ADJ-00021993

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021993

Parties:

	Complainant	Respondent
Anonymised Parties	General Manager	Sales Distribution

Representatives

Self

Marcus Dowling BL instructed by Paul Meagher Meagher Solicitors

Complaints:

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-00028782-001	30/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00028782-002	30/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00028782-003	30/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028782-004	30/05/2019

Date of Adjudication Hearing: 28/02/2020

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act 1998 as amended following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The respondent company is involved in the wholesale purchase and sale of videogames. The complainant employee over a period of time assumed greater managerial responsibility. The complainant states she was discriminated against on the ground of gender relating to equal pay and alleges other grounds of discrimination. In addition, the complainant alleges that the respondent company has breached the Terms of Employment (Information) 1994 Act and the Organisation of Working Time 1997 Act.

Summary of Complainant’s Case:

The complainant stated that she was appointed General Manager of the business in 2017 on a basic salary of €69k and with promise for a review in the future. The previous male incumbent’s last annual remuneration was €220K. She also stated that as General Manager, her remuneration was significantly below a male Marketing Executive’s remuneration who was engaged on a contract for service. Her work was of equal value yet remunerated significantly less for the work she performed. She also made complaints about being expected to work through her lunch breaks; and not receiving notification of a change in her contract terms and being discriminated against based on gender regarding other matters as well.

Summary of Respondent’s Case:

The company states that the complainant was a valued employee. Her principal duties up until she was appointed to the General Manager role on an interim basis, was purchasing and logistics. Her appointment was based on the requirement to have an acting General Manager principally for governance reasons. However, her role and the work that she performed was fundamentally different to both of the two male comparators who were responsible for the overall strategic and commercial direction of the company with quantifiably more responsibility in terms of Sales and Gross Profit. The difference in remuneration can be demonstrated to be justified based on the work performed as assessed by objective criteria relating to skill, experience and responsibility. The other complaints have no basis in fact or are of a minor contravention and are out of time.

Findings and Conclusions:

1. Complaint CA-00028782-001

The respondent states that the complainant must prove the primary facts upon which she relies in seeking to raise an inference of discrimination. In her complaint form the complainant names two comparators:

1. A Previous General Manager

2. Marketing Consultant executive.

The Burden of Proof is detailed at Section 85(a) of the Employment Equality Act 1998 as amended:

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The complainant claims that her role was of equal value when compared to:

1. The Previous General Manager who resigned in July 2017

2. A Contractor hired to provide Marketing and Business to Business Sales Management Expertise in July 2018 nearly a year after the General Manager left the company.

The complainant states that she was appointed to the General Manager role in September 2017 on a salary of €69,000 per annum and with no definitive entitlement to sales commission. She states that the previous male General Manager was on a remuneration package of €220,000 per annum and a male marketing/sales executive contractor was being paid equivalent to a basic annual salary of €168,000. Based on these two named comparators, the three roles while they have some similar duties, they are not the exact same roles and vary in the work performed and their respective responsibilities. The Employment Equality Act 1998 as amended defines like work at section 7(1); work of equal value is defined by the Act at 7(1)(c):

7.— (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

(3) In any case where—

(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),

then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator. The respondent stated that at no stage of her employment with the company despite any title or label given was she engaged in like work with either of the two named comparators. This was including when she was acting General Manager during a transitionary period. The complainant was appointed to a General Manager role in September 2017 and stated she continued in that role until she resigned from the company and her last day of employment was the 30th November 2018. However, the company stated that when the General Manager resigned in July 2017 a job search began and it is not unusual for such a search to take months to complete. Allowing for governance requirements the complainant was designated as the General Manager for the business. However, this was not the same role as the previous incumbent who held responsibility for the strategic direction of the company, sales turnover and profitability and maintaining and developing business relationships with suppliers and customers. The complainant’s role while always valued was substantially different and primarily operational. It was not a strategic role with overall responsibility for developing the business. The company had consistently increased the complainant’s pay. However, it was never the case that the complainant possessed the same experience, skills and knowledge as the previous General Manager. The owner maintained a very hands-on approach during the transitionary period. The previous General Manager had developed extensive business relationships with suppliers and customers. The complainant was designated a General Manager for governance reasons as the search continued to appoint an experienced senior executive with relevant business experience. The complainant claimed that the previous General Manager was paid a compensation package of €220K significantly above her compensation. The complainant alleged that her work was of equal value to those of the two named male comparators. The complainant commenced her employment as a logistics co-ordinator in March 2011. It is claimed that after a few weeks she was asked to carry out accounting duties arising from the resignation of a staff member. Over several years her duties expanded to include the following:

· Logistics coordinator

Ø dealing with incoming and outgoing shipments

Ø stock management

Ø documentation

Ø negotiating transport and warehouse contracts

· Accounting assistant

Ø Banking and payments transactions

Ø Revenue administration

Ø VAT Returns

Ø Auditor interface

Ø Credit card reconciliations

Ø Travel arrangements

Between 2011 and 2017 the complainant received 3 salary increases.

1. In 2013 her salary increased from €33k to €36K or 9%

2. In 2014 to €43k or 19%

3. In 2017 to €51k or 18.6%

In June 2017 the then General Manager served notice to resign. The General Manager had a basic salary of €120k and bonus/commission of €100K.

The complainant stated in her submission at page 7: “many customers and suppliers have heard rumours about disagreement between (General Manager) and the owner. I became a first person of contact for all of them to ensure them that the company is fine.” “As (General Manager left), one of our biggest suppliers decided to cease trading with GL, greatly reducing turnover and profit.” In September 2017 the owner asked her to fill the role of a General Manager and to take care of day to day buying and selling. Her salary was increased to €69K at that time. The company stated this was an interim measure and the search continued to fill the permanent General Manager role. In January 2018 the owner informed the complainant that they may have found a new General Manager to run the business. Later the candidate chosen according to the complainant, would not relocate to Ireland and was retained as a contractor. He would lead marketing and sales strategy for the company. The contractor commenced working with the company in July 2018. The complainant stated that during the period January to July 2018 she completed €5.24 million in sales. In July 2018 when the new sales contractor joined the company, the owner reassigned suppliers and customers between the complainant and the contractor. The contractor received monthly payments of £12.5k (sterling) while the complainant received €5.75k per month, which she stated was proof of gender discrimination and equal pay discrimination. The complainant stated that the consultant was primarily involved in sales:

· Buying and selling stock

In contrast the complainant stated that she was responsible for:

· As General Manager of the Company for:

ü Governance

ü Revenue relationship

ü Overall company oversight and accountability

ü Effective day to day management of the company at all levels

ü Direct liaison with owner concerning all key business to business relationships, decisions, sales and profit performance

· Buying and selling stock

· Managing 2 staff

· Overseeing logistics

· Overseeing accounting

The company states that the marketing/ sales contractor was engaged in more than sales activity as detailed in their service agreement:

· A comprehensive range of marketing duties:

o Marketing strategy

o Marketing campaigns

o Marketing budget

o Publish Marketing material

o Plan and implement promotional campaigns

o Brand management

· General leads-improve lead generation campaigns

· Business to Business sales

The complainant sought to be paid commission for the time she led sales activity during 2017 and the first half of 2018. She claims that this was resisted by the company. The company informed her that they were working on her commission structure in August 2018. On October 4th, 2018 the complainant gave notice to her employer of her intended resignation because she was underpaid for the responsibilities she was expected to carry out; failure to equally value the role she held when compared to the previous General Manager and less favourable treatment over a protracted period by the owner of the business relating to her claim for sales commission. The newly hired contractor left the company during October 2018 and about the same time the complainant handed in her notice. The company attempted to dissuade the complainant from resigning and after several offers a final offer was made in November as follows:

· €135K basic salary

· 7% commission on gross profit excluding deals made by the owner

· A retrospective payment of €50K

The complainant terminated her employment after serving her notice period on 30th November 2018 alleging her employer failed to pay her the same rate of remuneration as the previous General Manager and detailing other grievances as well relating to her employment.

The 1998 Act at section 19(1) details:

19.— (1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section ‘relevant time’, in relation to a time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a gender (being As or Bs) at a disadvantage in respect of remuneration compared with other employees of their employer.

(b) Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1) as complying or not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for determining whether this subsection applies in relation to A or B.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

In her complaint to the WRC the complainant has named two comparators, the previous General Manager and the Marketing Sales Executive who was a contractor working for the company on a monthly payment of circa €14000. This contract while a contract for service is a contract of employment for the purposes of the Employment Equality Act 1998.

