Complainant

Respondent

Parties

Jonas  Kiaulakis

CHM Group

Representatives

Sharon Dillon-Lyons B.L. instructed by Mullaney Walsh Maxwell LLP Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00070817-001

14/04/2025

The complainant gave evidence on affirmation. He is employed under a contract for four twelve-hour shifts per week (a total of 48 contracted hours), normally scheduled from Monday to Friday. He does not work at weekends.

A previous WRC case was settled before hearing and clarified his working schedule and related matters. The settlement stated that both parties accepted the agreed terms and would not reopen the discussed issues.

Thecompanyhasintroducedanewpracticeresultinginthesystematicreductionofcontracted working hours and pay. It schedules him for only three 12-hour shifts (36 hours) during public holiday weeks,treatingthebankholidayasthefourth12-hourshift.

This substitution results in a loss of one contracted 12-hour shift/pay per bank holiday week. Furthermore, the company has offered me to work on Saturday to make up for the lost shift, despite a written confirmation with the logistics team that I do not work on weekends.

On a separate, single instance, when he requested and took annual leave, starting Friday, the company reduced the schedule for that week to three working shifts (Monday, Tuesday, Thursday), removing the fourth contracted shift (Wednesday).

This is a breach of the employment contract and the Organisation of Working Time Act 1997.Under that Act, an employee's entitlement for a public holiday is in addition to, and not a replacement for, an employee's normal contracted working hours.

The practice of replacing one of the four contracted shifts with the public holiday entitlement reduces the contracted working hours and pay, contrary to the spirit and letter of the Act.

This  is a new, distinct breach that occurred after the previous WRC settlement, and the complainant seeks confirmation that the employer schedule and pay the complainant for four 12-hour shifts per week (48 hours).

It must also apply proper payment or compensation for public holidays in compliance with the Organisation of Working Time Act 1997, ensuring the public holiday entitlement is in addition to, and does not reduce, contracted shifts.

He also seeks compensation for the loss of earnings and shifts resulting from the employer's breaches, specifically for the three separate instances where the contracted work shift was improperly reduced during bank holiday weeks.

The complainant works as a General Operative. The employment relationship commenced on 18 August 2019. The respondent company provides services relating to traffic management systems.

As set out in his contract of employment, the complainant’s hours of work constitute 48 hours comprised of four twelve-hour shifts per week. His days of work are specified as Monday to Saturday. He is paid €160.00 gross per shift which results in average weekly gross pay of €640.00. There is the opportunity to work additional shifts as overtime when available.

The respondent considers the complainant a valued employee and the working relationship has been a good one. The  complainant brought a complaint to the WRC on  April 7th, 2024.

The compromise agreement reached was confidential but nonetheless it is referred to in the complaint form.

It should be noted without breaching the terms of that agreement, it was reached without any admissions of liability on the part of the respondent including a claim that the complaint fell under an SEO which had no application.

An agreement was reached, and it is denied that the history between the parties has informed the present complaint which is further misconceived. There was no penalisation following the first complaint and/or compromise of same in December 2025.

The complainant submitted complaint form CA-00070817-001 on April 14th, 2025. There is one complaint of penalisation for invoking his rights or giving notice of his intention of doing so under the Organisation of Working Time Act 1997.

In his submissions dated November 5th, 2025, but received on October 22nd, 2025, the complainant set out matters which reach beyond the complaint made and he asks for the following under the heading ‘Request to the WRC’:

Honour the contract by scheduling and paying me for four 12-hour shifts per week (48 hours).

Apply proper payment or compensation for bank holidays in compliance with the Organisation of Working Time Act 1997, ensuring the bank holiday entitlement is an addition to, and does not reduce, the contracted shifts.

Compensate me for the loss of earnings and shifts resulting from the employer's breaches, specifically for:

The three separate instances where the contracted work shift was improperly reduced during bank holiday weeks.

The single instance where the annual leave week was improperly reduced from four shifts to three shifts.

In addition to the fact that these allegations are vague, no complaint relating to public holidays is before the WRC, only penalisation.

The case law of the WRC and Labour Court regularly relies on the case of County Louth VEC v. Equality Tribunal [2009] IEHC 3701 (the Brannigan case’) as the basis for the position that a complaint form is not to be treated like as pleadings and someflexibilityoughttobeallowedsubjecttofairproceduresandanyprejudiceserved onotherparties.

First, this judgment preceded Zalewski v the Workplace Relations Commission [2022] 1 IR 421 (‘Zalewski ‘) and was made in consideration of the functions of the Equality  Authority prior to the Supreme Court declaration that the WRC is engaged in the administration of justice for the purposes of Article 34 of the Constitution. It is submitted that the informality lauded by the High Court in Brannigan must now be viewed through the prism that the ‘deciding body or tribunal’ in Brannigan (para 47, Supreme Court) is not ad idem with the quasi-judicial body considered by the Supreme Court in Zalewski with its procedures reconfigured and formalised following the Zalewski judgements.

