ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037909
Parties:
| Complainant | Respondent |
Parties | Sinead Cotter | Irving Oil Whitegate Refinery Limited (on consent) |
Representatives | Andrew Turner, Hamilton Turner Solicitors | Rachel O Flynn, BL instructed by JRAP O’Meara Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00049303-001 | 23/03/2022 |
Date of Adjudication Hearing: 17 January, 3 and 4 April and 17 June 2025.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
On 23 March 2022, the Complainant, a Contract and Procurement Specialist, through her Union submitted a complaint about having been denied equal pay on gender and family grounds. She helpfully named her chosen comparator on her complaint form as Mr. Brendan Collins, who ultimately presented as a witness at hearing. A number of postponements prefaced the scheduled hearing in January 2025. As I had not received outline submissions within the requisite period prehearing, I reached out to the parties for these submissions on 14 January 2025: On 9 January last, the Respondent, through their Representative, Ms Emer O Callaghan remarked on the absence of a foundation written submission for the Respondent to respond to and sought to pivot the hearing to case management as a contingency.
The WRC shared this development with the Complainant side and sought comments. No comments have emerged.
I appreciate that the Parties may well be engaged in an attempted resolution of this case and if this if this is the case, I wish you both well.
However, I must now honour my responsibilities in this case and open the case for hearing on Friday next at 10 am. In the absence of written submissions, I will take evidence from both Parties.
The 17 January 2025 hearing was converted to case management on consent.
On 27 January 2025, I write to the parties confirming the next steps in the case where I sought further information on:
Job evaluation, Salary scales, transition through scales and systems for promotion. I acknowledged the Complainant preparedness to argue Equal Value in the case. I informed the parties of the parameters of my jurisdiction on occurrences within recognisable time limits. Expansion of Hay Methodology I sought submissions on cases of the parties choosing and in particular, NUI v Ahern [2005] IESC 40 and Teagasc and Paula Reid EDA, 2437, a recent case at the Labour Court with an Industrial Relations linkage. I set a deadline for completed submissions. I reserved my position on whether activation of Section 94(1) would be necessary on a site visit. The Respondent outline submission was received on 19 March 2025. Both Parties made supplementary written submissions as the case unfolded. I requested an Accountants report on the actual pay earned by Ms Cotter and Mr Collins, December 2019 to March 2022. I received two very different systems of compilation figures to that end, which were repeatedly disputed by the Parties. It is of note that the option of exercising a request for information under Section 76 of the Act did not have a role in this case. I note the Complainant complied her figures on a projected full-time attendance which was populated with absences through family leave. Mr Collins was a full-time contractor and employee during the reference period.
Sinéad Cotter took the oath to accompany her evidence. Brendan Collins took the oath to accompany his evidence. Trish Leahy took the oath to accompany her evidence. Kristy Brewer presented it on hybrid screen and took the affirmation to accompany her evidence. Adrian Quill took the oath to accompany his evidence. Declan Finn took the oath to accompany his evidence.
Both Parties made closing statements at hearing. Both Parties indicated that they wished to consolidate by written submission. I accepted this plan.
I received the Complainant closing submission on 28 July 2025, which was promptly forwarded to the Respondent. I made two follow-up attempts to receive a response. I received a scanned response on 11 December 2025, which was forwarded to the complainant, without response. I can confirm that these were the sole submissions received by the WRC post hearing. I apologise for the delay in completing this decision.
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Summary of Complainant’s Case:
The Complainant, Ms Sinéad Cotter has been employed on the Respondent site since 3 April 2000. She continues in live employment. The Complainant is the sole female in her work area, and she has family status through her 3 children. The Respondent Oil Company operates a Salary Grading System. Hay Methodology is the measurement tool. The Respondent published a Gender Pay Gap Report dated 20 December 2024 pursuant to the Gender Pay Gap Information Act 2021. That report identifies that female employees within the Respondent are paid less than their male colleagues. On 23 March 2022, through her Union, Ms Cotter submitted a complaint under the Employment Equality Act that she had been denied equal pay on gender and family grounds, naming a now former colleague Brendan Collins as her comparator, who is male and had a different family status. The family status was later contested at hearing. The narrative of the complaint signalled a contention that the complainant, remunerated at grade 12 should have been graded at grade 13 since 2009/ 2010 which ought to escalate to grade 14 due to operational changes since 2017. There is no justification for me to be earning less than my co- worker as we are both Contract Specialists just managing different categories of spend. I should have been on grade 13 since 2009/2010 and on grade 14 since 2017. Mr Turner for the complainant outlined that the complainant had been a long serving employee since April 2000. She had previously been employed by Irish Refinery PLC as an Industrial Chemist and had transferred to the Respondent. By March 2007, she commenced a Project Controller role in Procurement. Grade 12. By 2009, she had completed a Law Degree (Hons) and commenced the Contracts and Procurement Specialist role. She requested a grade change from 2010 onwards through her line manager. Unsuccessful in securing the grade change, the complainant pursued this objective through bi-annual requests of her line manager, who deferred to the human resource dept. Impeded by the lack of a job description for her current role, Ms Cotter completed her own job description and submitted it for consideration for upgrade. In March 2021, the Complainant was regraded at grade 13, but due to pay pause / covid 19 / operational matters, the pay associated with grade 13 was not applied to her at that time. Later in March 2021, Ms Cotter activated a grievance to Ms Kristy Brewer , Director of HR for Europe, seeking a further review in light of the persistent requests for historical upgrades from 2007, a rightful grade 14 due to operational changes at the business and latterly her discovery that her colleague Brendan Collins had commenced the role of contract Specialist in December 2019 at an automatic grade 13 . Their volume of work was similar in style, and the roles were “pretty much identical “. She linked her grade disparity to her pause in professional career due to family commitments. Mr Turner submitted that the complainant’s exclusion from being heard on her request for regrading resulted in her incredulity and amounted to discrimination on Gender and Family status. Nobody at the business had made any real effort to intervene. He argued that there were 5 occurrences in this case. 1 The Respondent failure to properly grade the complainant, which resulted in a knock-on effect to pay, pension, bonus and promotional prospects. 2 Deliberate reductions in performance reviews post absence through maternity leave. 3. Disparity in pay of €10,000 with her male colleague, whom she had trained in. 4. The Respondents failure to address the issues tabled in March 2021 grievance. Mr Mc Quill was not interviewed. 