At section 2 relating to interpretation the Act states:

‘contract of employment’ means, subject to subsection (3) —

(a) a contract of service or apprenticeship, or

(b) any other contract whereby —

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;

And section 2 also defines remuneration as: “remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;

And at section 7(3) concerning like work it states:

(3) In any case where—

(a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

(b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),

then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator. Based on the following facts the complainant has made out a prima facie case that gives rise to an inference of pay discrimination with reference to the two named male comparators:

· The complainant was appointed to the role of General Manager in September 2017, the most senior executive role in the company a position she held for 15 months when she resigned from the company, it was not an interim or temporary arrangement.

· She had overall responsibility for the successful management of the business and prima facie performed like work based on her involvement in sales and buying; logistics; financial reporting and governance.

· In November 2018 the company determined the value of the complainant’s General Manager’s role to be €135k and to include sales commission of 7%. However, she had held the position of General Manager since September 2017 to October 2018 on a salary of €69,000. She declined the offer made by her employer consisting of a base salary of €135k and a commission plan of 7% on certain sales and including a retrospective payment.

· Only when she handed in her notice of resignation was any serious attempt made to address the factual inequity in her remuneration and the absence of any transparency in pay determination with reference to the male comparators, that inequity she attributed to discrimination based on gender.

· While the offer to substantially increase her overall remuneration was declined she attributed that rejection, to the breakdown in confidence and trust in her employer arising from the failure to equally value her role when compared to the previous male incumbent of the position of General Manager and the more recently hired male marketing/ sales contractor.

· The previous General Manager was on a total annual remuneration of €120k basic salary and €100k in commission or bonus payments which amounted to €220k while the complainant was on an annual salary of €69k and a bonus payment of €5k for 2016 and 2017. On resigning she also received a bonus/commission payment on leaving her employment of €24,421.

· The male marketing/sales contractor hired in July 2018 at face value would appear to be carrying out a job of less value to that of the complainant in her role as General Manager based on skill, physical or mental requirements, responsibility and working conditions; while being paid significantly more than the complainant. He was on a monthly flat payment of €12500 sterling (and at a Sterling Euro conversion of €1.12 Euro to the pound using a historic rate) that equates to €14000 and the complainant was being paid €5750 per month with no certainty concerning her entitlement to a sales commission or bonus payment at that time. Based on these primary facts there was a clear difference in treatment between the complainant and the two male comparators and an absence of transparency in the employer’s pay determination that is sufficient to raise a prima facie case of discrimination. It is clear from the complainant’s account of the very significant negative business consequences stemming from the General Manager’s resignation that the role was primarily commercial in nature and carried very significant responsibility for growing sales and increasing gross profit. Where a prima facie case is established based on primary facts that give rise to an inference of discrimination and from which it may be presumed that there has been discrimination, it is up to the respondent to prove the contrary. The respondent based on the evidence in their submission and at the hearing, has proven that the complainant’s role of General Manager and the work that she performed when compared to the previous General Manager’s role of July 2017 and work that he performed, the roles sharing the same name, were not of equal value having regard to the following:

· Skill

· Physical or mental requirements

· Responsibility and working conditions

At July 2017 while the complainant’s role had grown very significantly; she was not responsible for overall commercial business direction either with suppliers or customers. The owner of the business had taken on that responsibility, while he attempted to re-organise his company after the General Manager’s resignation. While the complainant’s new role was an important senior role including governance for the company; the skill, mental requirements and responsibility did not equate to having the primary responsibility to commercially trade successfully both in terms of buying and selling. The complainant had some commercial responsibility along with other duties; however, they did not equate to those held by the previous incumbent. It is highly likely that in time her responsibilities would have encompassed total commercial responsibility, but that was not the case when she held the title of General Manager. In terms of relevant business experience the General Manager had significantly more senior experience than the complainant. The breath of the sales and business responsibility of the then General Manager role and its importance was evidenced when the resignation occurred, and key business partners became concerned about the business and one key supplier terminated their relationship resulting in a decline in both sales and gross profit. The General Manager had acquired over many years very significant sales management experience. In contrast the complainant had significantly less sales management experience. In fact, the complainant’s experience both with the respondent and prior to joining the company was primarily in logistics, supply chain and transport management. The General Manager was incumbent in the role for 8 years gaining very significant senior executive experience for running an entire business. That was clearly not the case with the complainant when she assumed the role of General Manager. She had the potential to take on those responsibilities and to perform them and to be given total commercial responsibility as her business knowledge and experience developed. However, that was not the case during her time as General Manager. The complainant while appointed into a General Manager role and a very much expanded role in September 2017 with senior executive managerial responsibilities, she did not perform the same work as the previous incumbent. A careful analysis of her duties at that time show that the workload while high, did not attract the same level of responsibility as the previous incumbent. In her new General Manager role, she was not commercially directing the company, the owner in fact was doing this. The new marketing /sales consultant performed some of this role as did the complainant in her role as General Manager. However, she did not have sole responsibility for buying and sales along with the strategic management of the business when compared to the previous General manager. However, in the case of the marketing/sales consultant hired in July 2018 neither did he while being paid significantly more than her. The complainant is seeking to be paid the same sales bonus or commission as the previous General Manager and claims that the failure to pay her commission is due to gender discrimination. The facts do not support that contention. The average gross sales per month for the complainant was markedly different of the order of 70% less or to put it another way 30% of the previous incumbent’s monthly sales. The monthly gross profit for the business declined by 70% after the resignation. The commission paid to the previous General Manager was based on a much higher level of sales and profitability. While the complainant held the title of General Manager, they were not the same job or role. The roles were not equal having regard to skill, physical or mental requirements, responsibility and working conditions. The comparator role performed work of greater value based on their overall responsibility for commercial performance; commercial and business planning; their very significant sales management experience and the actual commercial work performed that had a direct impact both on gross sales and gross profit, were markedly different. In contrast the complainant’s General Manager role did hold the most senior executive role from September 2017 and expanded substantially when compared to her previous job and did include sales; logistics; financial and office administration and was likely to expand to a similar role of responsibility to that of the previous General Manager, it had not done so during her period of holding the role. The senior executive work that she performed when carefully analysed was not of equal value as set out in the Act; as her overall level of commercial responsibility and the commercial work that she performed was not of equal value to that of the previous incumbent. The complainant may have been initially unfairly treated having regard to an increasing workload and very substantial increase in responsibility; however, her role when compared to the previous General Manager’s role were not equal. However, in November 2018 the company did make a very substantial offer to the complainant that on the face of the terms appears fair and reasonable. The second comparator a marketing/ sales contractor began working with the company in July 2018 and left after a few months. It was a contract for service. The sales activities were divided between the complainant and the contractor. The reporting relationships were not clearly delineated; however, on the facts the owner of the business was directing both the complainant and the work of the marketing/ sales contractor. It is up to the respondent to show that this role when analysed having regard to skill; physical or mental requirements, responsibility and working conditions was of greater value as the complainant has made out a prima facie case based on primary facts from which it may be presumed that there has been discrimination and it is for the respondent to prove the contrary. On the facts the complainant was appointed as General Manager in September 2017 and became the most senior executive in the company. Her role at that time expanded significantly. The work that she performed was as the most senior company executive, having the most responsibility for the management of the company, while her annual salary was €69,000 and bonus of €24,422 paid in November 2018 and the marketing executive’s equivalent salary was €168,000 and work that he performed was not prima facie of equal value having regard to the following:

· Skill

· Physical or mental requirements

· Responsibility and working conditions

From these facts it can be presumed that there has been discrimination in the absence of transparency relating to pay determination. While evidence was given principally based on the job duties to justify the difference in pay between the contractor and the complainant General Manager, I have determined that they do not reasonably explain the difference and adequately provide a transparent and objective explanation to demonstrate how the remuneration for the marketing/sales comparator was determined and so markedly different for the work that he performed when compared to the work being performed by the General Manager, who was the most senior executive in the company. The respondent company did ultimately make an offer of €135k, a commission payment and other benefits in November 2018 to retain the complainant and in fact paying a higher base salary than to the previous General Manager who was on a basic salary of €120k. The bonus or commission analysis and evidence given at the hearing, proved that commission for the previous General Manager was performance linked and varied from year to year and could go up or down. The General Manager consistently received significant payments ranging from €60k to €100k in recent years and always received a substantial bonus. The complainant did receive bonus payments and while substantially less, the difference in payment was explained in the value of sales and profit generated by the previous General Manager. In the last new contract offer made by the company to the complainant, the commission scheme for the role of General Manager was comparable while different. The company has proven that the commission payments and differences in bonus/commission relate to factors other than gender. The claim for the same annual sales commission payment of €100k made to the previous General Manager is rejected as the difference is explained on the fact that the sales and profit performance are markedly different and do not relate to gender but relate to sales and gross profit performance. Section 19(5) of the Act states: “Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees”. The complainant was not discriminated against on the ground of gender regarding the General Manager comparator role, as her role was not of equal value. The complainant has established facts from which it may be presumed that there has been pay discrimination having regard to the absence of transparency in pay determination between her and the marketing/sales contractor. The respondent has not provided an adequate explanation for the difference in pay between her role and that of the marketing/ sales contractor. In the absence of an adequate explanation I determine that the complainant was discriminated against on the ground of gender and is entitled to the same remuneration as that of the marketing executive/ sales contractor. Section 19 (5) of the Act provides for differences in remuneration other than based on gender. In other words, in this case a role that is determined to be of greater value to another can be paid less if grounds substantiating that difference is proven. The burden of proof once a prima facie case has been established is on the respondent to prove the contrary as set out at section 85A.— (1): “Where In any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”. Therefore, to displace that presumption of discrimination evidence and facts must be provided by the respondent that are deemed to be sufficient to ‘prove the contrary’. While the respondent relied on the difference in career backgrounds and argued that the two roles were fundamentally different to justify the pay difference other than gender; on the facts the respondent has not proven why the complainant was paid significantly less, while performing a role, prima facie of greater value which included sales. Therefore, I have determined that the complainant has been discriminated against on the ground of gender and her entitlement to equal pay, in the absence of transparency relating to pay determination. The complainant since September 2017 was prima facie in a role equal to or of greater value than that of the male marketing executive contractor comparator role when she was appointed General Manager having regard to the specific duties that she performed when compared to the duties of the marketing executive contractor. That contractor role attracted remuneration of €14000 per month while the complainant was being paid €5750 per month. The commission payment she received at the end of 2018 of €24,421.90 for 11 months equals to a monthly payment of €2220.17. Therefore, I assess her monthly remuneration to be €7970 for the period January to November 2018. This means she was being paid €6030 less that this male comparator during this period. She also received a small bonus in 2017 of €5000 and dividing by 12 this equates to €416 per month and for 4 months she was on remuneration of €6166 and being paid €7834 per month less. Her total arrears in remuneration is € 7834 x 4=€31336 and €6030 per month less x 11=€66330. The total arrears in remuneration is €97666.

2.Complaint CA-00028782-002

The complainant further claimed that she was discriminated against by reason of Gender and that her employer discriminated against her in conditions of employment and treated her unlawfully by harassing her. She stated that the most recent date of discrimination was the 24th of September 2018. The complaint was received by the Workplace Relations Commission on the 30th of May 2019. The respondent stated that the complaint was made out of time and citing from the Labour Court case Cementation Skanska v Carroll DWT 38/2003 and the test to be applied where an extension of time is sought based on a reasonable cause: “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delayand afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense” The respondent stated that because the complainant raised the issues previously as part of her resignation and the fact that she commenced work with another company within the 6 month period, there can be no reasonable excuse for the delay to present the claim within the 6 month period that makes sense. Counsel for the respondent stated that before evidence could be heard regarding the merits or otherwise of the claim, the Adjudication Officer must first make a preliminary decision about whether the claim was or was not statute barred. It was explained that was not generally the practice at the WRC, as the general principal is that all issues arising in a complaint should be disposed of in a single set of proceedings. However, counsel insisted that there was a statutory obligation on the Adjudicator to make a preliminary decision and not to proceed with the substantive hearing. Counsel cited the Supreme Court case County Louth Vocational Educational Committee v Equality Tribunal [2016] IESC 40. In the High Court the basis for the Supreme Court appeal the two principal issues for determination in the proceedings were:

4. The Issues

4.1 Two principal issues arise for determination in these proceedings. The first is whether the respondent has jurisdiction to hear evidence at the hearing of the notice party’s allegations going back over ten years which were not contained in the Form EE1? Is the jurisdiction of the respondent to investigate a complaint limited to a consideration the incident occurring on the two dates specified in the form only? The second issue is whether the exclusion of the applicant’s witnesses from the hearing room constituted a breach of fair procedures. The Supreme Court case is relevant in detailing that “If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been ‘lawfully referred’ to the Tribunal”. In the Conclusion of County Louth Vocational Educational Committee and The Equality Tribunal and Pearse Brannigan (Notice Party) [2009] IEHC 370 at 6.1 the Court stated: “The Aer Lingus Teoranta v. Labour Court (Unreported, High Court, 26th February, Carroll J. (Unreported, Supreme Court, 20th March, 1990) case supports the argument of counsel for the respondent who said that the holding of a preliminary hearing was not necessary to deem the complaint receivable and that it was permissible for the respondent to consider the compliance with the statutory conditions of the case as part of the substantive hearing.” The position as set out in Aer Lingus Teoranta v Labour Court was applied regarding the investigation of this complaint and the conditions precedent raised by counsel were considered as part of the substantive hearing. This WRC wrote to the complainant regarding the fact that the complaint would appear to be out of time and by email dated 30th June 2019 the complainant stated that the last incident of alleged discrimination occurred on the 29th of November 2018: “Please note that the last discriminatory comment toward my person was made by the Owner, Mr on Thursday, 29th of November 2018 in the office. It was a day that I was asked to return a company mobile and access keys. The owner asked me if I went to see a “shrink” (psychiatrist) in relation to my refusal to stay in the company as well as him saying that he want me to go to a health and wellness clinic in Spain for a weight loss programme.” At face value this seems to be an amendment to her submission; however, on careful reading of her detailed written submission the incident referenced in the email alleged to have occurred on the 29th of November 2018 is in the submission as an allegation. The complainant who is not an Irish National and is unrepresented has also stated when answering a specific question on the complaint form that the most recent date of discrimination occurred on the 24th of September 2018. Allowing for the fact that the most recent date of discrimination of the 29th November 2019 is specifically detailed in the complaint submission that was received on the 30th May 2019, it is just and fair that the most recent date of alleged discrimination as contained in the written submission, should be accepted to be the 29th of November 2018 and not the 24th of September 2018.

Section 77 (5)(b) states:

“On application by a complainant the Director General of the Workplace Relations Commission, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.” In Cementation Skanska the Court also stated: “The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.” The 6 month time limit to make a claim, required that the complaint was received by the WRC on the 28th May 2019 as section 77(5)(a) of the Employment Equality Act 1998 as amended states: “A claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of most recent occurrence.” Complaints referred under Section 41 of the Workplace Relations Act are subject to time limits as detailed in that Act:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Kerr opines at [28.24]Employment Law Bloomsbury 2nd Edition that: “The case law of the Labour Court demonstrates that, with the exception of employment equality cases, a complainant must not only show that ‘reasonable cause’ was present but also that it prevented or inhibited the timely presentation of the complaint. Section 77(5)(b) of the 1998 Act does not require that reasonable cause prevented the claim from being lodged within the initial period”. The complainant was afforded an opportunity to provide a reasonable cause to explain the delay and while the date of the most recent occurrence of alleged discrimination was on the 29th November 2019, the complainant has not provided any reason for the delay, even if that explanation be a slight explanation (as the claim is still not within time based on this date). The complainant wrote to the respondent on 13th of January 2019 a very detailed letter of complaint and specified on a spreadsheet her actual loss or claim for compensation under separate headings of claim. This letter is a record of dispute between the parties detailing the nature of the claim and loss under several headings and yet this claim was not made on time. In the absence of any reason to explain why the claim was not referred before the end of 6 months from the date of occurrence of the alleged discrimination; the discretion to extend the period does not arise and therefore I determine that the claim is statute barred.

