Complainant

Respondent

Parties

Shane  Fleming

An Post

Representatives

Dominic Carthy

Kudos HR                  

 Paul Maier BL

Jacinta Burke Solr.,

An Post Legal

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00072808-001

26/06/2025

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

CA-00072808-002

26/06/2025

This hearing was conducted over the course of two days and in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 26th of June 2025. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

The Complainant was fully represented by a HR representative. The Complainant had full legal representation at the hearing. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 18th day of November 2025. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form which read as follows:-

Complaint under the Employment Equality Acts 1998–2015

Ground: Family Status (Section 6(1)(c))

Mr. Fleming alleges that he was subjected to less favourable treatment by his employer on the basis of his family status, as the parent of three children (two under the age of four). Following his applications for parental leave, he experienced:

• Removal from his regular delivery route (Route 26), which he had held for over three years.

• A change in working hours from 6am–2pm to 11am–7pm, impacting his ability to meet childcare responsibilities.

• Reassignment to a "Leave 5" position—typically reserved for more junior staff—despite having greater seniority.

• Loss of shift preference ordinarily granted based on length of service.

These actions closely followed or coincided with Mr. Fleming’s efforts to exercise his statutory right to parental leave. Colleagues without family responsibilities were not treated similarly. Mr. Fleming contends that this constitutes discrimination on the grounds of family status under Section 8 of the Employment Equality Acts 1998–2015.

Link to Existing Case:

This complaint arises from the same set of facts already submitted under the Parent’s Leave and Benefit Act 2019 (WRC Case Reference: ADJ-00059584). Mr. Fleming respectfully requests that this complaint be formally linked to that adjudication for joint consideration.

Relief Sought:

A finding of unlawful discrimination, redress for the adverse impact on Mr. Fleming’s working conditions and family life, and reinstatement to his former role or equivalent duties in line with his seniority.

I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he has been penalised for having exercised his entitlement to parent’s leave.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose that there is a reasonable cause of action or that there appears to have been a contravention of a Statute or Statutes.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was represented by a number of workplace witnesses including Jan Vaughan the HR Business Partner and Terry Meegan the Delivery Services Manager.  The Respondent ultimately provided me with a consolidated submission as of the 20th of February 2026.  I have additionally heard from a number of witnesses for the Respondent herein menjtioned. On the second day of hearing the Respondent provided me (at my request) with some documentary evidence concerning the seniority of staff in the workplace. The Respondent asserted that this information is workplace sensitive, and I gave directions as to non-disclosure in respect of same.

No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant representative.

The Respondent rejects that there has been any penalisation of the Complainant, and maintains a compliance with the Parent’s Leave and Benefit Act 2019. The Respondent asked that I consider a portion of their submission as their position on this matter as follows:

Regarding the 2019 Act and the 1998 Act

74. The Complainant has been subject to standardised and collectively-bargained rules regarding seniority and appointment to routes and other assignments.

75. The Complainant has not suffered any form of “downgrading” of his seniority or other less-favourable or detrimental treatment.

76. The Complainant has not identified a comparator who does not share his identified characteristic against whom he can make a case that he was treated less-favourably.

77. The Complainant manifestly fails to make a prima face case of discrimination or penalisation under the 2019 or 1998 Acts.

78. The Complainant is now attempting to engage in a scattergun approach to obtaining information from the Respondent which is speculative, excessive and intrusive, despite not having attempted to gather information in the ways it would have otherwise been entitled to do so, such as the use of the EE2 form as established by section 76 of the 1998 Act.

79. For these reasons, it is the respectful submission of the Respondent that the Complainant’s complaints under the 2019 Act and the 1998 Act must be found not well founded by the Adjudication Officer. Regarding the 1991 Act

80. The bulk of the payments which the Complainant complains of under the 1991 Act are outside the jurisdiction of the Adjudication Officer.

 81. The remainder is exempted from the operation of section 5 of the 1991 Act because they are the repayment of an overpayment of wages.