Second, while the High Court judgement in Brannigan is often quoted in supporting an application for the enlarging of a complaint, there is less attention paid to the Supreme Court judgement in that same case. ([2016] IESC 40

There it was emphasised that the Equality Officer had not yet determined if she would admit complaints which it was argued by the respondent were outside the parameters of the complaint form (EE1) submitted, rather she had determined that she would hear evidence and later determine their admission. The Supreme Court noted the prematurity of the judicial review proceedings and went further where in the judgement of Mr. Justice McKechnie stated, at paragraph 53.

“Accordingly, I do not believe that any views on the substantive law should be offered. I therefore regard many of the observations made by the learned trial judge as being purely obiter: in particular in this regard, I would expressly decline to endorse his views which I have summarised at paras. 9(iv) and (v) above.”

The views expressed by the High Court at those paragraphs referred specifically to the lawfulness of enlarging a complaint despite the restricted information presented in the EE1 and were as follows:

“(iv) That as a result, by analogy with court proceedings, there was no reason why the claim as formulated could not be amended so long as the general nature of the complaint remained the same.

(v) That the submissions of the notice party delivered post the 4th of August 2006, should be regarded, in effect, as the furnishing of further and better particulars of the claim, albeit in an expanded period of time: such complaints so made, even within this period, were not time barred under the legislation.”

The comments made in the High Court judgment in Brannigan were qualified by the Supreme Court as obiter only and were expressly not endorsed by the Supreme Court. Therefore, it is not correct to suggest that Brannigan is an authority that the WRC may consider complaints not made in the complaint form. It is certainly the case here that the submissions characterise a completely different complaint and the complainant’s submissions asks the WRC for remedies requested in the submissions which are not sought in the complaint form and are not before the WRC.

The complainant should be confined to the penalisation complaint on the form but there are no particulars of penalisation set out in the complainant’s submissions.

As is apparent from the appended correspondence, the resumption of Saturday working practice was caused by the cessation of the Intel site. The complainant commenced his agitation of grievances including the issues arising here and allegations of penalisation as far back as August 2023, 15 months outside the cognisable period for this complaint under section 41 of the 2015 Act and at which time the previous complaint was not yet heard (the hearing date, once postponed, was 11 November 2024).

The complainant was not penalised where section 26(1)(a) requires .”at the penalisation occurs because of “invoking any right conferred on him or her by this Act”. It is submitted that the only complaint which could be made under the 1997 Act relates to the payment of public holidays which does not arise as the complainant was paid and accordingly no breach arises.

Further, his grievances relate to his contract of employment which does not fall within the 1997 Act.

The complainantregularlycharacterisesanyrequestsmadebytherespondentaspunitiveas is evident from the attached correspondence. Moreover, it is clear that the alleged penalisationofavailabilityacrossthecontracteddays,post-Intel,firstaccruedoccurred inNovember2023whenthecomplainantcomplainedthathisremovalfromthesite which was closing and return to work on sites operating Monday to Saturday was punitive, which is denied.

Again, that complaint was outside the 6 months preceding this complaint and second constituted a claim compromised by the agreement of 17 December 2025 which was made in full and final settlement, satisfaction, release and discharge of the 2024 complaints and any other claim to the date of the signing of the agreement. More importantly it is clear that there is no nexus whatsoever between the purported penalisation and the complainant’s most recent complaint to the WRC.

The nature of the respondent business is critical in understanding that the complainant, and all other general operatives, are required to work on different locations as required by the operational needs of the respondent. The locations and days in which the respondent operates are fully dictated by contracts active at any given time. The services provided by the respondent are always time limited and may require employees to present for work in locations throughout Ireland.

Further, in order to reflect the nature of the respondent business, the complainant’s job description sets out the requirement that the complainant was required to make himself available for work in any are required by the respondent. The complainant read and signed that job description on August 16th, 2019, prior to the commencement of the employment contract. The complainant has no fixed place nor days of work. The nature of his work is that it moves from site to site and is scheduled to respond to business need.

Finally, the complainant has been engaged in various grievances concerning the terms and conditions of work since August 2023. The respondent is an employer that consistently engages with staff representatives and individual staff members to resolve any grievances or complaints.

The seminal case on the burden of proof for penalisation claims is the Labour Court decision in O’Neill v Toni and Guy Blackrock (2010)21ELR1.

That case considered a complaint of penalisation under section 27(1) of the Safety, Health, and Welfare at Work Act. In that case, in relation to the burden of proof, the Labour Court determined that the employee must prove on the balance of probabilities that they made complaints regarding health and safety in the workplace and such complaints resulted in the employee being penalised in the workplace.

