FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: GL ENTERTAINMENT DISTRIBUTION (REPRESENTED MARCUS DOWLING SC INSTRUCTED BY MEAGHER SOLICITORS) - AND - EWELINA KONARSKA DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00021993 Ms. Konarska, ‘the Complainant’, brought several complaints including a harassment claim and an equal pay claim under the Employment Equality Acts, 1998-2015, ‘the Acts’ against her former employer, GL Entertainment Distribution, ‘the Respondent’, to the Workplace Relations Commission, ‘WRC’, on 30 May 2019. The Adjudication Officer, ‘AO’, found that the complaint of harassment had been lodged outside of the 6 months period from the alleged breach, as required under s. 41 of the Workplace Relations Act 2015 and that reasonable cause for the delay had not been established, as per s.41(8) of that 2015 Act and section 77(5)(b) of the Acts The Complainant appealed that decision to this Court. The AO upheld her complaint regarding equal pay and awarded compensation in the sum of €97,666. Both parties appealed this Decision. The Business of the Respondent The Respondent was incorporated in 2007. It is engaged in the business of wholesale purchase and sale of videogames, videogames systems and accessories and occasional other electronics. The Respondent’s core business revolves around bulk sales of these items internationally In addition, the Respondent buys refurbished and upgraded consoles and accessories. This is a growing part of the business. Currently the Respondent’s trade was, at the time covered by this appeal, wholesaler to wholesaler, and the goal was to deal directly with retailers. The Harassment Claim Summary of Complainant’s arguments on the harassment claim and the 6-month time limit. The last act of harassment occurred on 29 November 2018 and the complaint was filed on 30 May 2019. The Respondent understood the 6-month period to run from the date of the last act but not including the day of the act itself. The rule is unclear. The Complainant cited European case law on the European Convention on Human Rights as authority for the proposition that rules governing time limits should not prevent litigants from using an available remedy, seeMiragell Escalano and Others v. Spain and Zvolsky and Zvolska v the Czech Republic. The Complainant citedKursun v. Turkeyas authority for the proposition that each case must be assessed in the light of the special features of the proceedings andHasan Tunc and Others v. Turkeyas authority for the proposition that the Courts must avoid excessive formalism. Where access to a court is restricted by law or practice, the Court is required to examine if the restriction affects the substance of the right. The authority for this is the case ofAshingdane v the United Kingdom. The rules should not form a barrier to a litigant having their case determined on its merits, seeZubac v. Croatia. Where inaccurate or incomplete information regarding time limits has been provided, the courts should take sufficient account of the circumstances of the case and not apply the rules, seeClavien v. SwitzerlandandGajtani v. Switzerland. On the question of applying the principle of proportionality the Complainant referred the Court toNait-Liman v. Switzerland. The Complainant submitted that the 6-month time limit for submitting her claim to the WRC was too strict, having regard to European caselaw. It is disproportionate to the protection of female rights in comparison to EU legislation. In Poland, for example, the limitation period is 3 years. The Court should accept the claim where it is just and equitable to do so. The complaint was not pursued at the time as the Complainant hoped that there would be a resolution with the company. The Complainant is not a lawyer and English is not her first language. When she calculated the 6 months, she did not calculate the first day. The Complainant was stressed and suffering from medical issues due to her treatment by the Respondent. Summary of Respondent’sarguments on the harassment claim and the 6-month time limit The real reason for the delay was that the Complainant waited until the last day that she believed her appeal to be in time. It is a well-established legal principle that ignorance of the law is not an excuse. The Complainant has not provided any medical evidence to support her claim that she was suffering from medical issues for the six-month period. The Complainant was sufficiently well to write a comprehensive account of her grievances and to send it to the Respondent on 13 January 2019, in advance of the 6-month time limit. She was clearly able to submit any complaint to the WRC at that time. The Complainant has not produced any argument to show reasonable cause for the delay. The Applicable Law Employment Equality Acts 1998-2015 Section 77(5) (a) Subject toparagraph (b),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 its most recent occurrence. (b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainantparagraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly. Section 14A. (1) For the purposes of this Act, where— (a) an employee (in this section referred to as “the victim”) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as “the workplace”) or otherwise in the course of his or her employment …… the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment. Deliberation It is not in dispute that the Complainant submitted her complaint one day after the expiry of the 6-month time limit. Section 77(5)(b) referenced above provides that this 6-month period may be extended for a period of up to 12 months where the Complainant can show reasonable cause. The Complainant argues that the established test is not in compliance with the caselaw of the European Court of Human Rights on time limits in that it prevents litigants from vindicating their rights, the restriction goes to the substance of the right, is disproportionate and the time limitation is unclear. The Court does not accept that is the case. Section 77(5) sets out clearly that the time limitation runs from the date of the occurrence of the discriminatory act which in this case was the 29 November 2018. There is no ambiguity about this. The six-month limitation period is not absolute in that it can be extended by a further six months upon the Complainant establishing reasonable cause. The test of reasonable cause is a relatively low bar compared to the exceptional circumstances test which is applied where an appeal to this Court is given to it out of time. For all of these reasons the Court is satisfied that the reasonable cause test is the proper test in the circumstances and compatible with the State’s obligations under the Convention as required by section 2 of the European Convention of Human Rights Act 2003. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court DeterminationDWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