5 The disparity in treatment, where a colleague in materials was not required to seek an upgrading through Canada as it was applied locally. The Complainant came to hearing to seek the remedy of compensation which she has quantified as €107,000.00 for being denied equal pay on gender and family grounds. Gardiner v Mercer Human Resource Consulting DEC–E2006–007 UK case of Andrea Madarassy v Nomura International Plc [2007] EWCA Civ 33, w Kenny v. Minister for Justice, Equality and Law Reform, case C-427/11 Rahill v Grangegorman Development Agency [ADJ-00047457. By means of a supplemental submission, Mr Turner made further submissions to illustrate the complainants’ actual level of responsibility. Most of these were present day observations. He argued that the Complainant has been financially disadvantaged by the Respondents failure to apply the appropriate grade to the Complainant as she received a lower merit payment. This is a separate and distinct payment to grading. · Complainant currently manages 43 contracts. Comparator category 14 · Complainant currently taking over commercial contracts of significant high value. · Complainant manages security, catering and cleaning contract €1.2 m engineering contracts €3m, inspection contracts, €1m, waste contract €1m, recruitment contracts. Both Complainant and her comparator overlap in similarity · Contract negotiation · Monitoring, renegotiation · Renewals, extensions, and invoicing · Job profiles 2019 Comparator and January 2020, complainant carry the same criteria and competencies. Mr Turner took issue with the tabulation of the respondent but argued that capturing a 25 % differential in contract items in favour of the comparator was not a true reflection “only approximately 25% of those line items are actually used in any one contract “ Mr Turner submitted that the complainant had demonstrated the interchangeability of both roles when the complainant stepped in to cover Brendan Collins departure in May 2022. Mr Turner contended that he was not prevented in arguing that the Complainant was discriminated against by negative performance reviews on family grounds. County Louth VEC v Equality Tribunal [2016] IESC 40 Public Appointments Service v Flynn EDA 1637 He submitted that both the historical evidence and evidence of treatment arising after the making of the within complaint be included at Adjudication. Evidence of the Complainant: Ms Sinéad Cotter: The Complainant outlined her tenure at the refinery from April 2000. First for 5 years as Chemist in the laboratory paid at grade 11. She undertook further training in Lean and in Law and was offered a revised title of Project Controller, grade 12 in 2007. She did not receive a contract for this change. She took stock in 2010 and reflecting on her additional accomplishments and expanding set of responsibilities, Ms Cotter raised her objective of seeking an upward grade alignment at her mid-year review. She received an undertaking this would be raised with human resources and was disappointed when it was not activated. Ms Cotter recalled that had a number of absences for maternity leave to welcome her three children between 2011-2013. During this time, the refineries at Bantry and Whitegate became a Phillips 66 entity. She recalled completing projects on risk assessment, and scaffolding purchase. During 2014, Mr Quill, the complainants line manager as part of a due diligence process, identified a requirement for a Project Controller and a template was sought. The Complainant confirmed that she managed “SAP, e-payables “in addition to negotiating rates for different contracts. The Complainant submitted that “I did it all, always dealing with different services. She did not have direct reports. In October 2016, Irving Oil, the respondent in this case took over the business. She oversaw the SAP/ Oracle integration in aide of a “smooth transition “. She revisited her plan for grade review in 2018 by seeking a job template from human resources. Ms Cotter told the hearing that she aspired to grade 14. By then, she was managing 50 contracts and juggling a busy home life. She recalled feeling ignored, disappointed and undervalued and formed the view that this emanated from her absences through maternity leave. The Terminal at Bantry was sold. Brendan Collins was working as a Contractor. She had trained him into the post. Ms Cotter recalled an advertisement for a permanent job in the role that Brendan Collins was doing in August 2019. She saw it as a “sidestep “did not apply for the position and hoped Mr Collins would get it. She was unaware of the salary linked to the advertised role. Ms Cotter contended this was the same job as hers, she cross covered in illness. Both posts carried the title contract specialist, and she was confident that she could do both professional and construction contracts. The Construction project stood at 2m. By end of November / December 2019, she looked over the contract issued to Brendan Collins and remarked there was a 7k differential in his favour and marked at grade 13. Ms Cotter described feeling angry which has remained throughout her attempts to remedy the situation. She acknowledged that the Respondents concession of grade 13 to her in March 2021, while welcome, became fraught when the financial upward alignment was paused during covid. She contended that it was “wrong on me “and the incorrect outcome as the pause referred to the “merit process” but not a grade change. She resolved to progressing a grievance in accordance with the respondent conciliatory procedure. She acknowledged that the 4-year protracted process was arduous and not respectful of the role she filled in the business. She argued that the Hay points system was new to her. She would have liked if the grievance had incorporated responses from human resources and her line manager. Ms Cotter confirmed that she had not received an outcome rationale document on the application of Grade 13 However, she had maintained a committed and flexible approach throughout this period, expanding her skills, filling in for changing workloads and covering Brendan Collins annual leave. Ms Cotter disputed the respondent reference to having to be a Quantity Surveyor in Mr Collins role. The roles had mirrored templates and were identical on a day-to-day basis. The job descriptions were virtually the same, yet her grading of 12 and Brendan Collins ‘grade stood in stark contrast and could only be explained by her gender and family status. Ms Cotter distinguished her set of facts from those of Teagasc as she submitted, she demonstrated a more incisive knowledge both roles at issue. During cross examination. Ms O Flynn sought a direction based on the absence of the burden of proof in the case. I explained that I wished to reserve my position and hear the whole case. Ms Cotter disputed that that the job undertaken by Brendan Collins was different. She said that it “was the exact same job “ Ms OFlynn put to the complainant that her family status was not different to that of her comparator. Ms Cotter was not definitive on this. Ms O Flynn put to the complainant that there was no correlation between her performance ratings after maternity leave and the discrimination claim as the complainant had been marked “as meeting expectations “ The Complainant confirmed that her rating may have been linked to the Union grievance. Ms Cotter rejected that she had delayed in raising a grievance from the moment of concern in 2010. She had waited as a mark of respect to her managers assurances that he was bringing her objective for grade change to human resources. “You don’t jump your manager “ Ms Oflynn reminded her of union presence, available for representation at any time before the eventual grievance of 2021. Ms Cotter accepted that she had filled the role of union representative. The Complainant recalled that the Union had a parallel claim, and she just hoped the topic of her regrade would be resolved. Ms Cotter accepted that she first asked in 2010 and she completed her role evaluation request in early 2019. Ms Cotter recalled that Mr Quill looked at the draft in October 2019. “I think he wanted to put role a certain way. He removed maintenance.” I didn’t agree. In response to Ms O Flynn, the complainant accepted that she had not challenged Mr Mc Quills approach. She rejected the inference that she had delayed 14 months in compiling the template as a precursor for job evaluation. “These are things I don’t do every day “Ms Cotter accepted that she had training in Evaluation from human resources. She disputed covid pandemic as a block for the activation of grade 13 as the staff were working throughout. She did not accept the company reported losses of 92m. Ms Cotter knew of Mr B who had also been regraded from 12 -13. Ms Cotter acknowledged the grade 13 was a significant development. However, she was disappointed at the percentage applied to her, 93% grade 13 from 100% grade 12. Ms O Flynn referred to the 28 May 2021 Teams Grievance Appeal Meeting with Ms Brewer, when she pointed to the complainant’s apparent confirmation that she would need help to undertake Mr Collins role “With some help “. Ms Cotter disputed that she had given a different account in her earlier evidence and reaffirmed that that there were” just different categories of spend “. She distanced herself from applying for the position assumed by Brendan Collins when she said that she had no reason to apply as she was resident on the senior leadership team over maintenance and construction. The Complainant acknowledged that the complainant was offered a further review of her position and placed it in a chronology of “after external mediation “ She concluded that both she and Mr Collins sat at the same desk and reported to the same line manager. Mr Collins had not undertaken Bills of Quantum. I asked the complainant if her acceptance of the terms of 29 March 2022 letter was in fact “full and final? “Ms Cotter confirmed that the respondent had not sought to execute that. She did not accept that she was bound by this. Ms Cotter confirmed she had been replaced during maternity leave. Evidence of Brendan Collins by oath Mr Collins came to hearing with a strong sense of disagreement