Complainant

Respondent

Parties

David  Cuevas Diaz

Apple Distribution International ltd on consent

Representatives

Appeared In Person

David Pearson J.W. O'Donovan LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00073701-001

23/07/2025

On 23 July 2025, the complainant, a customer advisor, and lay litigant submitted a complaint of contravention of the Terms of Employment (Information) Act, 1994.

The WRC acknowledged the complaint on 29 July 2025 and specifically drew the complainant’s attention to the following clause.

“You will see from this letter that the WRC has generated specific complaints from the contents of the selections made in your submitted complaint form. Please check that the specific complaints stated above reflect all the issues you wish to raise with the WRC. Please alert the WRC if there are issues you have raised but for which a specific complaint has not been generated.”

On 29 July 2025, the Respondent was placed on notice of the claim. JWO’ Donovan Solicitors came on notice in the case on 22 August 2025.

The correct legal title for the Respondent was amended on consent at hearing from Apple-to-Apple Distribution International Ltd.

The Complainant had also lodged a Dispute under the Industrial Relations Act 1969 in October 2025, but the company had objected to this case being progressed. I have since learned that the traditional pathway of access to the Labour Court for a binding Recommendation under Section 20(1) of the Act has closed.

At the conclusion of the hearing, I was keen to review the composition of the grievance raised by the Complainant to ascertain whether it fitted into the legislative space permitted by Section 6 (f) of the Act.

The Respondent forwarded the grievance, which did not trigger any further response from the complainant.

The Complainant has worked full time as a Customer Advisor, Spanish language division since September 2022.

In his written complaint of 23 July 2026, he outlined that he was submitting a complaint regarding unfair treatment connected to his annual leave and an internal recruitment process.

“My employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of my request “

The Complainant explained that he has been shortlisted for an internal role and scheduled for interview during the course of approved annual leave. He maintained that his interview was unfairly cancelled due to this annual leave. This was not a practice governed by company policy.

The Complainant submitted that he had been unfairly denied a career opportunity by availing of annual leave as no alternative to cancellation had been offered to him.

“This has resulted in a loss of opportunity and potential career progression, and I believe it constitutes a breach of fair employment practices under the terms and conditions of employment “

The Complainant took the oath to accompany his evidence at hearing.

In a number of loose leaved documents, the Complainant submitted details of the pathway of a 150-day opportunity for rotation to the role of IS and T Engineer July -December 2025.

He attempted to apply for the position on 9 June 2025, later received on 17 June 2025. However, he had difficulty completing the process. On 2 July 2025, he was invited to interview on 8 July 2025 and confirmed availability for online attendance from annual leave.

On 4 July 2025, the complainant was informed that the interview was not permitted during annual leave. He sought to counter this but was unsuccessful as the Company closed the interview process on 8 July 2025.

The Complainant raised a grievance on 10 May 2025, where he sought:

– A formal investigation into what occurred – A written explanation of why I was excluded – Consideration of appropriate monetary compensation for the missed opportunity and resulting stress.

In his evidence, the complainant was clear that he had not made an application for more predictable working conditions under the Terms of Employment (Information) Act, 1994.

He clarified that his omission for interview for the rotational posting of IS and T Software Engineer has caused him major concern. He had been willing to participate at interview but was unfairly denied the interview without clear linkage to a justifiable policy.

His Area Manager was on leave. He sought to persuade the company to change course and include him.

When this did not happen, he lodged a grievance on 10 July 2025 on his unnecessary exclusion from the process. He explained that he believed that he had been treated in a discriminatory manner and unfairly excluded.

Later in the hearing, the complainant explained that he did not wish to engage in direct dialogue with his Area Manager regarding his highlighted error on thinking annual leave distanced him from attending interview.

He remains dissatisfied by his exclusion in July 2025.

He sought compensation for the missed experience.” It cost me a lot “

The Complainant is currently out of the business on approved leave.

The Respondent operates a large IT business and has argued that the complaint is misconceived as the Terms of Employment (Information) Act 1994 did not confer any jurisdiction on the Adjudicator for the complaint made by the Complainant. He had not made application under Section 6(f).

It was common case that the complainant has worked for the Respondent from 22 September 2022 as a Customer Service Agent. A permanent contract of employment was exhibited.

Mr Pearson for the Respondent contended that the complaint was filed in this case is not judiciable under the Terms of Employment (Information) Act 1994.

The Respondent outlined the process which accompanied the management of the grievance raised by the complainant and exhibited a copy of the grievance outcome report.

This report dated 16 September 2025 captured the Investigation background which placed the complainant in the role as objector to his exclusion from an interview process for an internal role due to concurrent annual leave. The Complainant sought monetary compensation as a result of causative stress.