The Court does not accept that a miscalculation of the time elapsed, as appears to have occurred, can offer reasonable cause for a failure to meet the clear intention of the legislation quoted above, that complaints be submitted within a six-month period. The Court notes the Complainant’s lack of legal training but as stated by the representative of the Respondent, it is well established that ignorance of the law is not an excuse. The Complainant represented herself at the hearing despite the fact that English is not her first language and the Court sees no reason why that argument should be a factor in its consideration, given the ability of the Complainant to articulate her arguments with such commendable authority before this Court. The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit and that the test for reasonable cause has not been met. Determination. The Decision of the Adjudication Officer is upheld. The Equal Pay Claim Summary of Complainant arguments regarding equal pay claim Note: Names of third parties have been anonymised as they are not parties to these proceedings but details of their relationship and/or alleged relationship with the Respondent are referred to in the text below. The Complainant commenced employment with the Respondent in 2011. The Complainant took over as General Manager in September 2017. She replaced the former General Manager Mr L following his departure from the Respondent. Mr. L left the Respondent on bad terms that required negotiations, at the end of which he was offered a salary of €250,000 plus commission but he declined this offer because he did not wish to work for the owner any longer. This salary was not based on work performance. When Mr. L left, a major supplier ceased trading with the Respondent, resulting in lost supplies of €13m on stock that would have turned an expected profit of 8% to 30%. This hugely impacted turnover. In September 2017, the Complainant met the owner in London to interview for a new General Manager. Later that month, when no replacement was found, the Complainant was asked to take on that role and to start taking care of buying and selling. Due to Mr. L’s departure, the company’s reputation suffered, and the Complainant had to reassure suppliers and customers. At the time of her appointment as General Manager her salary was increased to €69,000, (plus €3000 Christmas bonus) and a bonus of €24,422 was paid in November 2018. The Complainant says she agreed this salary as she was assured by the owner that there would be a further discussion about money in a few months. During each of the owner’s visits from Miami, the Complainant initiated a conversation regarding her salary as General Manager and her commission but each time the discussion was put off until later. The Complainant personally made sales between September and December 2017 of €1.1m, with gross profit of €63,000, while working hard to liquidate old stock and overseeing the daily operation of the company and employees. The owner refused to discuss the Complainant’s remuneration with her. She kept getting put off. The Complainant said that she was paid less than her male predecessor, Mr. L who, when he left the Respondent, was in receipt of a salary of €120,000 p.a. plus a bonus of €100,000. The Complainant says this was because of her gender. The Complainant had the same duties as Mr L. The Respondent has a history of high turnover of staff in logistics and accounting. The Complainant was asked to look for female employees as this was the preference of the owner, Mr. Filippo Boccara, who frequently made comments which were demeaning and disempowering of the women employees. The women’s salaries were below those of the men in the company. The Complainant had been told by Mr. L and Mr. R that the owner preferred to hire women and did not need another alpha male in the office. Throughout her time with the Respondent, additional responsibilities were given to her, and she had constant issues regarding her pay, to reflect these increased pressures. In January 2018, the Complainant was advised that Mr. T had been contracted as a new buyer/seller who might become General Manager. He was supposed to join in February 2018 but, due to contractual obligations, he was not able to start work until July 2018. She was also paid less than Mr. T, who was engaged by the Respondent to do work for the company in buying and selling. Mr. T was paid €14,600 per month. The Complainant did work of equal value to Mr. T. Mr. T’s contract had little to do with his actual responsibilities. He was an external consultant who performed buying and selling duties. There is no evidence to support the Respondent’s claim that he was a marketing executive or the claim that he carried out duties of a senior managerial role. He had no direct access to the company’s system, information or data bases. Nor is the Respondent’s claim true that constant support was provided to the Complainant by the owner and his U. S. based colleague, Mr. R. The Complainant was left on her own to run the company. The Complainant made sales between January and June 2018 of €5.24m but the owner gave Mr. T a greater share of customers, thus reducing the Complainant’s commission. The Complainant’s contribution to profit per customer was about 4 times that of Mr. T, who had no responsibilities beyond buying and selling. The Complainant brought in 25 new customers and suppliers. The Complainant had to clean up messes with customers that were left by Mr. T. The Complainant submitted her notice on 2 October 2018 and outlined all of her grievances. She was underpaid and discriminated against. The owner tried to “bribe” the Complainant to stay by making offers to her, culminating in November 2018 with an offer of a salary of €135,000 p.a., a once off retrospective bonus of €50,000, commission of 7% on gross profits excluding sales made by the owner and paid time off from 1 December 2018 to 15 January 2019 plus a loan for residential property of €110,000 and a promise of minimal interaction with the owner. She refused. The offered commission is well below the market rates in Ireland. The previous manager did not have sales targets and nor had Mr. T, who sought advice on selling and buying prices from the Complainant. It is not the case that the Complainant was only a transitional General Manager. It is understood that the current, male, General Manager is paid in the order of €150,000 p.a. The Court was provided with an extensive list of the Complainant’s duties as General Manager. Summary of Respondent arguments regarding equal pay claim The Adjudication Officer accepted that there was not a valid comparison under the Acts between the Complainant and Mr. L, who was engaged because of his previous experience in buying and selling similar products to those bought and sold by the Respondent, who also had eight years in the role of General Manager when he left the employment and his remuneration reflected this experience. By contrast, the Complainant did not have this experience when she was appointed as General Manager. However, her salary was increased from €43,000 p.a. to €69,000 upon her appointment as General Manager, an increase in the order of 60%. She was offered a further substantial increase in her remuneration when she indicated that she wished to leave the employment. The Complainant herself frames the increased importance of her role with the Respondent with reference to the departure of Mr. L and the profound commercial implications that this had for the business of the Respondent. This fact alone demonstrates that her assertion that her work was of equal value to that of Mr. L is entirely without foundation. Mr. L had grown the business during his time as General Manager. At the time of his