ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057445
Parties:
| Complainant | Respondent |
Parties | Elena Sava | Aldi Stores (Ireland) Ltd |
Representatives | Self-represented | Kiwana Ennis BL, instructed by Flynn O’Driscoll LLP |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 18 of the Parental Leave Act, 1998 | CA-00069841-001 | 07/03/2025 |
Date of Adjudication Hearing: 06/11/2025
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard and to present any evidence relevant to the complaint.
The hearing was held in public at the Hearing Rooms of the Workplace Relations Commission (WRC) in Carlow. Written submissions and documentation were presented to the WRC and exchanged between the parties in advance of the hearing. In attendance for the Respondent was Ms Kiwana Ennis BL; Mr Walter Beaty (instructing solicitor); Ms Iwona Szanarejko, Store Manager; Mr John Prendergast, Area Manager; and Mr Stephen Hiney, Store Operations Manager. Ms Ennis confirmed the correct legal title of the Respondent to be Aldi Stores (Ireland) Ltd. This decision has been amended to provide for the correct legal title of the Respondent. The Respondent did not call any witnesses to give evidence.
The Complainant was not represented. I outlined that as the Complainant was not represented, I would be available to assist the Complainant to present her case where necessary and appropriate as part of my statutory duty to inquire. I invited Ms Ennis to object if she had any difficulty with any assistance I provided during the hearing and that I would hear that objection. I took care to ensure the Complainant understood the process to be followed during the hearing. The Complainant was sworn in. An independent WRC appointed interpreter assisted the Complainant with translation. The interpreter was sworn in.
The parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, employment rights and equality hearings before the WRC are held in public and that the decision would not be anonymised unless there were special circumstances for doing so. There was no application to have the matter heard in private or to have the decision anonymised.
On 7th March 2025 the Complainant referred a complaint to the WRC under the Parental Leave Act, 1998. On 2nd September 2025 the Complainant also requested the WRC to investigate the manner in which the Respondent had allegedly investigated a complaint made by the Complainant to the Respondent in April 2025 under the Respondent’s Bullying Policy. This matter was not part of the complaint presented to the WRC on 7th March 2025. The Complainant told the hearing that she was unsure what legislation her complaint of 7th March 2025 and her complaint of 2nd September 2025 should be heard under as she did not have the benefit of legal advice. Comments were sought from both parties on whether both complaints presented to the WRC could be heard under an alternative statute such as the Industrial Relations Act, 1969 (in addition to the Parental Leave Act, 1998 with respect to the complaint presented on 7th March 2025, if desired). The parties were reminded of the provisions of s 13(3)(ii) of the Industrial Relations Act, 1969 with respect to an employer’s right to object to an investigation. After a short adjournment, and having heard submissions from both parties, it was agreed that this complaint presented to the WRC on 7th March 2025 would be heard under the Parental Leave Act, 1998 as selected by the Complainant, and the complaint presented to the WRC on 2nd September 2025 would be assigned a separate complaint reference number by the WRC and would be the subject of a separate hearing. The Complainant confirmed she understood that her complaint, as notified to the WRC on 2nd September 2025, remains open and it is for her to inform the WRC of the statute/s she wishes to have that complaint heard under.
In coming to my decision, I have taken account of the relevant evidence before me provided by way of oral testimony and written submissions.
Background:
The Complainant is employed as a store assistant with the Respondent since 2019. On 7th March 2025 the Complainant referred a complaint to the WRC under the Parental Leave Act, 1998. It is the Respondent’s position that this complaint under the Parental Leave Act, 1998 is misconceived. |
Summary of Complainant’s Case:
The Complainant outlined that she has been in the employment of the Respondent for the past 6 years. She is currently on sick leave. Since she began working for the Respondent, she was facilitated by the store manager to work around her partner’s work schedule to facilitate their childcare arrangements. The Complainant would send her partner’s work schedule to her store manager who then scheduled the Complainant’s shifts around her partner’s working hours. This worked well and there were no issues with this arrangement for 6 years.
In January 2025 the store manager told the Complainant that, with effect from March 2025, the Respondent would not be able to facilitate this arrangement any longer. The store manager gave no reason either verbally or in writing for the change.
The Complainant told the store manager on 3rd March 2025 that she had agreed shift swops with her colleagues. The store manager told the Complainant that she was not permitted to continue to swop shifts and that she could no longer facilitate the Complainant as she had done previously. The Complainant tried to explain the difficulties this presented for her with respect to her existing childcare arrangements. The store manager repeated that she could not help the Complainant, and that her childcare arrangements were the Complainant’s concern. The store manager then closed the door on the Complainant. Two work colleagues were in the hall. The Complainant felt embarrassed. She returned to the till but became upset. She was permitted by the store manager to go home for the remainder of the day. She visited her GP the following day and has been on certified sick leave since 4th March 2025.
The Complainant outlined that she was just trying to go to work. She tried to find a solution by agreeing with her colleagues to swop shifts, but this was not considered by the store manager. The Complainant tried to talk to the area manager, but he told her to speak with her store manager again. The Complainant submitted that the way she was treated was unfair, as she had never missed a shift in 6 years. Two other colleagues were permitted to swap shifts on an occasion after 3rd March 2025, and this constitutes unfair treatment. The Complainant opened to the hearing a roster and submitted that this roster was proof of the shift swop. The Complainant could give no reason to the hearing as to why or on what grounds she felt she was being treated differently.