82. For these reasons, it is the respectful submission of the Respondent that the Complainant’s complaint under the 1991 Act must be found not well-founded by the Adjudication Officer.

It should be noted that the Complainant has brought separate proceedings under the Parent’s Leave and Benefit Act 2019 . This complaint is set out in Adjudication File no. 59584. Both of these Adjudication Files were heard at the same time.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced by the parties herein in the course of two days of evidence.

The Complainant commenced employment with the Respondent on 10 April 2021 as a Postal Operative at the Dublin 18 Delivery Service Unit (DSU) which I understand is in and around the Foxrock area. In accordance with the Respondent’s policy, the Complainant’s employment was made permanent two years later on the 12 June 2023.

The Complainant was employed under a contract of employment dated and signed by the Complainant and Mr Terry Meegan, the Complainant’s line manager, on behalf of the Respondent, on 12 October 2023. This has been opened to me, and I note that this contract of employment expressly states at paragraph 1 that

“You will be required to be flexible in this position and to undertake such other work as may reasonably be assigned to you by the Company from time to time.”

This is reiterated at paragraph 3 of the contract which provides: 

“You will be required to perform any duties as may be reasonably be assigned from time to time by the Company. You are likely for all or most of your employment with the Company to be at DO 18 but shall undertake such travelling within Ireland as may be reasonably required of you for the fulfilment of your duties.”

Postal Operatives deliver the post to residential and commercial premises for the Respondent postal service. The Complainant noted that even though he only started in 2021 he has moved up in seniority and that there are up to 19 operatives behind him now on the seniority list. The Complainant stated that he is now assigned to Dublin 18 where he does 5 to 6 days a week from 6am to 2pm. He states that this particularly suited him with small children in his house. The Complainant explained that there are up to 34 fixed routes operating out of Dublin 18 depot. Each of these routes seems to have one person assigned to it. There are additionally up to 7 leave reserves who cover all annual and other protected leave as well as unexpected sick leave or force Majeure leave as it arises. There are also split shifts, Office roles and Midnight (night sorting) shifts across this depot.

I can well see that working an assigned route creates a good work life balance and the Complainant had worked route no. 26 for some 2.5 years before the issues which gave rise to this complaint herein arose. This regular route had given him visibility on where he needed to be and allowed him the afternoons to be with his children in the family home. He said if an operative had no assigned route, then each week would be different with split shifts and late shifts and general unpredictability.

The Complainant noted that he hoped to be Health and Safety Officer with his Trade Union.

The Complainant had already availed of Parent’s leave on two separate occasions. Once for two weeks in May of 2024 and again for two weeks in September of 2024. He had received social welfare payments for these periods of time. In early 2025 the Complainant applied to his Line Manager TM  for another tranche of parent’s leave to commence in March 2025. TM gave evidence that it was just not feasible to give the parent’s leave at that time. TM was understaffed and dealing with significant absenteeism and time marked off which situation was not anticipated to improve in March – a seemingly notoriously difficult month. The official reason given was Dates requested not available. I note TM suggested the Complainant might take May dates, but these did not suit the Complainant.

The Complainant re-applied for parent’s leave in May of 2025 for leave to take place over June and July 2025. This was approved on the 14th of May 2025. As I understand it, this second application was dealt with through the HR department. The Respondent evidence is that the Employer wanted not to refuse a second application for a legitimate statutory leave, and TM actively engaged with the HR department to source a new recruit to cover the Complainant in his absence. The Complainant was informed that his leave had been approved and that he needed to train up his own replacement to take over his shift.

The Complainant was happy to do this, though was surprised that as soon as the new recruit (CM) was trained up and ready to take over route no 26 he was sent out to cover it and the Complainant was placed on the leave reservist list. A leave reserve member of staff is a staff member that I previously noted is required to cover all annual and other protected leave as well as unexpected sick leave or force Majeure leave as it arises. I accept that this role is much more unpredictable. The Complainant saw this as a downgrade in his role and therefore a form of penalisation or punishment for having had the temerity to ask for Parent’s leave. The Complainant has also made the case that the actions of the Employer amounts to the Complainant being discriminated against on the grounds of his family status.