departure a major supplier to the Respondent ceased to supply €13m worth of supplies. There was a significant commercial shock to the business. The Adjudication Officer records in the Decision that the Complainant admitted that she did not perform like work to either Mr. L or Mr. T. The issue, therefore, is whether she performed work of equal value. Mr. T is a UK national who provided services to the Respondent between July 2018 and October 2018. He did not work in Ireland and was engaged on a contract for services. The duties of Mr. T were set out in the consultancy agreement with him. They included business development and marketing activities. He was retained to develop new and high margin revenue streams as he had represented that he would be able to get the Respondent’s product into UK retailers and use his network to expand the business. It was also envisaged that he would help with the branding of the business. He was not successful in developing the promised revenue streams and the Respondent terminated his contract. He was not engaged to manage existing sales relationships. The Complainant makes the point that Mr. T relied on her in relation to pricing for existing business but he was not retained to deal with that business. He was not hired to do the same work or work of equal value to the Complainant. Mr. T was retained because he had relevant experience in business development. The Complainant does not claim to have such experience. In the case ofAngestelltenbetriebsrat der Wiener Gebietskrankenkasse v. Wiener Gebeitskrankenkasse,‘the Viennese Doctors’ case’, the issue was whether two groups of therapists were performing ‘like work’ in circumstances where one group had medical qualifications and the other did not. The CJEU held that the work done by each group was not comparable. It was held that work was not comparable ‘where the same activities are performed over a considerable length of time by persons the basis of whose qualification to exercise their profession is different’. The same logic was applied inKenny v. Minister for Justice, Equality and Law Reformin which comparison was made between clerical officers in An Garda Siochana and Gardai in certain clerical posts. The CJEU held that the answer to whether the two groups did the same work was for the national court to look at whether, and what, additional tasks could be assigned to Gardai designated to hold clerical roles. While Mr. T, in the absence of doing what he had been retained to do, was assigned sales duties in respect of some customers who fell into the same class as customers served by the Complainant, as with the Austrian doctors and Gardai, he could be called upon to perform functions of an entirely different order and nature in the field of marketing and business development. The Respondent could not have dismissed the Complainant by reason of her failure to generate new business in the UK or any other market. Also, the fact that the Complainant did some sales work did not make business development and sales her job. As per the Acts, work of equal value is determined ‘having regard to such matters as skill, physical or mental requirements responsibility and working conditions’ If the parties were engaged on like work, (which is denied), then it is submitted that any difference in remuneration is attributable to the fact that Mr. T was engaged pursuant to a contract for services. Section 19(5) of the Acts provides that nothing in that part prevents an employer paying different rates of remuneration on grounds other than gender. InMinister for Transport, Energy and Communications v Campbell and Ors, (1996) ELR 106, Keane J. stated that the Labour Court must approach such an issue on the basis that the employer must prove that differentiation is attributable to grounds other than sex. InNational University of Ireland v. Ahearn (2005) 2 IR 577,it was held that the Labour Court must approach the position of comparators in particular in the context in which they were employed. The fees paid to Mr. T were dictated by his economic demands upon his representation that he could generate business. As perEnderby v. Frenchay Health Authority and Secretary of State for Health ECR 1993 1-05535,economic factors can amount to justification for differences in pay. It is also relevant that Mr. T was retained on a contract for services and had to procure his own insurance and provide the Respondent with an indemnity. However, these considerations are, it is submitted, largely secondary. He was hired to develop new revenue streams and his fee structure was based on that expectation. When he failed to deliver, the contract was terminated. The Complainant’s salary was a development of the remuneration paid to her, as further functions were assigned to her, she received salary increases. The fixing of her salary and Mr. T’s responsibilities and fees had no connection to gender. Witness evidence Ms. Andrea O’ Donnell. Ms. O’ Donnell was called by the Complainant. She worked for a time for the Respondent on a part-time basis doing administrative and book-keeping work. The witness said that she never had enough time to do her job. She said that she reported to the Complainant, as General Manager. The witness confirmed that the Complainant had undertaken all aspects of the role of General Manager, including all matters covered in the previous GM’s contract of employment, provided to the Court. The witness confirmed that she was introduced to the company by the Complainant. She confirmed that all payments were made by the Complainant, who had also dealt with suppliers and had brought in many new customers. The witness said that Mr. T had sold products and reported only to the Complainant. She said that Mr. Boccaro did not have active involvement with her. The witness said that she was not aware of Mr. T engaging in marketing and that she thought he only had access to the customer list. She said that while she did not witness conversations between Mr. T and the Complainant, she knew that if he needed anything he called the office. The witness said that the Complainant had left because she had issues about her position. While she did not know all details, she knew of growing animosity between the owner and the Complainant and that Mr. T’s failure to do what he was supposed to had caused issues between the Complainant and the owner. The witness described the Complainant as an excellent GM who did everything, who was the boss and who covered every aspect of the business even payroll. Under cross examination, the witness said that she only met Mr. T on 3 or 4 occasions when he came to the office. She said that buying and selling was his role, and she was not aware of any other aspect. She could not remember how he was paid. It was then put to the witness that in her witness statement she had noted that Mr. T was an external consultant, to which she replied by noting the passage of time since then and that she did not now know. When questioned then about the development of a business portfolio by Mr. T, the witness again referred to the lapse of time. The witness noted that the Complainant did market research. It was put to her that her failure to recall the matter of Mr. T’s role and contract were not credible, to which she replied that at the time of her witness statement, everything was