Complainant

Respondent

Parties

Paul  O'Sullivan

Apple Operations Europe limited

Complainant

Respondent

Anonymised Parties

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Representatives

 Self-Represented  

Mr Tiernan Lowey BL instructed by  Matheson Solicitors

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-00046487-004

03/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00046487-005

03/01/2022

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

CA-00051693-001

13/07/2022

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

CA-00051693-002 DUPLICATE

13/07/2022

The Complainant commenced works  with the Respondent on 13 February 2009 as a general operative. At the time of submission of the Complaint he earned €644.32 gross: net €520.00 for a 36-hour week. The Complainant [has two complaints under the Employment Equality Act 1998, as amended namely  (1) an equal pay claim on gender grounds  and (2) a claim that an employment agreement contains a provision which is discriminatory towards him, or discriminatory in the main on the grounds of gender. He has a further claim under the Payment of Wages act 1991 in that the Respondent did not pay him wages that were properly payable to him.

The Respondent denied all claims and also raised a number of preliminary issues.

Summary of Respondent’s Preliminary Issues:

The Respondent submits that the issues, the subject of these proceedings, have already been determined and fully considered by the WRC and/or the Labour Court. The Respondent relies on the doctrine of res judicata  and submits that, while the Complainant is entitled to assert statutory rights, he is restricted from doing so in the specific circumstances of this case. The Respondent asserts that, cumulatively, his actions constitute an abuse of process. The Respondent is seeking that the complaints be dismissed on the basis of being frivolous and vexatious under section 77A of the Employment Equality Act 1998, as amended, and  section 42(1) of the Workplace Relations Act 2015 respectively  

CA-00046487-004 and CA-00046487-005: Employment Equality Claims:

The Respondent submits that these claims are not properly before the Workplace Relations Commission (WRC). The Respondent submits that the same complaints were previously before the WRC but were withdrawn during the hearing. The Respondent further submitted that it was not in receipt of a submission on these claims and  that it received no separate complaint form which gave the necessary detail of the complaints.

Time Limit: CA-00046487-005: Discriminatory Provision Complaint.

The Respondent submits that the collective  agreement alluded to in the complaint was entered into in 2015 ,therefore, it contends that any complaint relating to the Agreement is out of time.

CA-00051693-001: Payment of Wages Complaint:

The Respondent submits that the claim is out of time on the basis that the date of the actual unlawful deduction was 25 August 20021 whereas the Complaint at issue was submitted by complaint form on 14 July 2022.

Summary of the Complainant’s Response to Preliminary Issues:

CA-00051693-001: Payment of Wages Complaint:

The Complainant is seeking an extension of six  months on the basis that he had reasonable cause. He submits that he had originally submitted the claims within the six months deadline but had formally withdrawn them from adjudication to allow discussion with a view to settlement, but that this never materialised. He re-entered the cases but submits that his reason for doing so i.e., the failure of settlement talks, should be accepted as a reasonable cause for his failure to submit the complaint on time,  on the second occasion.

CA-00046487-004: Equal Pay.

The Complainant submits that he did not receive equal pay on the basis of his gender. He submits that he was part of a cohort of workers in a category labelled Long-Term Employees (LTF) who  were mainly male and gave evidence under affirmation that he , as part of that group,  was  paid less than the mainly female cohort of  Permanent Employees.  He accepted under cross examination that he did not identify a specific comparator for the purposes of the complaint. He accepted also that the Respondent did not intend to agree to the collective agreement with any discriminatory intention.

CA-00046487-005: Discriminatory Provision in a Collective Agreement.

The Complainant submits that a  collective agreement of 2015 (the Agreement) between the Complainant’s trade union and the Respondent contained a discriminatory provision which stated “The Union recognises the company’s position that red-circling current permanent employees’ terms and conditions of employment is a non-negotiable part of this project.” had the effect of being indirectly discriminatory both in pay and conditions for the LTF male dominated segment of workers in comparison to the female dominant segment of Permanent Employees.