in how the respondent had described the complainant’s role and the interface with his position. He completed his evidence with an incredulity in that regard. He submitted an outline dated 23 September 2024 which placed his entry salary as 79,000 on entry from contractor to direct employment status. He was highly complementary of the mentorship demonstrated by the complainant. He outlined that Ms Cotter cross covered for him in absence and for their senior manager. “Sinéad and I had very similar job scopes and everyday tasks. We both worked on commercial management of vendors, contract negotiations, supplier relationship management, and procurement of services. Our work scopes were identical for all intents and purposes “ He outlined his experience in oil and gas as a Contractor from 2017, prior to applying for the Contracts Specialist role in August 2019. He had received a job specification from the Agency. He recalled that the role was very similar to a permanent role. He confirmed that he had qualified as a Quantity Surveyor in 2003 but had not worked in that capacity since 2008. He acknowledged the “great system, all-inclusive rate “operational at the Refinery. He placed the complainant as a central force in his on boarding “we were a tag team “ He outlined that contract administration was now far more buoyant than the earlier remoteness of quantity surveyor and both he and Ms Cotter were interchangeable in their management of purchase orders. Ms Cotter “had the knowledge “and was capable of executing all 14 contracts. He noted that there were no notable changes in his role prior to the position being advertised on social media in 2019. He applied but did not receive a full description of the role. Mr Collins confirmed that he enjoyed his work at the refinery. The first he knew of grade 13 when it was declared at job offer stage, which turned out to be non-negotiable employment. He recalled his interface with the complainant in the wake of his receiving his terms of employment. He saw her as Mr Quills “right hand person” and was horrified when he learned of her salary issues. He began to have doubts on accepting tenure as he knew that Ms Cotter could do all of his work with a deference to Mr Quill, “if in bother “. He did not recall being subject to 6 monthly reviews and was clear he now had a wage differential in his contractor role. He acknowledged earnings €77-84k in 2022 plus health insurance. Mr Collins confirmed that both he and Ms Cotter undertook the same work, in similar conditions and were interchangeable for the whole period of hi employment. If there were differences, they were not material. He had not advised Ms Cotter on challenging her salary status. During cross examination, Mr Collins stood back from agreeing that “he was a very good friend “of the complainants and outlined a minimal contact post his departure in May 2022. He consistently disagreed on the illustrated differences in both his role and that of the complainant. He acknowledged that the QS (Quantity surveyor) skill was in “hot demand “and linked to his being hired. However, direct employment equated with a pay cut for him, which was disappointing. He regretted that he had not pushed for more. He refuted that he had undertaken a new standalone Corkbeg 2022 project. He accepted that he had been delegated this, but it was tendered by the Engineering division. He did not accept the Respondent reliance on his engagement on contracting projects at the Refinery. Conclusion: Mr Turner, on closing reflected that this case displayed a disconnect between the complainant and the respondent. Mr Turner concluded that the complainant had raised issues of her grading from 2009 to 2021. In seeking to clarify the “full and final “proposal of March 2022, he argued that it would be unjust to rule the complainant out on her acceptance of the 10% pay increase from May 2022 and argued strenuously against this action. Ms Cotter had trained her comparator and his predecessors. He confirmed that Mr Finn had stated in evidence that both Ms Cotter and Mr Collins had worked the same type of formatted contracts. Their work was interchangeable as they worked from the same office and reported to the same manager. The work was of equal value. The Complainant is troubled by the delays surrounding her grievance in addition to her grade level. She had lost out through her absences on maternity and family leaves. Mr Turner lamented the lack of an Accountants report on both parties’ earnings and disputed the Respondent contention of €6,030, preferring the figure €17, 858.42. Mr Turner confirmed that Ms Cotter was not treated equally on gender grounds. She should receive €50,000.00 as compensation in respect of the Discrimination directed towards her. |
Summary of Respondent’s Case:
The Respondent operates Irelands only Oil Refinery and has denied the claim for equal pay. The Refinery opened in 1959 and supplies 40 % of the country’s petroleum product needs. The Refinery was transferred to the Irish State in 1982 and transitioned through a series of ownerships. The Refinery is family owned by Irving Oil since 2016 and employees almost 300 direct employees with a large supplementary contractor workforce. This is a global entity, headquartered in Canada. The workforce is comprised of shift workers, day staff and staff who are involved in Laboratory, production, and maintenance. The Respondent outlined the Complainants service history from April 2000 to present day which covered a number of job titles and performance ratings. Ms O Flynn for the Respondent acknowledged that the Oil Refinery Industry is comprised of a predominantly male workforce. The Refinery is keen to hire female employees and hosts a number of benefits to supporting family friendly working, all of which the complainant has availed of. 1 enhanced maternity benefit to full pay for 26 weeks 2 Parental leave in units of days 3 Flexible Work Policy Ms Cotters current title is Contract Specialist, Professional Services and Procurement Excellence within the Supply Management team. Procurement. 2000-2005 Student in Laboratory Technician 2005-2007 Six Sigma Black belt secondment August 2009 BCL graduation 2007-2015 Project Controller 2015 -2017 Contract Agent IACCM trained 2017 -2024 Contract Specialist. The Respondent, Irving Oil ltd acquired the Refinery from Phillips 66 in September 2016 without the transition of a large component of the complainant role on “e payables “. Instead, the Complainant focussed on the transition of company’s systems SAP and Oracle. The complainant became conversant with “ERP “system Enterprise Resource Planning a software management tool that “controls manufacturing supply chain functions “not at optimal level post transfer. Ms O Flynn outlined that the complainant took on administration of contract management for IT Canteen Cleaning and Facilities From 2017. By November 2017, Contracts and Procurement Specialist was the complainants job title. She had begun to negotiate rates on contracts, working to the overall responsibility for negotiations on larger contracts by Adrian Quill. From February 2019 to October 2019, the complainant completed a template for job evaluation under the Hay Method. (skill, effort, responsibility, working conditions and pay equity complaint and gender-neutral evaluation system) (Refinery range SGL 9, Salary Grade Level 9 to SGL 18) This was augmented by Human Resources, who made a provisional grade 13 and her manager. It was then sent to Canada HQ for final evaluation. Grade 13 was endorsed but was overtaken by a caveat of a covid 19 related pay pause. She was not alone in that categorisation or pay pause. The Respondent exhibited the 22 March 2022 Supply Team Organisational chart. The Respondent rejected the claims for equal pay on gender and family grounds. Ms Oflynn submitted that there is a clear distinction between Ms Cotters role and that of Mr Collins. She argued that the complainant was not engaged in like work, similar work and /or work of equal value and/ or that the differences (if any) in pay were attributable to grounds unconnected with the complainant’s gender or family status. Section 7(a) (b) or (c) of the Act. Ms O Flynn submitted that the complainant cannot satisfy the burden of proof in her historical arguments as they predated Mr Collins appointment. She placed the reference period as December 2019 -June 2022. Adrian Quill was manager to both. The position which Mr Collins filled was advertised in 2019 and the Complainant did not apply. The Comparator Brendan Collins (2 December 2019 to 3 June 2022) Brendan Collins performed the role of Contracts Specialist (Construction / Maintenance Contracts) The Respondent rejected Mr Collins as a Comparator for the purposes of the Act. Pay Determination, Irving Oil. Staff Grades. Collective Agreement. Salary Grade Level (SGL) Salary Scale for applicable SGL Performance Related Pay and Merit bonus Section 2.2 Salary ranges for job bands, Collective Agreement, 2000. Hay recommended that the company should align its salary ranges with the oil/pharma/ chemical industry in Ireland with the midpoint of the range representing the market median of the comparator group. The salary ranges developed, extended from 80% to 120% of the mid-point salary. Salary ranges will be adjusted to reflect economic increases approved by the Board and will be reviewed from time to time to measure their competitiveness. Cross match 15 companies Cork/ Dublin. Pay progression is signalled by promotion or job evaluation. SGL 2022 12 SGL min €55,022 mid €68, 778 max €82, 534 13 SGL min €63,788 mid €79, 734 max €95, 680 14 SGL min €74, 418 mid 93,023 max €111, 627