fresher in her mind. In response to questions from the Court, the witness stated that Mr. T had never developed a business portfolio, that the Complainant had sold more than him but she could not say if there was a clear understanding on their parts as to their roles. The witness said that she never met Mr. L and she accepted that she had no knowledge of his work. When asked how she could comment on Mr. T’s performance, the witness noted that she paid the earned commission and that she could see the numbers. The witness said that the Complainant had told her what was Mr.T’s job. Ms. Ewelina Konarska. Ms. Konarska is the Complainant. The witness confirmed that her submission was a truthful and honest account of what had happened. Under cross examination, the witness said that she joined the employment in 2011, at which time, there was only Mr. L, an Accountant who worked three days each week and herself in the company. There was an Irish director, Mr. Liam Ryan but his role was largely confined to signing cheques. It was put to the witness that Mr. L had extensive experience in selling computer games before joining the company and that he had 6 years’ experience in the area. When asked if she disputed this, the witness said that she knew only that he had told her that he had experience selling DVDs and cameras. The witness confirmed that Mr. L was ten years older than her. The witness confirmed that when she took over as GM, her salary went from €43k p.a. to €69k p.a., (an increase of about 58% in her pay). When it was put to the witness that Mr. L’s departure had created severe commercial problems for the company, the witness said that he had bought stock that the company was unable to sell. When it was then put to the witness that her answer was misleading because she was trying to avoid agreeing that the impact of Mr. L’s departure had resulted in a lost supplier and a consequent fall in gross profit, the witness said that it was due to the need to depreciate. The witness gave evidence of her work in assisting the owner to find a replacement GM and how this was not possible. The witness did not accept that this showed she was not a like-for-like replacement or that Mr. T had been hired to do what Mr. L had done previously. It was put to the witness that additional staff were engaged to support her as GM and that it was not true that she did both what she had done previously plus the role of GM. The witness said that there were 2 people focused on buying and selling and that her replacement only stayed until August. It was put to the witness that Mr. Boccaro would give evidence that the witness and himself went to London to find somebody to do the sales work that Mr. L had done previously and that in the period when the witness was on her own following Mr. L’s departure, sales were down by 71% and gross profit was down by 77%. The witness said that she could not confirm the figures but that when Mr. L left it was necessary to clear stock, a major supplier of €13m worth of stock went with Mr. L, after stock had been bought from that supplier that had to be sold at a loss. She said that she had to look at new streams of revenue. It was put to the witness that her evidence in this regard conflicted with her evidence to the WRC, when she had said that losing that supplier had been costly for the company when she was now saying that losing that supplier was a ‘good thing’. The witness reiterated that prior to his departure, Mr. L had purchased bad stock. The witness was referred to an exhibit provided to the Court which was said to be Mr. T’s contract. She noted that this document was not signed. Counsel noted that Mr. Boccaro would testify to the status of the document. It was put to the witness that the document was, clearly, a contract for services, which set out Mr. T’s role. It was put to the witness that Mr. Boccaro would testify that Mr. T had been engaged because he seemed to be in a position to leverage his experience to generate business. The witness said that she had been told by both men that Mr. T would be doing only buying and selling. The witness said that she could not pinpoint the exact time when she took a screen grab of a text exchange with Mr. T in which he appeared to confirm that he would only be buying and selling. The witness agreed with the suggestion that Mr. T had been ineffective but said that she had not been party to conversations between Mr. Boccaro and him. The witness declined to give any information about where she is working or in respect of her current remuneration. In response to questions from the Court, the witness reiterated that she had been told that Mr. T was engaged for buying and selling. She said that he had been originally supposed to join the company in early 2018 but, for contractual reasons, could not do so until later in the year, though he had some involvement in a deal in February. The witness confirmed that she knew that Mr. T was a consultant and said that, although she had only met him a few times, she was in communication with him every day. She confirmed that he did not do any aspect of the GM role. She said that she had engaged with her former employer three times following her resignation but that she had not felt comfortable to stay in the employment as she had anxiety problems brought on by the treatment of her. Mr. Filippo Boccaro The witness is the owner of the Respondent company. The witness confirmed that Mr. L had worked for the Respondent from 2011 to 2017. He described Mr. L’s role as one of business development, bringing in revenue and managing the company. He said that Mr. L’s departure had a big impact as he was very skilled commercially, had a ‘good nose’, was good with customers and understood the commercial spectrum. The witness said that Mr. T left because of poor sales performance. The witness described the process of seeking a replacement for Mr. L and noted that the initial salary for any replacement would be high but would be designed to move to greater reliance on commission as what was needed was somebody with extensive experience but, even so, they would need a period to familiarise themselves with the new employer. The witness said that the Complainant had never suggested that she could do the job. The witness described how Mr. T was hired as a consultant, having contacted the witness. Mr. T seemed to know the industry. He started to work for the Respondent in February 2018, but the Respondent received a ‘cease and desist’ notice from a previous employer with whom Mr. T had a non-compete clause. He resumed in July 2018 until the third week in October. Existing customers were split between Mr. T and the Complainant. The witness said that he dismissed Mr. T because his revenues barely covered the consultant fees paid to him. Nothing had come of the leads identified by Mr. T or of his claimed ability to move the company to the achievement of its wish to buy directly from manufacturers and sell directly to retailers. Under cross examination, the witness said that the Complainant’s functions from July 2017 had been some sales, keeping books, filing regulatory reports, logistics, and payments, with access to the main account. The Complainant had the right to hire admin staff. With regard to the fact that Mr. L’s contract made no reference to performance, had provided