There is no doubt that there is a quite complex system of seniority which applies in this workplace. Seniority accrues with time. It was in the interests of trying to fully explain this system to me that the Respondent HR witness provided both the Complainant and me with some sensitive information concerning the rankings of the Complainant as against his colleagues. In considering this information I am satisfied that the Complainant may not be as senior as he had thought that he was. An Post is adamant that it operates a city-wide Seniority recognition programme and the list includes up to 1300 or 1400 persons. The Complainant is simply not senior enough to be able to assert an entitlement to many of the more sought-after routes such as the one he had been operating when he took this latest tranche of leave. The Complainant confirmed in evidence that he knew that the Route 26 which he had been working had not been assigned to him permanently and was in fact the route of a Mr. SR who was out on long term sick leave. Interestingly, SR (who ranks senior to the Complainant) had applied for and been assigned to this route even though he was out on sick leave and this I think demonstrates just how impactful the seniority issue is in this workplace.

The Complainant accepts that the Employer retains an entitlement to assign him duties as might best fit the demands of the company but maintained that he had long since surpassed the rank of leave reserve employee. The Complainant says that it was his own replacement CM who flagged with the Complainant that CM was intended to be allowed to stay on route 26 indefinitely (or until such time as Mr SR came back to claim it). The Complainant’s Manager TM confirmed that this was the plan. The Complainant was very upset and flagged it with his Union representative but gained no traction. Seemingly nobody else accepted that the Complainant returning to the leave reserve list was a demotion. The Complainant believed it was and explained that he had not been a leave reservist since 2023.

In the course of the hearing, the Complainant struggled to accept that he was as far down the seniority list as he was. He understands that each of the 34 established routes has one person assigned to them. However, at any given time any one of the 34 route owners might be elsewhere. There might be long term illness, career breaks, extended leave or secondment to another depot. Thereafter each of the routes has to be backfilled - as in the case of the Complainant backfilling the route owned by Mr SR. A temporary placement does not give ownership rights however as any route that comes fully free will get assigned to whomsoever has the desire and seniority to take it. This is the seniority list across 1300 persons in which the Complainant is currently numbered at 1011 (as of October 2025).

Within his own depot the Complainant believes he is ranked at about 34 but this does not necessarily secure him his own route and the Complainant confirmed that some routes (of the 34 available) he would not want in any event. Also the document presented by the Respondent tend to suggest he is ranked about 36 in seniority.The Complainant did concede that management do try and facilitate everyone as far as is practicable but is bound by the seniority criteria when it comes to doling out of schedules.

The Respondent explained that these issues are collectively agreed with representatives of the recognised trade union, the Communication Workers Union (CWU). The Respondent and the CWU collectively bargain to set agreed protocols for the seniority-based route allocation process. A Postal Operative’s preference for allocation to a particular route is based on a duty competition which is centrally administered across the city of Dublin and is allocated on the basis of seniority. This competition seemingly runs once a year. The “Collection & Delivery Work Practice Change Agreement” between An Post and The Communication Workers’ Union, dated 16 January 2006 was relied upon in this regard. I was in particular directed to the section concerning the Filling of Postal Operative Positions in which the process of a duty competition is used to fill roles within an office. These competitions are held as and when required and take a lot of localised work. This system is more sporadic.

I understand that annual leave is also rewarded on the basis of seniority. Longer serving Employees get their first preference first.

The Complainant is adamant that people behind him on seniority have moved up ahead of him in terms of where they are now being recognised by Management. However, I have no evidence that anyone has been given a role that he (the Complainant) wanted and where the recipient has less time served with the Employer. If people look like they are ahead of the Complainant in ranking then that is simply because of the way they have been inserted by management – to cover secondment, career breaks and long-term illness – and nothing else. Management have the discretion to fill any such role as they see fit. This was precisely how the Complainant first came to take on route 26. It was put to the Complainant that when he was assigned route 26, he was taken off the leave reservists panel to go there, and it was a local management decision which placed him there. He knew or should have known, says management, that this was a pro term or temporary placement. His return to the leave reserve panel cannot therefore have been so much of a surprise to him – say his Employer.