The Complainant made a complaint of bullying in April 2025 against the store manager arising from the store manager’s conduct towards her on 3rd March 2025.
In cross-examination, the Complainant confirmed that she did not make a request for a flexible working arrangement as per the requirements set out at s 13B(6) of the Parental Leave Act, 1998. It was put to the Complainant that she never asked for any particular hours at all. The Complainant responded: “no, how could I ask for that as she [the store manager] was saying I needed to be fully flexible”. The Complainant confirmed that her partner worked for another retailer as a store manager and in that capacity, he had the freedom to determine his shifts. The Complainant was asked if she had requested her partner to accommodate her work schedule. The Complainant responded: “he said no because I am part-time, and he can’t work by my hours as he is a store manager”. The Complainant confirmed that the store manager had given her two months’ notice that she could no longer continue to roster the Complainant’s hours around her partner’s working hours. It was put to the Complainant that the store manager did tell her that the arrangement was now posing operational difficulties for the business and that other staff had to be facilitated also. The Complainant responded that this is why she tried to create a solution by swapping shifts herself, but the store manager said no to that. The Complainant was asked what efforts she had made herself from January to March 2025 to prepare for the change to the manner in which she would be rostered for work. The Complainant responded that she couldn’t make changes as she was not prepared to leave her child early in the morning as her child’s life was more important. The Complainant confirmed she had not specifically asked the store manager not to roster her for early mornings. It was put to the Complainant that she continued to submit her partner’s roster having been told not to continue to do so, and after being advised again in February that this practice could no longer be facilitated. The Complainant confirmed that she did continue to submit the roster and thought that swopping shifts with colleagues would resolve the matter. |
Summary of Respondent’s Case:
The Respondent did not call any witnesses to give evidence in relation to this complaint.
Legal Submission Ms Ennis outlined the relevant provisions of the Parental Leave Act, 1998 and submitted that in accordance with the 1998 Act and the Code of Practice on the Right to Request Flexible Working, to come within the remit of s 13B of the 1998 Act, it is necessary for an employee to comply with the criteria set out at s 13B(6). Ms Ennis submitted that it is clear from the provisions of the 1998 Act, that there is no obligation on an employer to accede to a request for flexible working, and the only obligation on an employer is to consider a formal request made in writing and to respond to same in a manner as provided for under s 13C of the 1998 Act. As no request in writing was made by the Complainant at any time, no corresponding obligation arose for the Respondent. The 1998 Act does not provide for the right to request that one’s partner’s roster be facilitated. The claim is misconceived. Further, it is not the responsibility of the Respondent to advise the Complainant of her statutory rights. There are organisations that could advise the Complainant in that regard. |
Findings and Conclusions:
Relevant Law The Parental Leave Act, 1998 (“the 1998 Act”), was amended by the Work Life Balance and Miscellaneous Provisions Act, 2023 to incorporate provisions with respect to flexible working arrangements for caring purposes. Section 2(1) of the 1998 Act provides for a broad definition of a flexible working arrangement as follows:
“"flexible working arrangement" means a working arrangement where an employee’s working hours or patterns are adjusted, including through the use of remote working arrangements, flexible working schedules or reduced working hours”.
Section 13B of the 1998 Act provides for the right of specified persons to request a flexible working arrangement as defined at s 2(1) of the 1998 Act. It does not provide for the right to be given a flexible working arrangement. Section 13B(6) provides that a request for a flexible working arrangement must be in writing and signed by the employee. This written request must set out the type of flexible working arrangement sought, the proposed commencement date and duration of the flexible working arrangement and be submitted to the employer as soon as reasonably practicable but not later than 8 weeks before the proposed commencement of the flexible working arrangement.
Section 13C imposes certain obligations on an employer to consider an application for a flexible working arrangement. However, these statutory obligations do not arise for an employer in the absence of an application for a flexible working arrangement made in accordance with s 13B(6) of the 1998 Act.
An employee cannot be penalised for proposing to exercise or having exercised his or her entitlement to make a request for a flexible working arrangement under the 1998 Act.
Findings It is clear from the Complainant’s written submissions and her oral testimony that her complaint concerns the discontinuation by the Respondent of a practice of facilitating her working hours around those of her partner which the Complainant submits was agreed for caring purposes.
I am satisfied the Complainant has not identified any breach under the 1998 Act. There is no right under the 1998 Act to retain a working arrangement or practice, howsoever defined, agreed prior to the coming into force of the Work Life Balance and Miscellaneous Provisions Act, 2023. As noted above, the 1998 only confers on a qualifying employee the right to request a flexible working arrangement, and a corresponding obligation on the employer to consider that request.
It was common case the Complainant had not, at any time, proposed to exercise or exercised her entitlement to make a request for a flexible working arrangement under the 1998 Act. Therefore, I am satisfied that the obligations set out at s 13C of the 1998 Act did not arise for the Respondent. Further, it cannot be said the Complainant was penalised within the meaning of s 16A of the 1998 Act.
Having carefully listened to the oral testimony of the Complainant and having reviewed her written submissions to the WRC, I am satisfied this complaint under the Parental Leave Act, 1998 (as amended) is misconceived, and accordingly I find the complaint is not well-founded. |
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 decide this complaint under the Parental Leave Act, 1998 (as amended) is not well-founded. |
Dated: 19-11-25
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Flexible Working Arrangement. Complaint misconceived. |