for a salary of €55,000 p.a. and bonuses whereas his final salary was €120,000 and €100,000 in commission, the witness referred to the commercial value that Mr. L brought to the company. He justified a substantial offer to get Mr. L to stay with the company because he said that he wanted to keep him. The witness said that the Complainant had been very pushy about the issue of Mr. L’s non-compete clause after he left and he had agreed to hire a private investigator although, to him, it did not really matter. When asked why he had approached the Complainant three times to stay with the Respondent after she had indicated that she was leaving, the witness said that he was comfortable with her, that he was going through personal issues and that it was convenient. The witness said that the Complainant did not have all the necessary skills for the job but she had skills for admin and compliance, and she was thorough and honest. He said that the Complainant did not have the commercial skills required of a GM and was not able to put manufacturers and retailers together, something that had been achieved by the current GM, justifying a salary of €150k to €170k p.a. He noted that profitability was up, there were more purchases and retail sales. He said for that salary he expected more of a GM than simply dealing with companies given to them. The witness said that he could not recall how many customers were secured by the Complainant, but he did recall that profitability was down. The witness agreed that the candidates to replace Mr. L who were interviewed were all male. He reiterated the approach of offering a high initial salary that was to be reduced as the incumbent grew familiar with the company and remuneration was more and more based on performance. The witness disputed that the replacement for Mr. L was sought to carry on the company in the same manner. When it was put to him that the job description supported this view, he said that he was seeking somebody who could drive the company where it needed to go, which was to change the business model. The witness said that the Complainant’s role had expanded into sales after Mr. L left the company. When he was shown an email exchange in which he acknowledged some good market research conducted by the Complainant, which appeared to contradict his assertion that the Complainant had not carried out all aspects of the GM role, the witness accepted that, in the particular case, the research had been good but said that he would expect more than a ‘once off’ occurrence of good market research. He said also that he had never claimed that the Complainant had done no such research, but his issue was about the overall quality. The witness said that Mr. T had been engaged to do whatever was necessary to generate profits from the same range of customers and to get new customers. The customers had been split between Mr. T and the Complainant to facilitate his transition. The witness agreed that his representatives had been authorised to make offers to the Complainant to get her to stay when she had indicated that she was leaving. The Complainant referred to a written offer of a salary of €135k p.a. plus7% commission plus €50k retrospection for being GM and a loan of €100k to assist in purchasing property. The witness said that he was under pressure, he did not know many people in Ireland, he had personal difficulties, and it was convenient for him to retain the Complainant. When asked if he had started to introduce new duties for a GM after the Complainant had given her notice, the witness said that he could not remember. The witness accepted that the Complainant had been in the role of GM. When shown documents in which Mr. T suggested that he had resigned, the witness said that, whatever Mr. T might say, the witness had terminated the relationship. When the Court asked the Complainant what relevance this detail had for the appeal before the Court, the complainant suggested that it went to the matter of the credibility of the witness. In response to questions from the Court, the witness reiterated that the Complainant did not have the full range of skills required to perform the role of GM at the level he would require. The applicable law Employment Equality Acts 1998-2015. Section 2. Interpretation ‘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 ofthe Employment Agency Act 1971to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written ‘employee’, subject tosubsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons; Discrimination for the purposes of this Act. 6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), Like work. 7.—(1) Subject tosubsection (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 undersubsection (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). Entitlement to equal remuneration. 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 particular 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 particular 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 particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer. (b) Whereparagraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes ofsubsection (1)as complying or, as the case may be, 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 the purpose of determining whether this subsection applies in relation to A or B. (5) Subject tosubsection (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. Burden of proof. 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. (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 Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority 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 whichsection 9applies of a provision which, by virtue of that section, is null and void. (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked. Deliberation. The Complainant’s original complaint and the basis of her appeal is that she was paid less than two male comparators. One was her predecessor, Mr. L, and the other was Mr. T, who worked for the Respondent for a period that coincided with the Complainant carrying out the role of General Manager. It is not disputed that the Complainant was paid less than the remuneration paid to her predecessor when he left the employment nor is it disputed that the payments to Mr. T exceeded those paid to her. However, the Respondent denies that the comparisons are like for like. Rather, it is argued that Mr. L was hired because of his extensive previous experience in the industry, which the Complainant is said to lack, that he grew the business significantly and that his remuneration grew in time to reflect this. Further, it is argued that Mr. T was engaged as a contractor because he had extensive business development experience, which the Complainant did not have, that he was engaged to develop new, high margin, revenue streams and to assist in a re-branding and that, when he failed to meet these requirements, his contract was terminated. Accordingly, it is argued that, in both cases, the differences in remuneration are attributable to factors other than gender, in accordance with section 19(5), see above, of the Act. To succeed with her claim the Complainant must show that she is performing ‘like work’ with that of her chosen comparator, that she is receiving less pay than her comparator and that the reason for the pay differential