3 Complaint CA-00028782-003

The complainant stated that she never received a new contract or list of duties since becoming a General Manager of the company in 2017:

“I was not notified in writing of a change to my terms of employment” The respondent stated that while the complainant’s role changed it was not envisaged that it would change with any permanency. On that basis the respondent didn’t amend the complainant’s terms and conditions. The Terms of Employment (Information) Act 1994 as amended states:

Notification of changes

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

And at Section 7(2) a complaint to an adjudication officer under Section 41 of the Workplace Relations Act 2015:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6 or 6 c or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 .

Section 41 of the Workplace Relations Act 2015 states:

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

There were two changes to her contract during the time of being General Manager:

1. A salary increase to €69,000 effective from the 1st of September 2017

2. A commission/bonus payment that she was pursuing without any confirmation of same until payment was received as part of monies owed at resignation effective 30th November 2018 ( Hearing Booklet: 1. Schedule of Salaries/bonus payments for General Manager and Complainant).

The contract ended on the 30th of November 2018. Section 41 states:

The employer was in breach of the Act one month after the change took effect and continued to be in breach until the contract ended, as they accept they didn’t comply with the provision. The last date of contravention occurred on the 30th of November 2018 as the employment contract ended on that date. As time runs from the 30th of November 2018 being the date of the last contravention and the claim was presented to the WRC on the 30th May 2019, the claim is statute barred.

4. Complaint CA-00028782-004

The complainant stated that her colleagues and superiors demanded that she work through her lunch breaks. Her complaint was received on 30th May 2019. The respondent stated that pursuant to section 27 of the Organisation of Working Time Act 1997, the complainant must make a complaint within 6 months of the date on which the breach is alleged to have occurred. They state that time runs from the date of each alleged breach and not from the date of the latest breach. The complainant was on sick leave for the last two weeks of notice and hence the breach could not have occurred during the relevant 6 month period as she was absent from work and the only day that the complainant could make a claim for was 30th November 2018 and she was absent from work on that date.

Section 41 of the Workplace Relations Act 2015 states:

The complainant has not particularised her claim with regard to dates of breaches in contravention of the Act. The date of the last hypothetical breach was the 30th of November 2018; however, the complainant was absent from work on that date. The complaint was received by the WRC on the 30th of May 2019. As no breach could have occurred on the 30th November 2018, the last date for a breach subject to section 41 (6) and in the absence of an application for an extension of time subject to section 41(8) I determine that the complaint is statute barred and cannot be entertained.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Act 1998 as amended requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

1. Complaint CA-00028782-001

The complainant was not discriminated against on the ground of gender regarding the General Manager comparator role as her role and that of the comparator were not of equal value. While her role had significantly expanded, and she became the most senior executive in the company in September 2017; I am satisfied that the respondent has proven that the previous General Manager had in fact performed work of greater value. He had overall commercial responsibility for the company and the complainant had not. In time it is likely that she would have assumed the overall commercial responsibility for the company; however, during her period while holding the role, that commercial responsibility was dispersed between her, the marketing executive and the owner. The complainant was discriminated against on the ground of gender regarding the male Marketing Executive Contractor comparator as her role prima facie was of equal or greater value than the comparator. The complainant has established facts from which it may be presumed that there has been pay discrimination having regard to the absence of transparency in pay determination between her and the marketing executive contractor comparator. The respondent has not provided an adequate explanation for the difference in pay between her role and that of the male marketing executive contractor. In the absence of an adequate explanation I determine that the complainant was discriminated against on the ground of gender and is entitled to the same remuneration as that of the male marketing executive contractor. The respondent relied on the difference in career backgrounds and argued that the work performed by the marketing executive was fundamentally different to justify the pay difference other than gender. The reliance by the respondent on the marketing executive contractor performing different work, has not proven why he was paid a greater amount, as the complainant has established prima facie on the primary fact of being the most senior executive in the company that she performed a role of greater value which also included sales. It is not credible that marketing work performed by the comparator would trump and had greater monetary value to the General Manager work that she performed absent data to prove that proposition. On the facts the complainant was appointed as General Manager in September 2017 and became the most senior executive in the company. Her role at that time expanded significantly. The work that she performed was as the most senior company executive, having the most responsibility for the management of the company, while her annual salary was €69,000 and bonus of €24,422 paid in November 2018 and the male marketing executive’s equivalent remuneration was €168,000 and work that he performed was not at face value of equal value (allowing for company hierarchy) and having regard to the following:

· Skill

· Physical or mental requirements

· Responsibility and working conditions

This is particularly so when consideration is given to the value attached to her General Manager role by the company in November 2018 when she was offered a salary of €135k, 7% commission on gross profit on her sales only, a retrospective payment of €50k, a preferential loan and paid time off from December 1st, 2018 to January 15th, 2019 on the new salary. And section 2 of the Employment Equality Act 1998 as amended also defines remuneration as: “remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment; This package offered in November 2018, 15 months after being appointed General Manager, is equal and most probably greater (allowing for the value of the commission, loan and paid time off) to the value of the marketing executive remuneration paid from July 2018, having regard to its total value as provided for in the definition of remuneration. It tends to show that the company at that time accepted that the complainant was underpaid when compared to the comparators. In the case of the male marketing executive the company has failed to provide an adequate explanation for the difference in remuneration for the relevant 15 month period. The respondent once the presumption of discrimination had been established must prove the contrary. As the respondent has not proven to the contrary based on the primary facts that gives rise to an inference of discrimination and it may be presumed that there has been discrimination; therefore, I have determined that the complainant has been discriminated against on the ground of gender and her entitlement to equal pay, based on the absence of transparency relating to pay determination is as follows: The complainant since September 2017 was prima facie in a role equal to or of greater value than that of the marketing executive contractor comparator role when she was appointed General Manager having regard to the specific duties that she performed when compared to the duties of the marketing executive contractor. That male contractor role attracted remuneration of €14000 per month while the complainant was being paid €5750. The commission payment she received at the end of 2018 was €24,421.90 for 11 months equals a monthly remuneration of €2220.17. Therefore, I assess her monthly remuneration to be €7970 for the period January to November 2018. This means she was being paid €6030 less than this male comparator during this period. She also received a small bonus in 2017 of €5000 and dividing by 12 this equates to €416 per month and for 4 months she was on remuneration of €6166 and being paid €7834 per month less than the male comparator. Her total arrears in remuneration is € 7834 x 4 months=€31336 and €6030 x 11 months=€66330. The total arrears in remuneration is €97666. I order the employer to pay the complainant compensation of €97666 attributable to a failure to provide equal remuneration in respect of the complainant’s period of employment from September 2017 to November 2018.

2. Complaint CA-00028782-002

The complaint was received on the 30th May 2019.

The 6 month time limit to make a claim, required that the complaint was received by the WRC on the 28th May 2019 as section 77(5)(a) of the Employment Equality Act 1998 states: “A claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of most recent occurrence.” The complainant was afforded an opportunity to provide a reasonable cause to explain the delay and while the date of the most recent occurrence of alleged discrimination was on the 29th November 2019, the complainant has not provided any reason for the delay, even if that explanation be a slight explanation (as the claim is still not within time based on this date). The complainant wrote to the respondent on 13th of January 2019 a very detailed letter of complaint and specified on a spreadsheet her actual loss or claim for compensation under separate headings of claim. This letter is a record of dispute between the parties detailing the nature of the claim and loss under several headings and yet this claim was not made on time. In the absence of any reason to explain why the claim was not referred before the end of 6 months from the date of occurrence of the discrimination; the discretion to extend the period does not arise and therefore I determine that the claim is statute barred and cannot be referred for adjudication.

3. Complaint CA-00028782-003

The complainant stated that she never received a new contract or list of duties since becoming a General Manager of the company in 2017:

Section 41 of the Workplace Relations Act 2015 states: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(a) 1 month after the change takes effect, or

And section 3 states:

3.—(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

4 Complaint CA-00028782-004

Section 41 of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complainant has not particularised their claim with regard to dates of breaches in contravention of the Organisation of Working Time Act 1997 Act as amended. The date of the last hypothetical breach was the 30th of November 2018; however, the complainant was absent from work on that date. The complaint was received by the WRC on the 30th of May 2019. As no breach could have occurred on the 30th November 2018, the last date for a breach subject to section 41 (6) of the 2015 Workplace Relations Act 2015 and in the absence of an application for an extension of time subject to section 41(8) of the same Act, I determine that the complaint is statute barred and cannot be entertained.

Dated: April 30th 2020

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Equal Pay-Notification of change to terms-Discrimination claim-Working through lunch breaks