
Link – https://www.workplacerelations.ie/en/cases/2025/may/adj-00051123.html
Authors- Jane Holian, Laura Killelea
30th June 2025
Anne O’Connell Solicitors
19-22 Baggot Street Lower
Dublin 2