is the fact that she is a woman, and her comparator is a man. In this instance the Complainant has chosen two comparators and therefore it is necessary for the Court to look at both comparators separately. A person performs ‘like work’ when that work is the same, similar or of equal value to that to that of her comparators. ‘Same’ work means that the work performed must be the same or interchangeable for the complainant and the comparators. The conditions in which the work is done must also be the same or similar. ‘Similar’ work means that differences between the work of the complainant and the comparators are insignificant in relation to the work, or so infrequent as not to be significant to the work as a whole. For example, male and female general operatives on a factory floor operate the same machinery, but the male operatives occasionally lift heavy items. ‘Equal value’ means work that has equivalence in matters such as skill, physical and mental requirements, level of responsibility and working conditions. The equal value provision allows for entirely dissimilar jobs to be compared. The Complainant’s comparators have to engage in like work during the three years the Complainant was engaged on the relevant work or at some point during the three years after that time as is the case here and this is not in dispute. The burden of proof is on the Complainant to establish the basic facts, namely a comparator doing like work and a pay differential. If the Complainant can establish these facts, then the onus of proof shifts to the Respondent to establish a ground other than the Complainant’s gender for the pay differential. Mr L as comparator. The right to use a predecessor as a comparator was established in European law in the case ofMacarthys Ltd v Smith (1980) E.C.R. 1275. All parties agree that Mr L was engaged by the Respondent as the General Manager up until 2017. It is not in dispute that Mr L was employed by Respondent as General Manager for a period from 2011 to 2017. When Mr L was first appointed General Manager in 2011 his starting salary was €55,000 p.a.. At the time of his departure in 2017 Mr L was in receipt of a salary of €120,000 p.a. plus commission of €100,000, dependent on company profit. When the Complainant replaced Mr L as General Manager in September 2017 her salary was set at €69,000 p a., plus a bonus of €3,000 and she received a further bonus of €24,000. The role of General Manager The Complainant’s position is that she was performing the same work as Mr L. No contract was ever provided to her. However, in support of this she provided the Court with a list of her duties as General Manager. These were described as follows:
For the sake of completeness, the Court noted that in his evidence, Mr. Boccaro, the owner of the Respondent company, referred also to compliance. Mr. L’s contract lists his functions as
The Respondent disputes that the Complainant was engaged in the same work with Mr. L. In particular, the Respondent laid emphasis on Mr. L’s skill, experience and knowledge in the development of the business, his market analysis and ability to exploit the available commercial opportunities. Mr. Boccaro, in evidence, said that these characteristics amounted to very fundamental differences in the value that was added to the business by the Complainant and her predecessor and in the work done by both and that these differences were reflected in the respective remuneration packages, as he did not wish to lose Mr. L from the business. He repeatedly drew the Court’s attention to the significant drop in sales revenue as a direct result of Mr. L’s resignation from the employment in order to emphasise this point. The Respondent argued that when the Complainant took on the title of General Manager, her previous administrative role was simply added to by giving her some sales functions and, in order to assist, additional administrative staff were engaged. In recognition of her increased responsibilities, her pay was increased from €43,000 p.a. to the package outlined above. In the alternative, the Respondent argues that if the Court accepts that the Complainant was engaged in the same workwork with Mr. L, there is an objective justification for the different remuneration. The obligation on the Respondent To defeat the Complainant’s complaintthe Respondent needs to satisfy the Court that (a) the Complainant was not engaged in like work or (b) the differences in remuneration were attributable to grounds unconnected with the Complainant’s gender. Arguments made by Respondent that Complainant was not engaged in the same work as Mr. L. The Respondent’s position is that Mr. L had experience of buying and selling and business development by the time he left the company that the Complainant did not have. Mr. Boccaro described Mr. L as having a ‘good nose’ for the commercial aspects of the business and he emphasised that he did not wish to lose him from the company. The Respondent noted the immediate commercial impact of Mr. L’s departure from the business to emphasise the difference in contribution to the business and the difference in work carried out between Mr. and the Complainant. The commercial value that Mr. L brought to the business, that, according to the Respondent, could not be matched by the Complainant, was illustrated by the fact that Mr. L’s departure resulted in the loss of a major supplier with a cost of €13m to the business. This, it was said, emphasises the significant differing levels of work carried out by Mr. L and the Complainant. The Respondent argues also that the process of finding a suitable replacement for Mr. L was difficult as it was not easy to find somebody with his level of skill and knowledge. Having failed to identify a suitable ‘like for like’ replacement, the Respondent sought to resolve its difficulties by increasing the Complainant’s functions to include sales, giving her the title of General Manager but, because she lacked the necessary skills, to engage an outside consultant with those skills, (eventually this was Mr. T), and by assisting her in her administrative functions by engaging more staff. It was the position of the Respondent that this emphasised the differences in the work performed. The Respondent stressed the business development and revenue generating skills that Mr. L had that the Complainant did not. Mr. L had developed those skills with experience. This was reflected in his remuneration. His starting salary of €55,000 p.a. compared with a starting salary for the Complainant of €69,000 p.a. However, by the time he left the company, Mr. L’sexperience, skills and instincts were of enhanced value and were applied in a fashion that could not have been applied by the Complainant. Mr. Boccaro, in evidence, did accept that there was at least one situation in which the Complainant engaged in good market research, but he repeatedly laid emphasis on the differences in quality and quantity of such input as between the Complainant and Mr. L. The Respondent referred the Court to the so-called ‘Viennese Doctors’ case, see above. Analysis by the Court of the arguments made. If the Court was to find that the Complainant and Mr. L were engaged doing the same work, the burden of proof to establish that the differences in pay were attributable to something other than gender, would shift to the