He accepted in cross-examination that the trade union who had negotiated the Agreement had been his agent for negotiating such a deal and that it was accepted by the majority of the membership. He also accepted that the predominance of female employees in the Permanent segment was as a result of a historical legacy in the development of the Respondent plant and could not be seen as being a deliberate discriminatory provision.

CA-00051693-001: Payment of Wages Complaint:

The Complainant submits that that on 25 August 2021 he was not paid a sum of €32.11 and that this was ongoing. This sum was the differential between the permanent grade and his own grade of Contract of Indefinite Duration.

He accepted in evidence that this was not a contractual sum but that it was a sum that he believes was properly payable to him due to him not being classed as a permanent worker.

The Respondent made the following submissions without prejudice to its preliminary points

CA-00046487-004: Equal Pay.

The Respondent submits that the Complainant has  failed to name a comparator who carries out like work in the context of the equal pay claim. The Respondent asserts that authorities have emphasised the need for a specific comparator. The Respondent refers to the comments of Budd J. in Brides v Minister for Agriculture [1998] 4 I.R. 250 at 270  where he stated there must be “an actual concrete real-life comparator of the other sex”. Likewise, it referred to the CJEU at 43/75,Defrenne v SABENA(no.2) [1976] E.C.R. 455 where it said the named  comparator must be in the same establishment or service.

CA-00046487-005: Discriminatory Provision Complaint.

The Respondent submits that  the makeup of the pool of Permanent Employees being predominantly female is due to a statistical quirk arising from a  historical legacy of how  the plant developed over the years rather than there being any  discriminatory aspect. The Respondent submits that to the extent that there is a pay differential which disproportionately impacts one cohort of employees of a particular gender, which the Respondent denies, the Respondent contends that such a  fact can be  objectively justified as follows, for the purposes of this complaint:

·         the interests of good industrial relations

·         the need to maintain some form of flexible working arrangements in order to maintain competitiveness relative to other manufacturing processes

·         the red circling of certain employees.

The Interests of Good Industrial Relations:

The Respondent cites the CJEU in  Case C-427/11, Kenny v Minister for Justice, Equality and Law Reform [2013] I.R.L.R. 463 where the Court said that the interests of good industrial Relations might be taken into consideration “as one of the factors amongst others” in the national court’s assessment (para 50).

The Respondent submits that the introduction to the 1998 Collective Agreement with the trade union, the overarching agreement,  has extensive references to maintaining good industrial relations and that it is the stated intention always of the Respondent to maintain sound  and  harmonious relations with its staff.

Flexible Working Arrangements for Competitiveness:

The Respondent submits that in order to remain globally competitive, it is required to operate a form of flexible working amongst its staff. The Respondent cites ECR case Jenkins v Kingsgate (Clothing Production) Limited [1981] ECR 911 (CaseC-96/80) where it was acknowledged that lower rates of pay for part-time workers were unlawful discrimination, but the CJEU held that the employer would have a defence if it was able to show that a lower rate of pay for part-time workers was genuinely part of its business strategy on economic grounds and that this could be objectively justified.

The Respondent also argued that a finding to the contrary would potentially undermine the collective bargaining model that has helped to deliver the competitiveness that underpins the success of the Respondent’s Irish manufacturing function.

Red-Circling:

The Respondent cited Campbell v Minister for Transport [1996} ELR 106  where justification of red circling  was accepted by the High Court. It further cited the gender discrimination cases of  Irish Crown Cork v Desmond [1993] ELR 180 and Minister for Transport, Energy and Communications v Campbell [1996] ELR 106  where the employer relied on red circling.

CA-00051693-001: Payment of Wages Complaint:

The Respondent submits that the differential identified by the Complainant arises out of a long-standing collective agreement between the Respondent and the trade union. The Respondent submits that  the sum sought by the Complainant is not properly payable under the contract of employment or otherwise.