It was put to the Complainant that in the course of the most recent vacant duties competition the Complainant had initially only applied for one duty, that of route 26 which he knew was already assigned elsewhere. He was persuaded by TM to apply for more and put down another six. None of these was assigned to him.

I would accept that the placement of individuals seems confusing and that quite often routes are not worked by the persons assigned to them, so that replacements are drafted in and often there might even be a replacement of a replacement – indeed the Complainant (himself a replacement for Mr.SR) trained in his replacement - CM. The Complainant suggested that the process had the look of management indiscriminately assigning routes outside of the purported guidelines. This assertion was not borne out in the evidence adduced.

The HR business partner JV gave evidence on behalf of the Respondent. She stated there was upwards of 1450 staff spread out among 23 delivery service units. Each unit has many duties and every year there is Dublin wide competition for placement into vacant duties which are advertised across all units. The company-wide Operations Manager deals with this process. Between the annual competitions, vacancies are filled by local management and all postal operatives having a permanent Contract of Employment can apply. JV stated the process is tedious but fair as the criteria are known to be seniority and eligibility. JV also explained that each unit has to have a sufficient number of leave reserve positions so that there is always sufficient cover and there is no question of overtime having to be paid in a unit.

The point is that any operative given a permanent route might fall ill or be otherwise unavailable and management have the discretion to place anyone else into the role. They can call on other assigned operative s or one of the 7 vacancy guys in the depot.

JV confirmed that she was the member of staff with whom the Complainant’s line Manager consulted when there was a request to get someone on site in a hurry to fill the vacancy being created by the Complainant going on leave. She was not clear on why this replacement was placed on the Complainant’s route as soon as he was trained up, with the Complainant being assigned the role of leave reservist for the balance of his time prior to taking the protected leave.

JV confirmed that the seniority list is not generally shared with  the staff  and only the Operations Manager has a need to see this list at the time of the duty competition. Seniority is calculated on the basis of service and the period prior to being made permanent is included as is any protected leave period. JV confirmed that any queries relating to seniority are usually referred to her through the Union representatives.

JV confirmed that an Post actively supports parent leave applications. It’s perceived to be a part of the workplace ethos, and there are strong anti-discrimination policies concerning any leave relating to being a parent.

The delivery service Manager also gave evidence as the Complainant’s line Manager (TM). He says he has no problem with the Complainant and appreciates his length of service as there is a high turnover of staff herein. Also, he said he might have up to 20% of staff out on one leave or another at any given time. He manages this with his leave reserve staff who are invaluable to the process. He tries not to place staff on duties where they have no training or limited training. People expect their post to arrive and he is constantly moving staff around to make sure each day is covered. He has regular staff meetings to get feedback and will shift staff around to facilitate them as far as is practicable, but his primary concern has to be getting the job done. He confirmed he only really references the seniority list when it comes to the duty competition, assigning pro term posts and where there are annual leave clashes. 

TM rejects any suggestion that he was not happy to allow the Complainant to exercise his entitlement to parent’s leave. In fact, he says that he often allows the Operatives to run their parents leave up against annual leave to create extended breaks. The Complainant had availed of this. TM confirmed that Mach 2025 was the first time he had refused Parent’s leave being sought by the Complainant. He had suggested alternative May dates which were not availed of. Thereafter when the Complainant asked in May he says he wanted to facilitate this, and this was why he went to HR and looked for an extra member of staff. As it happens, TM says he subsequently became aware of the fact that the actual owner of route 26 Mr. SR had communicated an intention to return to the workplace in the near future post injury. He knew that there was therefore to be a displacement of the Complainant in any event. This witness gave evidence that once the training of the new recruit CM had been completed, he allowed CM take over the route to work alongside SR as he rehabilitated into the workplace. The established practise is that when someone is trained up on a new duty they automatically work that duty for a minimum of one month. Had the Complainant not been exercising parent’s leave entitlements I assume it would have been the Complainant who worked alongside SR coming back to his route.