Respondent. In this regard, the case law to which the Court’s attention was drawn by the Respondent, the ‘Viennese Doctors’ case, see above, is, in the view of the Court, of no assistance. There is no suggestion in the instant case that the formal qualifications of Mr. L or the Complainant played any part in the consideration of their respective levels of remuneration or, indeed, in their actual work. All three definitions of ‘like work’ in the Act relate to work ‘performed’, so the fact that the Complainant held the same title as Mr. L is not in itself determinative. InDepartment of Posts and Telegraphs v Kennefick EP 9/1979, DEP2/1980and inElectrolux v Hutchinson (1977) ICR252, it was established that contractual requirements were not, of themselves, determinative in cases of claimed equal pay, where there were provisions that were rarely enforced. In those cases, the provisions were being argued as additional requirements of comparators to justify differing rates of pay. In the instant case, the effect of these cases is that, even if both Mr. L and the Complainant had identical contracts, (there is no written contract for the Complainant), it would still be necessary for the Court to look at the actual ‘work performed’, as per the Act. As it happens, Mr. L’s duties, as set out in his contract, do not vary hugely from the Complainant’s description of her role. The Complainant seeks to rely heavily on this fact. The evidence of Mr. Boccaro, supported by the revenue results, is that Mr. L’s work focus was primarily on the company’s commercial activities, whereas the work of the Complainant was managerial with an added element of sales and purchases. This emphasis on business development led the Respondent to divide up the work done by Mr. L after his departure, so that parts of the work were carried out by the Complainant. The role of Mr. T is explored further below. For the purposes of the comparison with Mr. L, the Court finds that the Complainant was not, in fact, carrying out the same work as him. The Court finds that, at the time in question, the Complainant did not have the necessary business development skills to do the commercial work that was performed by Mr. L. He had developed an understanding and knowledge of the business that enabled him to carry out functions and responsibilities that could be acquired only through a level of experience that the Complainant lacked. No credible evidence was put to the Court that the Complainant had the same level of capability in respect of the company’s commercial activities as Mr. L, such that it could be shown that she performed the same functions in areas of business development, expansion into new areas and consequent enhanced revenue growth. Mr. L’s focus was on the company’s commercial activities, in developing contacts with buyers and sellers, growing the business, expanding into new areas and enhancing the company’s revenue. While the Complainant was given additional sales functions upon her appointment as General Manager, in addition to the managerial functions that she had in common with her predecessor, the evidence given to the Court was that the level of commercial ‘nous’ of Mr. L and his proven ability to develop the company through the work that he was doing was on a different scale and level to that of the Complainant. Nothing put to the Court by either party suggests that the differences in the work being carried out could be suggested as ‘minor’ or that they occurred with infrequency. Put simply, the evidence suggests entirely differing requirements of the two. The Court is satisfied, on the evidence, that the levels of business development and commercial expansion work carried out by Mr. L was of significant difference to that of the Complainant. Indeed, such was Mr. L’s success in his work that his departure had an effect of a €13m on the business. The Court is satisfied that the Complainant did not do the same work as that performed by Mr. L and, in respect of her complaint based on a comparison with him, she has not established a ‘prima facie’ case from which discrimination might be inferred, as per s.85A of the Act. Accordingly, this aspect of the appeal must fail. Mr. T as a comparator. Mr. T was never an employee of the Respondent. The first issue for the Court, therefore, is to consider if he can be regarded as a valid comparator by virtue of his employment status. s.2 of the Act, in relevant part, under the heading ‘Interpretation’ contains the following definition ; "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 whether the contract is express or implied and, if express, whether oral or written The Court has regard to the principles set out inAllonby v. Accrington and Rossendale College, (2004) 1 CMLRin which it was stated clearly that a person on a contract for services can be regarded as a ‘worker’; to the test applied inWall v. Nowacki EDA 198/19, which is to determine if the contractor had, as in the instant case, contracted ‘personally to execute’ work assigned, the wording of b(i) above, and to the analysis set out in the case ofBrightwater Selection (Ireland) Limited v Minister for Social and Family Affairs (2011) IEHC510that contracts to carry out work do not have to fall into either a contract of service or contract for services but can be employment contracts ‘sui generis’ . The Court is satisfied on the evidence provided that Mr. T was engaged to execute work personally for the Respondent and that he was engaged to do so in a form of employment relationship envisaged in s.2 of the Act and, as a consequence, the Court is satisfied that he can be identified as a comparator despite his status as an independent contractor. Mr. T’s contract. While the Complainant noted that the copy of what was said to be Mr. T’s contract was not signed, Mr. Boccaro gave uncontroverted evidence of the functions that he expected Mr. T to perform that were broadly consistent with the terms of the document produced to the Court. Further, he outlined to the Court how he had terminated the relationship with Mr. T when he was dissatisfied with what he believed to be the latter’s failure to carry out his functions. The Court found this evidence to be credible. On the basis of the document concerned, the services expected of Mr. T were as follows;
Functions of the Complainant The Complainant’s functions, as described by her, were as follows;