Performance Related Pay Merit and Bonus: These are annualised payments paid in March and May and are subjective calculations. Grievance: On 15 March 2021, the Complainant raised a grievance on her past request for review and resultant inaction, current grade evaluation and salary level were incorrect and less favourable treatment than Brendan Collins. This was managed by Kristy Brewer, Director of European HR Operations and supported by Unite Trade Union. On 30 September 2021, it was not upheld. Independent Mediation was agreed as a next step. In the interim, the Respondent proposed a role review to the complainant. This was not accepted. Mediation did not resolve the dispute. The Union proposed a role review, which was accepted and acted on by the Respondent. The Salary Grade level remained unchanged. On 29 April 2022, the Complainant was informed that her salary would increase by 10% from May 1, 2022. Evidence of Ms Trish Leahy (on oath) Ms Leahy outlined her experience at the business prior to becoming Human Resource Manager in 2022. She confirmed that she was the most senior Human Resource presence at ground level and reported to Kristy Brewer. She recalled the transition to Irving oil in September 2016. Ms Leahy confirmed that she provided a blank job template to the complaint on her request in February 2019. The next step was compilation of a job description based on education and skills. Job evaluation is based on objective grounds “as if we were going to market “ The complainant presented a draft document, which was further adjusted by both she and her manager, Mr Quill. She received it back in January 2020. She understood that both the complainant and Mr Quill had reached consensus on the captured role and didn’t look behind the delay. Mr Leahy applied the Hay methodology and graded this at 13. In March 2020, she forwarded it to the “Compensation Benefit team in Canada ““for a second pair of eyes. What followed was not expected. Whitegate became an essential site during covid, new schedules issued, 100s of millions of financial losses and the respondent sent people home, in “this very difficult time “ Ireland unlike Canada did not have job losses. Canada delayed on the second review. During quarter 1, 2021, Ms Leahy met virtually with the complainant and her line manager, Mr Quill and confirmed the upward adjustment to 13, but the inability to apply the pay increase at that time. There were no merit increases in 2021. These were recommenced in 2022. Ms Leahy confirmed that the complainant registered her disappointment and activated a grievance as she had not secured a grade 14. Ms Leahy disputed that a grievance “was not the one thing “and termed it the “bread and butter of human resources, particularly in issues of pay. She distinguished Sinead Cotter: Professional Services From Brendan Collins Construction Services Hay is gender blind. It was actioned as an international job evaluation. She had completed training in this method. Process: Know how, Problem solving, accountability. Dimensions: scored against a points model on guidance chart. “Job sizing “ Performance: This co -exists with the local subjective measurement of performance on merit and bonus (discretionary, end of year). There is no baseline before a candidate can seek evaluation. Ms Leahy was unable to confirm if Hay was equality proofed. Prior to 2010 performance was 1-3 exceeded expectations, strong performance or below expectation. Since 2010, there are now 5 points.
Ms Leahy confirmed that Mr B, another contract specialist was successfully reviewed and marked 13, with payment from May 2022. The Complainant received 10% pay increase. During cross examination, Ms Leahy confirmed that she knew the complainant for 20 years. she did not have regular contact with her. She did recall directing the complainant to a grievance in 2015. Ms Leahy had not inquired into the complainant’s expectation of the grade she sought during the evaluation. She was not interviewed as part of grievance. Ms Leahy confirmed that she had “levelled up the pay scale “by 10% but denied manipulation. She reaffirmed the pay pause to Mr Turners disagreement. In redirect, Ms Leahy confirmed that Hay 2000 was a plant agreement applicable to 150 staff. The complainant had not raised her family or gender status as she set off on the evaluation in 2019. Evidence of Adrian Quill, Supply Manager under oath Mr Quill outlined his area of operational responsibility. He relied on the supply team organisational chart. Services, construction, mechanical, installation pipes, scaffolding at height and electrical. He worked with the complainant in 2006, while she was undertaking Lean. They overlapped for a year. He submitted that from 2010 onwards, the complainant began to ask for an upward adjustment from her grade 12. She was unhappy with job title of Project controller. He told Ms Cotter that hers was a 12 position “unless material substantive changes occurred in the role “This was not well received, but “I gave her an answer “. He recalled that the from 2010 to 2014, the complainant was on leave and there was 1 review at year end. The Complainant framed her targeted upgrade at 13. She did not mention 14. Mr Quill recalled the Construction Services position, which was widely advertised. Ms Cotter did not apply. Mr Quill prepared the job specification in August 2019. He went on to interview and selected Brendan Collins. He submitted that the QS qualification was fundamental for navigating and overseeing variation notices in commercial contracts. He explained the importance placed by the refinery on this “piecework “approach. Unmanaged variations had cost implications for the business. There were 100 variations some months. He was forthright in his declaration that Ms Cotter was not managing the “same level of commercial risk “as her work centred on the catering and cleaning services (hourly rate) All 3 of Brendan Collins qualifications fed into the skills needed in the 2019 position. Mechanical Engineer, QS, Professional Member Ms Cotter did not hold the Q/ S or B. Eng or resultant experience in that field. Mr Quill completed Brendan Collins probation. He was unaware of any visible absence by the complainant and did not notice a deterioration in her mental health at that time. Mr Quill submitted that Ms Cotter was not qualified in commercial oversight. She and Brendan Collins were not “interchangeable in full “. Different spends Ms Cotter 4.3 m. Mr Collins 15 m. Ms Cotter did not carry the skills, qualifications, or experience for the job that Brendan Collins accepted in 2019. Ms Cotter covered the “care and maintenance” basis only, not the larger industrial jobs. He did not have documents which explained care and maintenance. Ms Cotter administered and oversaw. She did not manage. She did not complete rate sheets. The commercial risk was most pronounced in the Gas and Electric areas, and the nature of those negotiations was totally different. Mr Quill recalled supporting Ms Cotters bid for move to grade 13. He agreed the role profile document and revised title of contract Specialist rather than Project Controller. He made a distinction in both roles at the centre of the case when he described Ms Cotters role as static, foreseeable and good performer with Mr Collins as fluid, variations, and classic QS. During cross examination, Mr Quill disagreed with Mr Turner on the longevity attached to the claim for upgrading. He recalled the complainant asking him around June 2012 “can you see what you can do “He said he was unable to do anything as the job was properly positioned. Various people implemented templates. In referring to 2014-time frame and keys to success, Mr Quill confirmed that through self-assessment undertaken the complainant was assessed as an Associate and was changed to Professional category on 2 April 2015 He refuted the complainants and Brendan Collins analysis of the amount of construction work on the plant when he submitted that detailed construction was ongoing. There were new parts every year, true not of the scale of children’s hospital, but clarified as construction and maintenance. He confirmed that the complainant was not constrained in having to wait for approval to “kick off the evaluation “ In relation to the complainant being requested to remove comments from Navigator, he replied that people had been asked not to use Navigator as a showcase for employee comments against the background of a union dispute.