Preliminary Issues:

Res Judicata:

The Respondent cites the doctrine of Res Judicata in relation to the Equality complaints  in that they were formally withdrawn by the Complainant at a previous hearing. I am satisfied that the complaints in question, which were previously  withdrawn at a  WRC hearing, can be heard unless an underlying consent agreement prevents them  from being reheard  or, in the alternative,  the complaints were formally  dismissed. None of the foregoing circumstances prevailed therefore I deem that the Equality claims were properly before me.

Time Limit: CA-00046487-005: Discriminatory Provision Complaint.

The Respondent submits that the Agreement alluded to in the complaint was entered into in 2015 ,therefore, it contends that any complaint relating to the Agreement is out of time. I do not accept the Respondent’s contention on this point. The 2015 agreement, though relatively long-standing, is still current for the purposes of this complaint, in that the alleged discriminatory term relating to red circling is a relevant factor in maintaining a differential in pay between two segments of workers.

CA-00051693-001: Time  Limit - Payment of Wages Complaint:

The  Complainant sought  a six-month extension for submission of this complaint , based on reasonable cause. He argued that  that he had already submitted it within the six-month period but formally withdrew it because he believed that progress could be made with the Respondent in settling the matter through discussion. When he perceived that no satisfactory progress was made with the Respondent, he resubmitted  the complaint, albeit outside the six months period. The Complainant asserted that he was not familiar with the procedures of the WRC on time scales.

The applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows: 

“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 delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

I am satisfied that the Complainant was familiar with the procedures of the WRC as extensive submissions were received regarding a previous hearing and therefore, I conclude he had full knowledge of the  time -limits for submitting claims. It was plainly foolhardy for the Complainant to formally withdraw his complaints in the manner described but the success or otherwise of discussions cannot be rationally accepted as a ‘reasonable  cause’ in that the risk of being out of time was more than  foreseeable to the Complainant.  Having considered the evidence put forward by the Complainant in applying for an extension of time, I conclude that he has not established that there was reasonable cause justifying his  delay in referring his  complaint to the Workplace Relations Commission, therefore I find that the complaint was not well founded due to being out of time.

Substantive Issues:

CA-00046487-004: Equal Pay.

The burden of proof is on the Complainant to present, in the first instance, to present a prima facie case i.e.  facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Acts  state as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the Director General under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Court of Justice has consistently stated the well-established principle  that with regard to equal pay, there is a need for a real identifiable comparator. This approach has been followed in the High Court in this jurisdiction in Brides v the Minister for Agriculture [1998] 4 IR 250. Budd J. said that a claimant must be able to point to “an actual concrete real-life  comparator of the other sex” performing like work. The Complainant in this instant case accepted that he was not in a position to produce such a comparator therefore the Complainant has not made out a prima facie case. Therefore, I find that the Complainant was not discriminated against by the Respondent on the issue  of equal pay  

CA-00046487-005: Discriminatory Provision Complaint.

Section 9 of the Employment Equality Acts 1998-2015 provides:

(1) In a case where—

(a) an agreement or order to which this section applies contains a provision in which differences in rates of remuneration are based on any of the discriminatory grounds, and

(b) in relation to a person to whom the agreement or order relates, that provision conflicts with an equal remuneration term in that person's contract of employment,

then, subject to subsection (4), that provision shall be null and void.

(2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8(1) then, subject to subsection (4), that provision shall be null and void.

(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:

(a) collective agreements;

(b) employment regulation orders, within the meaning of Part IV of the Industrial Relations Act 1946 [as amended by the Industrial Relations (Amendment) Act 2012]; and

(c) registered employment agreements, within the meaning of [Chapter 2 of Part 2 of the Industrial Relations (Amendment) Act 2015].

(4) In the case of a provision which—

(a) is contained in an agreement or order made before the coming into operation of this section, and

(b) is discriminatory on a ground other than the gender ground,

subsection (1) or, as the case may be, subsection (2) shall not apply until the first anniversary of the date on which this section comes into operation; and, accordingly, until that date, the equal remuneration term or equality clause in a person's contract of employment shall not override any such provision of an agreement or order which relates to that person.