Arguments by the Respondent that the Complainant did not engage in like work with Mr. T. Mr. T was employed because of his relevant experience in business development, which the Complainant does not claim to possess, and it is this that gave rise to differing rates of pay. While it is accepted that, in the absence of doing all of the functions for which he was retained, Mr. T did sales work similar to that of the Complainant, his agreed functions allowed him to be called upon to perform functions in marketing and business development. That was his primary role, marketing the business, generating leads, co-ordinating marketing campaigns, creating marketing materials, analysis of partner relationships for marketing purposes. It was all about marketing, selling the product, generating new business. Mr. T’s engagement was terminated when he failed to generate new business and confined himself to selling to the existing customer base. The Respondent could not have terminated the employment of the Complainant for this reason. That was not the Complainant’s primary role. Her primary role was managerial albeit also engaged in significant buying and selling of the product. While it is accepted that the Complainant did some sales work, she was not required to have the skills necessary to carry out the sort of business development that was required. The case ofNational University of Ireland v Ahern, (2005) 1IR577noted that the Court must approach the position of comparators in the context in which they were employed. The Respondent needed the skills that Mr. T appeared to have as the Complainant did not have them. Therefore, the Respondent needed to meet his economic demands. It is settled law since the case ofEnderby v Frenchay Health Authority and Secretary of State for Health ECR 1993-05535that economic factors can amount to a justification in differing rates of pay. Unlike the Complainant, Mr. T was engaged to create new revenue streams. His services were terminated when he did not do so. Analysis by the Court of the arguments made. It is not disputed by the Respondent that both the Complainant and Mr. T did work that involved dealing with existing suppliers and customers. That is the basis on which the Complainant argues that she was doing the same work as Mr. T and, therefore, should be paid the same as him. However, the Respondent argues that Mr. T was engaged to carry out the functions outlined above and that, as a result of his failure to carry out these functions, his services were terminated. The Complainant disputes that Mr. T was ever expected to do anything other than the work that he actually did and that he disengaged from the Respondent of his own accord rather than having been dismissed. The only document provided by either party that relates directly to Mr T’s duties is the document that purports to be Mr. T’s contract. However, as stated above, the Court found Mr. Boccaro’s evidence on this point to be credible. In addition, the sequence of events, the search for a replacement for Mr. L, the difficulties encountered, the clear need for commercial experience and expertise, the inexperience of the Complainant in that area and the division of responsibilities into managerial, (carried out by the Complainant) and commercial, (to be carried out by Mr. T), and the termination of Mr. T’s engagement all lend further credibility to the Respondent’s assertion that Mr. T was engaged to grow the business using his knowledge of the UK market. The Court also accepts the evidence of Mr Boccaro that he terminated Mr T’s contract. The Act refers to ‘work performed’ for comparison purposes. It is not disputed that Mr. T did the same or similar work to that of the Complainant while he was engaged by the Respondent. However, the fact that they did the same work for a period is, in the view of the Court, determinative of nothing because as soon as this became apparent, Mr. T’s engagement was ended. The Act is, self evidently, not intended to provide grounds for action by an employee because a colleague chooses not to do what they are paid to do. Hypothetically, there might be grounds for action if an employer allowed such a situation to continue but, as this is not so in the instant case, it is not necessary for the Court to put that particular hypothesis any further. To establish work is similar requires small or infrequent differences between the respective roles. A simple comparison of the expected functions as listed above emphasises the very different roles and expectations of the Respondent as between the Complainant and Mr. T. While there was always likely overlap in the functions and services that both the Complainant and Mr. T would give to existing customers and suppliers, the sheer scale of difference in the respective expected roles makes it clear that there can be no question that the work expected was similar within the meaning of the Act. The Court is clear that the functions expected of Mr. T and those of the Complainant, which are listed above, are neither the same nor similar work. The final definition of ‘like work’ is work that is of equal value. Work can be said to be of equal value where it can be demonstrated that similar skill and responsibility levels are required in the performance of the work. It is clear from the evidence that the skills required of the Complainant was the ability to manage the business, manage the office staff, engage with regulatory and compliance matters and also engage in the purchase and sale of the Respondent’s products. It is clear from the evidence of Mr Boccaro and the terms of Mr T’s contract of employment that the primary skill required was industry expertise, a knowledge of the UK market and an ability to use this knowledge to drive sales. In a commercial company, like the Respondent company, the over-riding concern has to be the commercial performance and revenue raising elements of the company’s business that take precedence, in which case it might be argued that the responsibilities envisaged for Mr. T exceeded those for the Complainant. The skills sought by the Respondent, which they believed were possessed by Mr. T, are in short supply. The Respondent experienced considerable difficulty in finding somebody with the level of commercial and business development skills necessary to replace Mr. L. The business concerned operates in a seemingly lucrative market with a limited number of people with knowledge of that market and with the skills to maximise return within it. That makes such skills very valuable. It is the reason that such skills attract a premium. It is clear to the Court that this is the reason the Respondent was prepared to pay a premium to attract Mr. T to the business. It is the reason why the work performed by the Complainant and the work envisaged to be performed by Mr. T cannot be said to be of equal value. Put simply, the skills required of the job that Mr. T was expected to perform are in short supply, highly sought after and they attract a premium accordingly. They were also integral to the business. In 2017 the business experienced a significant drop in its sales and profit and there was a need to recruit someone with sufficient industry expertise to reverse the decline and increase profit margins. The Complainant’s lack of these skills was the very reason that the Respondent felt it necessary to engage Mr. T. Accordingly, the Court must determine that the Complainant did not carry out like work to that envisaged to be carried out by Mr. T and she has not established a ‘prima facie’ case of discrimination that meets the requirements of s.85A of the Act in respect of this aspect of her complaint. Conclusion Having regard to all factors, having considered submissions and sworn evidence and having applied the law to the facts of the instant case, the Court is satisfied that the Complainant has not established that she performed ‘like work’ in respect of the named comparators. No ‘prima facie’ case having been established, the Court is satisfied that the Complainant was not discriminated against on grounds of gender, that her appeal must fail, and the appeal of the Respondent must succeed. Determination The Decision of the Adjudication Officer is overturned.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