The report captured a conversation with the complainants Area Manager who detailed that “it was his understanding that that while an employee was out on leave, including annual leave, that we would not arrange interviews and disturb them during their leave. He was not aware that the process would be concluded by the time the employee returned. “

He offered to meet with the complainant to explain and apologise for the error, but the complainant declined this.

The grievance outcome did not find for the complainant. The Company contended that the recruitment process has progressed quickly due to business needs.

The Respondent did not introduce witnesses to hearing and consistently maintained the complaint as framed was misconceived.

The Respondent highlighted that the company has already indicated that they continue to the complainant in his plan to diversify at the business.

However, the Adjudicator lacked the jurisdiction to decide on the claim made, which is misconceived.

I have been requested to make a decision in this case in accordance with the Act the complaint was referred under, namely the Terms of Employment (Information) Act 1994

In reaching my decision, I have had regard for all written and oral submissions alongside the evidence adduced by the Complainant at hearing.

Transition to another form of employment

6F.— (1) Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

(2) An employee may, once in any 12-month period, request a form of employment in accordance with subsection (1).

(3) An employer shall provide the reasoned written reply referred to in subsection (1) to an employee within one month of the request by the employee.

(4) An employer may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged.

(5) This section shall not apply to seafarers or sea fishermen.

This is a recent amendment to the Act.

Inserted (16.12.2022) by European Union (Transparent and Predictable Working Conditions) Regulations 2022, S.I. No. 686 of 2022, reg. 12.

The Complainant in his sworn evidence confirmed that he had not made application for a form of employment with more predictable and secure working conditions. Instead, he told the hearing that he had made repeated attempts to enhance his career with the respondent, and he formed the view that this exclusion from interview in July 2025 was further manifestation of this. He had not sought to cancel his annual leave to attend the interview.

 He shared his frustration that his claim lodged under the Industrial Relations Act 1969, October 2025 had been closed and clarified that he had been prepared to participate at interview from home. His hours of work at the call centre through Spanish were 7 am to 7 pm as opposed to 7am to 3 pm and 12 pm to 7 pm on the rotational 150 days posting. The complainant was unaware of the hours assigned to the rotational posting, which attracted the same salary he earned.

He accepted that this was a cyclical rotation, where he had been offered assistance and direction to prepare for application for the November 2025 application process.

I have established that that the Complainant did not make a request under Section 6 (f) 

a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

As the complainant had a permanent job on fixed hours, his application for a rotational 150 hours posting cannot co-incide with the spirit of the intention of the application of Section 6 (f) for more predictability. The complainant is chasing a promotional opportunity.

He sought a monetary remedy not permitted in Section 7 of the instant Act.

For illustrative purposes. I have referred to two recent Adjudication cases which may go some way to demonstrate what the Law is seeking to achieve and protect under section 6 (f)

Saratori v CPL Solutions ltd t/a Covalen ADJ 55181, March 2025, where my colleague Pat Brady explored whether the complainant had completed her probation so as to ground a complaint under this section.

In finding against the complainant on this occasion, he recorded:

“Potential future complainant should note that they will have to meet all the requirements of the legislation both completing the eligibility period, making the complaint and allowing an employer the permitted time to give their reasoned response before referring a complaint to the WRC.

This is distinguished from Condon v Maynooth University, NUI, Maynooth ADJ 46767, June 2025, where my colleague Conor Stokes found for the complainant.

On this occasion, Mr Stokes found that section 6(f) could be applied to the facts as presented, as he accepted the request for more predictable and secure working conditions had been made, but not met by the respondent within the statutory time limit, thus justifying a monetary award.

In the instant case, the complainant raised a grievance regarding his perceived exclusion from interview. He does not appear to have engaged with the employer as they reached out to seek his input in preparation for the next round of rotation in November 2025.

I found this unusual given the strength of feeling expressed by him in respect of self-development and role expansion rather than in seeking a more predictable and secure working condition.

I have considered whether I should dismiss this case in accordance with Section 42(1) of the Workplace Relations Act, 2015? I accept that the complainant is a lay litigant seeking to pursue his case. I cannot establish that the claim made is either frivolous or vexatious.

However, the complainant has been forthright in his admission that he did not apply for the terms of section 6 (f) of the Act, from where my jurisdiction is derived.

I would have preferred if the complainant had engaged with his Area Manager in charting a common goal for his future role expansion. I am assured this route remains open to him on his return from his approved leave.

I must find that I lack the jurisdiction to decide this case and cannot progress the matter any further.

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.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with Section 6 of that Act.

I must find that I lack the jurisdiction to decide this case and cannot progress the matter any further.

Section 6 (F) of the Terms of Employment (Information) Act 1994, lack of jurisdiction.