Ms Cotter was the first female in the Dept. He was unaware of any issues arising out of any of her absences or return from maternity leave. Mr Quill was not involved in the job evaluation. He concluded that the work of Sinéad cotter was valuable but not of equal value or interchangeable with Brendan Collins. Brendan Collins did cover for Ms Cotters annual leave. Evidence of Declan Finn former Contract Specialist Procurement, under oath Mr Finn works on the Regional Leader team. Mr Finn was a previous incumbent to the role held by Brendan Collins .2009- 2013 He disputed the complainant’s rejection of the centrality of the Q/ S qualification / experience for the role. He submitted that the technical nature of the job distinguished it from Ms Cotters job to the point where they were not interchangeable. He acknowledged that Ms Cotter had trained him, “but not in all aspects of the job “He listed SAP, Purchase Orders, and other computer packages. He delineated Ms Cotters role as Administrative and Mr Collins as Construction. He detailed that significant construction work is completed at the Refinery where constant projects are live on site in pursuance of refurbishment and regulatory requirements. He told the hearing that as the only refinery in the country, it was flammable and required 24/7 maintenance as nobody could afford a mishap. A crew of 7 are anchored at cork beg. The Refinery has areas dating back to 1957, 1996, 2004 and 2012. Mechanical work 150-200 pipework, at 2 km per year He confirmed that Brendan Collins played a significant part in this construction division, drawing on the coveted Q/ S qualification and experience. He outlined a live project from 2022, described as a 2-stage tender which proved challenging. He outlined the large scale of this in identifying the right contractors and scheduling rates. Design was incomplete. Mr Collins left at the signing of that contract. During cross examination, Mr Finn acknowledged the complainant’s centrality in the service “she was a trusted sounding board as she knew every aspect “
Mr Finn disputed that the jobs were interchangeable during his tenure 2009-2019 and they were not at one on job specification. He endorsed the “need to be au fait with Q/ S.” Contract templates were different. He clarified that the position was graded at 13 when he worked in the role. Evidence of Kristy Brewer on hybrid Ms Brewer works as Director of Human Resources and Operations. She managed the sign off on the grade 13 and the subsequent grievance on appeal. Grade 13 93% mid-point was awarded to Ms Cotter but “there was no change in compensation “as this was prohibited by universal pay pause against salary and merit payments. This was an agreed. “Pay Pause “with the Unions in the midst of significant financial challenges. The Complainant was represented by her Union at all discussions. Ms Brewer was clear that Ms Cotter had not raised a formal grievance on her grading prior to March 2021. This process was open to her during her reported pursuance of the upgrading but remained unutilised by her. “It was open to her to act sooner “ Ms Brewer outlined the 2-step evaluation through local and central human resources “2 sets of eyes “. She understood that the complainant was frustrated by lack of financial uplift. The Respondent committed to reviewing this once the pay pause lifted. She recalled her engagement with Ms Cotter during the grievance when she declared that she would need some help if she was to undertake Mr Collins role. Ms Brewer was shocked that the complainant’s position had changed at hearing. She was struck by her differing approach during the grievance and now at WRC. Ms Brewer was certain that the complainant distinguished both roles and identified “help to do the role “as the distinction. Rate for Brendan Collins job. Ms Brewer confirmed that the job rate was not posted on the job advertisement but was available from human resources. Ms Brewer concurred with Mr Quill when she set out that “role growth and function “was the headliner rather than personal attributes in the case of job evaluation. In determining that the hay process was gender blind, she added that “the individuals name is not on the role profile submitted “complexity of the role is key. Ms Cotter had not demonstrated role expansion to merit grade 14. Ms Brewer moved to September 2021, when in the face of the complainant’s enduring frustration, she offered to re-evaluate the position. An Independent Mediation followed. However, the matter remained unresolved. The complainant accepted the offer of re-evaluation and was awarded a 10% pay increase in May 2022. Ms Brewer did not accept that the complainant had been discriminated against on equal pay front. She recounted her own experience of company supports for her personal circumstances. She added that female career development is strongly emphasised at Irving. During cross examination, Ms Brewer countered Mr Turners reliance on Mr Quills exclusion during the grievance interviews. Ms Brewer said “I was aware of his work “. She had requested further information from Ms Leahy but did not interview her. Mr Turner contended that lack of investigation led to an unfair procedure. Ms Brewer did not agree and confirmed that full consideration was given to the grievance and Ms Cotters submissions.