The Complainant submits that collective agreement of 2015 (the Agreement) between the Complainant’s trade union and the Respondent contained a discriminatory provision which stated “The Union recognises the company’s position that red-circling current permanent employees’ terms and conditions of employment is a non-negotiable part of this project.” He submitted that this had the effect of being discriminatory both in pay and conditions for the cohort of mostly male Long Term Flexible employee, when compared to the  mostly female cohort of Permanent Employees. I am satisfied, on the face of it, that the provision for red circling has the characteristic  of indirect discrimination therefore I find that the Complainant has made out a prima facie case in line with section 85A of the Acts.

To determine whether there was an intention on behalf of the Respondent to  discriminate, I must examine the circumstances surrounding the initial incorporation of the provision. Both sides accepted that it was a “statistical quirk” that sprung from historical conditions in the development of the Respondent plant over the years whereby the majority of the Permanent Employees were female. I am also  satisfied, as a  finding of fact, that the Complainant’s terms and conditions were improved as a result of the 2015 Agreement; an agreement  which was sought by the Complainant’s trade union and that the said trade union acted as  his agent in the discussions. The agreement was ratified by the majority of the membership of the trade union.

The Respondent cited Villabla v Merill Lynch & Co Inc [2006] I.R.L.R. 437 where Elias J concluded that the elimination of discrimination on grounds of gender did not require objective justification for differences in pay in circumstances where the employer had satisfactorily rebutted direct gender discrimination and there was no independent  evidence of any kind to show that gender had any influence on the difference in pay. The Respondent further contended that Labour Court appears to have endorsed the approach of Elias J in National University of Ireland, Cork v 42 Named Claimants DEP 1/2006.   The Respondent also opened the CJEU decision in Horgan and Keegan v Minister for Education and Skills Case C-154/18, CJEU (Second Chamber), 14 February 2019. where the Court held that where there is no causation there can be no discrimination, direct or indirect, and that objective justification is therefore not required. The Complainant accepted, when asked in evidence,  that the Respondent,  had no intention to discriminate between male  and female employees when agreeing to the contested term in the Agreement. I find as a material fact that the intention by the Respondent  to  agree to the “red circling” term was devoid of any discriminatory intent or effect. I am satisfied therefore that the Respondent has satisfactorily rebutted the prima facie case of discrimination by nature of the provision in the Agreement and that the said provision was not discriminatory in contravention of section 9 of the Acts.

Notwithstanding this finding, I believe it necessary in this case  to go a  step further and comment on the Respondent’s case for objectively justifying what can be perceived as indirect discrimination. I am satisfied that the factors as identified by the Respondent, and backed up by the relevant authorities, namely the interests of good industrial relations, the need to maintain some form of flexible working arrangements in order to maintain competitiveness relative to other manufacturing processes and the red circling of certain employees, to be long standing justifications corresponding to a real need on the part of the Respondent which were proportionate and appropriate, and were unrelated to the gender of workers.  

For the reasons outlined above,  I find that the relevant term at issue was not discriminatory.                                                                                                                                                                                                                                                                                                                                                                                                                                          

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00046487-004: Equal Pay.

For the Reasons outlined above, I find that the Complainant has not established a  prima facie case  of discrimination by way of not receiving equal pay therefore I find that the Respondent has not discriminated against him.

CA-00046487-005: Discriminatory Provision Complaint.

For the reasons outlined above, I find that the Complainant established a prima facie case that a provision in a collective agreement relating to red circling was indirectly discriminatory on the grounds of gender but that the Respondent successfully proved to the contrary that the relevant provision was not in contravention of section 9 of the Acts.

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.

CA-00051693-001:  Payment of Wages Complaint:

For the reasons outlined above, I find that the complaint was out of time and therefore not well founded.   

Section 9 of the Employment Equality Acts 1998-2015, Indirect Discrimination, Gender, Equal Pay, Collective Agreement, Payment of Wages Act 1991.