I understand that the Complainant took some annual leave before his parent’s leave which ran from 23rd of June to the 27th of July 2025.

TM confirmed that as SR had returned to the workplace by the 27th of July 2025, the Complainant’s pro term assignment to the route 26 was over and it was in these circumstances that he consider the Complainant (due to return on 27th of July 2025) to have reverted to the Leave reserve position from which he had been plucked before his route 26 assignment. On the 28th of July 2025 the Complainant was put on a  6 to 2 delivery on route 25 and was, I understand, covering annual leave in this role on that day.

The Complainant went home sick on the 28th of July having consulted with his Union. The Complainant has not returned to the workplace since that date nine months ago.

TM considered the comparators provided by the Complainant and whom the Complainant says were not treated less favourably by reason of their family status. Two of the proposed comparators are also leave reservists PB and LS and the third AN had been assigned a duty in a competition that the Complainant had not entered.

TM rejected categorically that he had given others preferential treatment over the Complainant. In fact, he says that the early morning shifts are the coveted ones in this workplace, and the Complainant had already been allowed to do two to three years of early morning shifts.

The Complainant was concerned that even in the reserve list he was recorded as number 5 of 7 when considering his seniority he should have been top of the list. TM stated that the numbering is not based on seniority, and nothing should be read into that placement. Leave reserve is also a duty and would form part of the annual duty competition – some people want to be leave reservist. I understand why the Complainant was right to raise the issue of retaining his seniority on the leave reserve panel. If he is the most senior, he should be ranked as such, especially in a workplace that sets such store by seniority and ranking. It may be a question of optics but important to the individual.

On balance, I am not satisfied that eh Complainant has set out a Prima facie case of having been discriminated against for having exercised his right to have parent’s leave and thereby draw attention to his family status. The Complainant sought his leave, and he was granted it. The Respondent went into significant detail to explain how this workplace operates, and I am satisfied that whilst working in this workplace, the Complainant generally understood the idiosyncrasies associated with the reliance placed on seniority across 1400 staff together with the web of confusion created by the need to fill and backfill workplace gaps as they arise. The Complainant knew he was on a duty that would not be his long-term. He knew he would eventually have to be placed elsewhere. The fact that this inevitable change dovetailed with his period out of the workplace on protected leave is simply a piece of unfortunate timing.

The Complainant in the circumstances has not been able to establish that the Employer has discriminated against him by reason of his family status.

The issue raised in the complaint form concerning Data Access Requests are beyond my remit, and I offer no opinion in relation to same.

In addition to the foregoing the Complainant has raised a concern under the Payment of Wages Act. The Complainant says that when he had taken his first block of parent’s leave the Employer had mistakenly paid him his full salary. The Complainant accepted that the money needed to be paid back and agreed to small instalments being made over time. He agreed to pay €10.00 per week. However, the Employer took far greater weekly sums from his salary causing surprise and then financial hardship. The Complainant had not given permission for this action.

Whilst JV was not directly involved in the repayment issue, she did opine that the mix up seems to have been a question of whether the Complainant wanted to return €10.00 per week and management though he meant 10 hours per week. One way or another the money had to be recovered. JV could not confirm what was and what was not made known to him in this regard.

I am satisfied that the Complainant was neither asked for nor did he give his prior consent in writing to any particular deduction to be made. This is a Statutory obligation, the absence of which has resulted in confusion and financial hardship to the complainant.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00072808-001   - The Complainant herein has failed to establish a Prima Facie case of discrimination herein.

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

CA-00072808-002  - The complaint herein is week founded and I direct that eh Respondent pays to the complainant the sum of €1,000.00