In closing Ms O Flynn confirmed the complexity of this case and reflected once more on the sensitivity of a live employment relationship. She spoke to the Respondents objective as an important employer and commercial entity to guard and defend its reputation against Discrimination. She argued the Respondent had completed “a fair defence of the claim “ Ms Oflynn pointed to the application of Section 7 to the compelling and clear evidence from Mr Quill and Mr Finn on a denial of interchangeability. Ms Cotter had not undertaken the same work. She pointed to the Aerogel project. Ms Oflynn contextualised the complainant’s own distinction between the two jobs in Ms Brewers engagement at grievance, when Ms Cotter confirmed that she would need help if asked to complete Mr Collins job. She summarised Mr Quills comparative analysis on the distinctions in skill, mental agility, working conditions and qualifications. Ms O Flynn countered that the work of both Ms Cotter and Mr Collins was of equal value and Mr Collins was not an appropriate comparator. The Respondent respected Ms Cotters work but relied on the market forces as the justification for awarding Mr Collins a higher compensation. The evidence of Ms Leahy and Mr Quill supported this. Ms O Flynn contended that the Complainant had failed to discharge the necessary burden of proof in Section 85 A. Reliant on Teagasc, she disputed that Mr Collins and Ms Cotter had not undertaken like work which did not cause the burden of proof to shift to the Respondent. The Complainant had not engaged in a cross analysis with Mark Mc Carthy, who held family status and was a contract specialist on her team, who travelled to grades 13 and 10% pay increase concurrently with the complainant. She emphasised that the Respondent had placed Ms Cotter on salary grade level 13 from level 12, (Hay Methodology) were impeded by pay pause in 2021 and revisited this early in 2022. This concluded in a same grade outcome, albeit with a 10% pay increase from May 1, 2022. By means of closing written submission, the Respondent restated the distinctions between the jobs of Sinéad Cotter, Brendan Collins and previously Declan Finn. There were distinguishing features other than gender for why Mr Collins was placed on a different pay band. Ms O Flynn emphasised the distinction between completion of purchase orders which did not equate with contract management. She drew a distinction in the commercial risk and Q/ S skills absorbed and practiced by Brendan Collins which separated his work from that of Ms Cotter. The Respondent relied on the comparative analysis undertaken by Adrian Quill January 2020 – June 2022, the tenure of Brendan Collins in direct employment. Ms Oflynn submitted that Ms Cotter was bound by her acceptance of the rebalancing exercise in her pay in May 2022 as she had accepted this offer one week after referring her claim for equal pay to the WRC. Ms Oflynn raised again the co-existence of Mark Mc Carthy, who did not give evidence for either party, but who had his job evaluated side by side with the Complainant, received a static up lift to SLG 13 in March 2021 and had the pay pause applied to him. He shared the complainant’s family status. Pay for Grade was calibrated by the Hay model, agreed at the plant and functioned objectively, skills, qualifications, market forces. Pay for performance was calibrated subjectively and Ms Cotter was a high performer. Ms O Flynn directed attention to the Code of Practice on Equal Pay and concluded by contention that the complainant could not prove like work or work of equal value so as to place any further burden of proof on the Respondent. |
Findings and Conclusions:
I have been requested to make a decision on the claim lodged on 23 March 2022 at 16.35hrs by the Complainants Union. The narrative of the claim on type of discrimination is listed as “I have not received equal pay “, where gender and family were the submitted grounds. I did not receive equal pay because of my gender. I did not receive equal pay because of my family status. It is regrettable the number of delays which preceded the first case management hearing in January 2025. I make this comment due to the live and enduring employment relationship present. With that in mind, I am satisfied the parties did try to settle this case amicably, however, this was unsuccessful. In reaching my decision, I have had regard for the expansive written submissions from both parties and the evidence adduced at hearing. Both Parties were ably represented and supported, which permitted the hearing to run smoothly. I appreciate that the in depth probing of each party’s stated position may have been challenging at times. However, it was vital for me to obtain the facts in this case, mindful of the long lead in period to hearing. I will now address some preliminary issues. 1 The Bandwidth of the Complaint. 2 The Collective Agreement on Hay Methodology, 2000 3 The letter which confirmed payment of 10% pay increase from May 1, 2022. The Complaint: At first glance, this complaint read as an Industrial Relations claim. 1 A claim for grade level 13 since 2009/2010 had not been actioned. 2 A company changeover in 2017 justified grade level 14. 3 A fellow contract specialist was hired in December 2019, placed on grade level 13 with a pay differential of €10,000 to her. 4 Both are contract specialists, albeit “managing different categories of spend “. 5 The Complainant has taken on more responsibility. 6 I should be on grade 13 from 2009 /2010 and on garde 14 since 2017. In my preparation for hearing, I wondered if this was a pay claim as the Contract Specialist was not highlighted as male with an identifiable family status? I appreciate that the claim was clearly marked as an Equal Pay complaint further in the narrative. The Parties have since clarified that this is firmly a claim for Equal Pay under Section 19 of the Employment Equality Act 1998. In Mr Turners second submission to the WRC, dated 28 March 2025, he sought to include at 4.2 that there were clear patterns linking the complainant’s maternity and parental leaves in a deterioration in her performance reviews. This would indicate a complaint of equal treatment. He sought the application of the Supreme Court accommodation in Louth/ Meath Education and Training Board and Pearse Brannigan [2016] IESC 40 at para 61 to expand the focus of the case. The Respondent said they came to hearing to answer a claim for Equal Pay and were opposed to any late-stage augmentation. I have considered both Parties submissions on this point. I have considered Mc Menamin J As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. In Brady, Collier, Mahony, Swan and Thompson v Fás EDA 1010 at the Labour Court, This was a case where the complainants, 600 grade 11 workers (admin) alleged they were treated differently to 1000 instructors who were permitted a service-related ascension to higher pay scale rather than competitive process. The Complainants contended that this amounted to indirect Discrimination contrary to the Act and equal treatment directives of the European Union. Finding in the alternative, the Court It is accepted by both parties that following a number of decisions and in particular in the decisions referred to later in this Determination the ECJ (now CJEU) has held that a claim grounded on the same set of facts may be brought alleging unequal treatment or inequality of pay but not both. Equally the ECJ has held that a claim for equal treatment may not be disguised as a claim for equal pay and vice versa.A decision was required. Garland v British Rail Engineering 12/81[1982] 1 CMLR, Gillespie v Northern Ireland Health and Social Services Board C-342/93 and Mc Kenna v Northeastern Health Board C-191/03[2005] Nimz Freie und Hansestadt Hamburg C-184/89 ECR 1-297, on the rules governing the system of salary classification. Ms Nimz had complained that a salary progression linked to at least three quarters attendance rate was indirectly discriminatory. The CJEU held “ …. The rules governing what is practically an automatic reclassification in a higher salary grade come in principle within the concept of pay as defined by Art 119 of the Treaty “ In Brady et al, the Labour Court held the case was “properly classifiable as one of equal pay and not one of equal treatment. An issue is one of equal pay where there is a dispute in relation to a provision which. (a) Relates to a particular occupation or the performance of certain work and (b) determines automatically and unconditionally the amount of a worker’s pay. Where a dispute concerns a provision, criterion or practice which provides a worker with the opportunity or potential to obtain enhanced pay, without regard to the work done, it is properly classifiable as an issue of equal treatment. In the instant case, the Complainant has claimed that she has been denied Equal Pay and that her salary grade progression was less favourably applied than her chosen comparator on family and gender grounds. I must treat this as a complaint of Equal Pay covered by Art 157 of the Treaty of the Functioning of the EU, formerly Art 119, EEC and Art 141, EC. I will advance in the case and pursue my investigation on like work in accordance with section 7, 19 and 28 of the Employment Equality Act 1998. 2. The Collective Agreement on Hay Methodology, 2000 The Respondent exhibited Salary Administration Manual from October 2000, attributed to an earlier Operator of the Refinery. Irish National Petroleum Corporation This suggests to me at least that this Document prevailed through the successive change in Owners culminating in the Respondent in 2017. It has not been rebranded. Both Parties accepted that this document and system was endorsed by the Union as a “Systematic salary administration for all locations “ The objective. 1 Maintain a competitive position attract, retain and incentivise. 2 equitable salary relationships based on performance and responsibilities. 