Once these two proofs have been satisfied, it is for the employer to satisfy the court that the health and safety complaints did not influence the treatment of the employee. The Court stated:

“It is clear from the language of [section 27] that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains of was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause.”

And“

Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The relevant language in section 27(3) is that “an employer shall not penalise or threaten penalisation against an employee for” [emphasis added]. Section 26 of the Organisation of Working Time Act, 1997 uses exactly the same language; “an employer shall not penalise or threaten penalisation of an employee for”. The analysis of the Labour Court applies in full to the burden placed on the complainant in making out the complaint.

It is respectfully submitted that there is no detriment incurred and further no evidential basis on which the complainant can discharge his burden in proving penalisation. The  complainant is treated like any other employee in the manner in which shifts are allocated, and his numerous requests are accommodated, and no penalisation has occurred.

This last point made in the respondent’s submission must be the starting point of a review and consideration of the complaint.

Indeed, there are three stages in that review.

The first is whether the nature of the grievances outlined by the complainant, essentially relating to rostering issues are properly part of the complaint, and more precisely whether they were intended to be covered by his complaint of Penalisation.

Because that is what the complaint is; one of penalisation under the Organisation of Working Time Act.

In his written submission the complainant defined this as follows ‘Issue: Reduction of contracted shifts and improper treatment of bank holidays | Date: November 5th, 2025’

There are two stages in a penalisation process; the first is the making of a complaint (or the threat to do so) as outlined in Section 27 (3) and addressed in the respondent‘s submission above.

The second is a subsequent act of retaliation by an employer for having done so. There must be a causal connection between the two.

In Margaret Bailey t/a Finesse Beauty Salon v Farrell HSD 104 (11 August 2010) the Labour Court found that liability will only be imposed in very limited and circumscribed circumstances and that the 2005 Act.

 ‘Only applies where an employer penalises or threatens penalisation against an employee for making a complaint or representation to their employer as regards any matter relating to safety, health, and welfare at work. Penalisation for any other reasons does not come within the scope of the Act.’

In “Employment Law,’ Eds Murphy, Regan, 2nd Edition, para 5.54

The complainant harbours a serious grievance against his employer over his pattern of rostering. He says this has resulted in him being ‘penalised’. Whether it has or not is one question.

He summarises those grievances above as follows.

The complainant askes that the WRC confirm that the employer must honour his contract by scheduling and paying me for four 12-hour shifts per week (48 hours).

 It must also apply proper payment or compensation for bank holidays in compliance with the Organisation of Working Time Act 1997, ensuring the bank holiday entitlement is an addition to, and does not reduce, contracted shifts.

He also seeks compensation for the loss of earnings and shifts resulting from the employer's breaches, specifically for the three separate instances where the contracted work shift was improperly reduced during bank holiday weeks.

It is far from clear how any of these issues can be shoehorned into a complaint of Penalisation under the Organisation of Working Time Act.

Indeed, it became clear in the course of the hearing that the complainant, whose first language is not English and his knowledge of the language is very poor, did not properly understand, (or more accurately was not properly advised, as it is clear that he had the benefit of professional advice to judge from his written submissions)  the strict meaning on the word in this legal context.

Specifically, the complainant was not able to point to any incident of a referral or threat to refer a matter under the Act. He sought to represent the referral of this current complaint as such, but that cannot qualify as the instant complaint must be predated by the two steps necessary to ground it, as set out above.

He also sought to infer that the settlement reached following the previous reference to the WRC might have some part to play in qualifying his complaint of retaliation.

While the hearing was at a disadvantage in that those settlement terms were confidential, (and correctly so) the respondent denied that there had been any resiling from its terms. In any event, a confidential settlement of an earlier dispute comes nowhere near the requirement that there has been a referral or threat to refer under the Act.

I find therefore that the complainant has failed to make out a prima facie case.

There has been no first step in the Penalisation process, viz, a referral of a complaint or threat to do so under the Act. Therefore, even if there had been some subsequent adverse act, and the complainant has failed to identify any, it cannot meet the legal criteria to be considered as an act of penalisation.

In passing it is worth noting that the settlement between the parties was concluded in December 2024. This complaint was referred to the WRC in April 2025, a mere four months later.

It is quite clear that the complainant failed to avail of, much less exhaust the well-established procedures at the level of the workplace for resolving grievances, such as those at the heart of this dispute, whatever their merit.

He told the hearing that he had raised them but was not getting the response he required. However, he did not avail of the formal grievance machinery and instead referred the matter again to the WRC.

While there is no legal requirement to exhaust internal machinery under this legislation, it represented the best prospect for efficiently resolving the complainant’s actual grievance.

He demonstrated that he was under a serious misconception of the role of the WRC as some sort of tribunal of first resort for the resolution of what is no more than a low-level complaint over rostering.

His complaint is thoroughly misconceived, and it is not well founded.

For the reasons set out above complaint CA-00070817-001 is not well founded.

Penalisation