3 cost control 4 Legislative compliances It involved 1 Job bands 2 salary ranges to job bands 3 performance appraisals “Each year a policy will be agreed defining the level of salary increase that will result from each level of performance as defined by the end of year review “ 4 salary review A section on job descriptions at 5.0 emphasised the centrality of an updated and accurate job description. It is of note that the complainant came to this case with a pronounced absence of a relevant on point job description until 2019. Both Parties should reflect on that enduring omission. However, I wanted to capture the Section 6.0 on Hay Evaluation Methodology. “It is the degree to which the jobs are seen to require know how and problem solving to discharge. Accountability which tends to influence views on the size of the various jobs and this in turn influences the salary levels that are paid for the various jobs in the Organisation “ This document formed a Collective Agreement on Pay determination at the Respondent Refinery. The Union has not submitted the Collective Agreement as a complaint in accordance with Section 86. Dept of Finance and 7 named complainants EDA 068 Reference of collective agreements to Director General of the Workplace Relations Commission. 86.—(1) If the Authority or a person who is affected by a collective agreement claims that a provision of that agreement is null and void by virtue of section 9, the Authority or that person may refer the question of that agreement to the F162[Director General of the Workplace Relations Commission]; and in this section (and section 87) the Authority or the person making such a reference is referred to as “the complainant”. (2) For the purposes of this section (and section 87)— (a) the expression “collective agreement” shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9 (3), (b) a person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it), and (c) “the respondents” means the parties to the agreement, other than (where relevant) the complainant. The Parties did provide detail on an Independent Arbitration Report from June 2015 by Brian Aylward. This predated the current respondent tenure. The background to this arose from a LRC conciliation on a pay claim and a variable cash incentive program by Unite the Union. The Report addressed whether the salary increase paid to staff in 2011/12/13 and 2014 was in line with Hay? It also addressed the decrease in 2014 bonus attributed to IR/ Industrial Action issues. The matter went on to a full hearing of the Labour Court, which culminated in LCR 21421 in March 2017 which included the complainant and Union here listed. Having considered the submission of both parties the Court recommends that (i) the recommendation of Dr Alyward should be implemented and the employer should pay the gesture of goodwill payment on acceptance of this Recommendation; (ii) without prejudice to the terms of the 2000 Pay Agreement and in recognition of the transition from national wage agreements to merit only, the employer should pay those Union members whose pay increases were less than 2% for each of the years 2014 to 2016 a payment to bring those increases up to 2% for each of those years; and (iii) for the future the parties should apply the Hay Merit System process as per the 2000 Pay Agreement. It is clear to me that Hay on performance rating and job evaluation was visible throughout the changed ownership of this business. I accept that the Complainant was on the Union Committee and would have had peculiar knowledge in that regard. For me, this stands in contrast to her stated lack of familiarity with the process. I found an omnipresence of the Hay Agreement during the Complainants tenure of employment. I found the complainant present at times of challenge of the applicability of this Agreement in the workplace. However, this Agreement has not been challenged in accordance with section 86 of the Act. I continue with my investigation. 3 The Pay Increase of May 2022. Without prejudice to my investigation on the substantive issue of the claim for equal pay, I found some correspondence presented by the parties as being consistent with the conclusion of the workplace grievance but overlapping with the WRC complaint of 23 March 2022. 1 Independent Mediation concluded in February 2022. 2 An earlier December 2021 proposal of resolution for the workplace grievance was relaunched as a repeat role review on 29 March 2022 “If your client accepts the outcome of the reviews, this will constitute a full and final resolution of the matter “ 3 The Union referred the instant case to the WRC on 23 March 2022. The Respondent was notified of the WRC complaint on 25 April 2022. 4 On 28 April 2022, Human Resources sent an email directly to Ms Cotter confirming that the outcome of the reviews had yielded a 10% salary increase from May 1, 2022. In light of the 29 March 2022 letter on “full and final resolution of the matter “and given the clear cross over in the WRC complaint, I asked the complainant if she had accepted this pay increase? she confirmed she had. I canvassed her views on whether it was in full and final resolution? She said no as that clause had not been executed by the Respondent. I have not had sight of the Union response to the 29 March 2022 letter. I accept that the Complainant engaged fully in this proposal and accepted the pay increase. The Respondent has now submitted that the complainant is estopped from progressing her case for equal pay. Mr Turner for the complainant has petitioned against this act, which he submitted would be unfair and unjust. For my part, I would have liked to have met the Union Official involved in this case as the divergent approaches of referring a case on the same facts to the WRC during a live proposal for resolution, with a full and final rider, caused me to want to know more. I have considered this point very carefully. I have revisited the complaint form once more to assess for any mention of a concurrent live proposal of resolution in open correspondence. There was none. My last correspondence on file from the Union to Respondent was dated 24 February 2022, which sought clarification of the proposed forthcoming reviews. I find it would be unfair to the complainant to rule her out of consideration of her substantive case. I note the findings of the High Court in a binding Settlement Agreement in Sunday Newspapers Ltd v Kinsella and Bradley [2008] 19 ELR 53, where the Court held that the complainants could waive their rights to progress a statutory claim on informed consent and proper union/ legal advice in the context of a Settlement Agreement. In the instant case. I can see that there was a live Industrial Relations proposal to resolve the ongoing dispute activated in March 2021. The Complainant accepted the terms of this IR proposal after she had made her WRC complaint on March 23, 2022. The Parties ought to have engaged at that point on the weighting of the proposal and any impact it may have had on the WRC complaint. I can find no evidence of these discussions. I accept the complainant evidence that the Respondent did not step forward to execute the “Full and final” clause. I will conclude by drawing a distinction between the April 28, 2022, correspondence on role review and the required components for a waiver of statutory rights. The respondent did not have a monopoly in addressing the “full and final “component. The Union also had scope to address this. I reject the Respondent argument of estoppel for want of verifiable reports on either parties’ engagement on the “full and final “nett issues from March 29 March 2022 to May 1, 2022. I agree with Mr Turner, it would disadvantage the Complainant at this late stage. She should her claim addressed by the WRC after all this time. I am fortified in my belief that there has been a defined Industrial Relations background to this case. Teagasc v Paula Reid applied. I am strengthened in my views here on a careful reading of the High court case of C and D foods ltd and Dympna Cunnion and ors [1997] IIR 147 (Barron J.) in dismissing the appeal from the Labour Court on the authority for determination of equal pay under the Anti-Discrimination Pay Act 1974 that:
The Law Like work. 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. 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. The Burden of Proof: Section 85 A of the Act directs me to find as a first step inferences that allow me to conclude that the Complainant received unequal pay for like work o0r work of equal value with her stated Comparator. If those inferences can be drawn, the burden shifts to the Respondent to prove that the differential is not due to gender or family. “Applied to the present case, this approach means the appellant must first prove as a fact one or more of the assertions on which the complaint of Discrimination is based. A prime facie case of discrimination can only arise if the appellant succeeds in discharging the evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed “ Teresa Mitchell and Southern Health Board, Labour Court [2001] 12 ELR 201 Council Directive 2006/54/EC, Recast Directive implements the principle of equal opportunities and treatment of men and women. Article 157 of the Treaty of the Functioning of the EU sets out the principle of equal pay for men and women for equal work. Section 8 of the One of the present-day areas of surge of interest in the arena of employment law continues to focus on the impending transposition of the Equal Pay Directive by 7 June 2026 in Ireland. I have noted the complainant submission on the gender pay gap raised at the company. However, this occurred outside the reference period for the instant claim, but is a valuable precursor for the purposes of the impending transposition of: DIRECTIVE (EU) 2023/970 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 10 May 2023 to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms. One of the central components is found on salary range disclosures in job advertisements and joint pay assessments for pay gaps in excess of 5% PAY TRANSPARENCY Article 5 Pay transparency prior to employment. 1. Applicants for employment shall have the right to receive, from the prospective employer, information about: (a) the initial pay or its range, based on objective, gender-neutral criteria, to be attributed for the position concerned; and (b) where applicable, the relevant provisions of the collective agreement applied by the employer in relation to the position. Such information shall be provided in a manner such as to ensure an informed and transparent negotiation on pay, such as in a published job vacancy notice, prior to the job interview or otherwise. 2. An employer shall not ask applicants about their pay history during their current or previous employment relationships. 3. Employers shall ensure that job vacancy notices and job titles are gender-neutral and that recruitment processes are led in a non-discriminatory manner, in order not to undermine the right to equal pay for equal work or work of equal value (the ‘right to equal pay’).
Industrial Relations News 12 February 2026 captured an exciting development in Italy’s draft law, Schema di decreto legislative attuativo della Direttiva as part of its transposition of the Pay Transparency Directive. The deadline for transposition in Ireland currently stands on 7 June 2026. 1 pay level or pay range for a job must be disclosed in the advertisement for the job. 2 joint pay assessments I have included this as background for the current climate in Equal Pay. However, I have been requested to consider the complaint submitted on 23 March 2023. In this, I am mindful of the Supreme Court in NUI Cork v Alan Ahern and ors at the Supreme Court [2005] IESC 40 The case involved 46 security services operatives, predominantly male who alleged that they were being discriminated on grounds of sex on pay. Comparators were cited as female. employees across lab Aides and Telephone Switchboard Operators. Both the Equality Officer and the Labour court, following Workplace inspections found work of equal value, where the pay differential could not be justified on grounds other than sex. The Supreme Court considered that the significance of the comparator hours being extended in 1993, their reluctance to engage in the extension and their work being restructured on shorter hours. The Court looked at the context of the employment. The difference in pay arose from the University facilitation of the comparators family obligation and not based on sex. I must consider the surrounding circumstances and underlying facts of the instant case. To begin, I would made a number of primary observations in my pursuance of inferences of Discrimination in Equal Pay. 1 The Complainant has launched and consolidated her career at the Respondent employment from 2000. She has worked for a number of different employers on the same site. She has served under a number of different job titles. For me, at least, her automatic transition from grade 11 to 12 in March 2007 goes to the root of this case, albeit outside my statutory time limit for scrutiny. I found that this was an automatic award of promotion not visibly attributed to a job evaluation or competitive process and was headlined as a transfer / relocation to Project Controller. It may explain the complainant’s reticence in stepping forward to access Hay Evaluation of Grade 12 sooner than she did. She may have relied on her very strong contention of her centrality of the contracts department to trigger a reciprocal award. I am satisfied on the evidence that there was no bar to the complainant actioning a job evaluation before she did. In this, I am drawn to the evidence of both Ms Leahy and Mr Quill which clarified that Ms Cotter did not need anyone’s approval before submitting to job evaluation. I noted that the complainant pleaded a lack of familiarity with Hay. I can accept that may have had some bearing during her first evaluation; however, all matrices, documentation and rationale was shared with her during the grievance to the point where she constructed her second attempt at evaluation for grade 14 herself. I understood the complainant when she made reference to wanting a higher grade from 2010 onwards. I also understood that she worked to a number of job titles and job categories on her way to her present position as Contract Specialist. She has built her own pathway. This is in contrast to the evolution of the genesis of the Contract Specialist Construction, first filled by a contractor in 2008 and populated by 5 incumbents across a hybrid of direct employment and contractors. By her own admission, the Complainant was fully immersed in contracts and contract negotiations in 2012 and sought parity with contract specialist at Humber. I understand that the complainant expanded her role and responsibilities in the change period 2012 to 2019. However, she appears to have taken these on without a commensurate real time quid pro quo in salary. Throughout this case the Respondent has not sought to lessen the complainant’s role at the business. Without exception, the respondent witnesses placed her as a high performer and acknowledged her as go to person. This was endorsed by Mr Collins in his direct evidence. I understand some industrial relations issues occurred. The kernel of the case is a pronounced difference in opinion on whether the complainant did like work or work of equal value with Mr Collins in his capacity as direct employee, during the reference period which resulted in a pay differential. The Respondent came to hearing proud of their record on support for recruitment and retention of women in employment. The Complainant came to hearing without sharing this view and contended that she had been recast as peripheral following the arrival of her family, which has now manifested in unequal pay for her. I note Ms Brewers incisive September 2021 report which pondered just what happened to her listed goals for career expansion within the legal wing? I would acknowledge the depth of Ms Brewers handling of the grievance. I found she left no stone unturned in demonstrating the company response to the complainant’s grievance. It seems to me that the complainant may have lost her way somewhat with the repeated change of ownership at the plant and her undisputed loyalty to the plant. The Complainant has requested that this loyalty and omnipresence now be recognised and rewarded in pay. This was the foundation of her March 2021 grievance and has now crystallised as an equal pay claim. The Respondent presented the principles of Hay evaluation as more expansive than reward and pay. I note Ms Leahy’s comment that the grading reflected market preparation, which suggests a fluidity. The Complainant did not tender medical evidence of the deterioration she experienced in her mental health, and I could not discern any visible sign of this through absence record or dialogue with the line manager. The only absences I found were approved family related leaves. I accept that the Complainant felt she was an outlier in the contracts department. The Respondent does not share that viewpoint. Mr Quill was particularly strong on this and was candid on why he believed that grade 12 was pertinent until such time as the position warranted evaluation alongside another contract specialist in 2019/2020, Mr B, (Mc Carthy) I accept that Ms Cotter petitioned for this movement in grade. I would have liked to have engaged in workplace inspection in this case in accordance with Section 94(1) of the Act. I did consider my powers. However, I formed the view that it would not be determinative of a comparative analysis given the comparator had left the comparator job in June 2022 and had been replaced by a Contractor from August 2022, some three years prior to hearing. Powers to enter premises, obtain information, etc. 94.— (1) Subject to subsection (3), this section has effect for the purpose of enabling information to be obtained which the Director General of the Workplace Relations Commission or the Labour Court may require to enable them to exercise their functions under this Part; and in this section— (a) a “designated officer” means the Director General of the Workplace Relations Commission, the Chairman of the Labour Court , an inspector appointed under section 26 of the Act of 2015, an adjudication officer or a person authorised in that behalf by the Director General of the Workplace Relations Commissionor the Chairman, and (b) “material information” means information which a designated officer has reasonable grounds for believing to be relevant for the purpose set out above. (2) For the purpose set out in subsection (1), a designated officer may do any one or more of the following: (a) at all reasonable times, peaceably enter premises. (b) require any person to produce to the designated officer any records, books, documents or other things which are in that person’s power or control and which the designated officer has reasonable grounds for believing to contain material information and to give the designated officer such information and access as may reasonably be required in relation to the contents of any such records, books, documents or other things; (c) inspect and copy or take extracts from any such records, books, documents or other things. (d) inspect any work in progress at any premises.
Comparative Pay Analysis: Section 2 of the Act defines remuneration widely 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. In a claim for equal pay, there must be an actual comparator. Brides v Minister for Agriculture [1998] 1 IR 250. I have worked on Ms Leahy’s compiled Comparative Pay Analysis, pro rata earnings in direct employment. I accept that the complainant submitted employment details, but these were not standardised. On 2 December 2019 SC €88,109, pension excluded, bonus and health insurance included. BC €79,000, no pension or health insurance or bonus (complainant placed contractor earnings as €89, 761 gross) 1 January 2020 SC €87,826 health insurance and bonus BC €83,047 health insurance and bonus 1 March 2020 SC €90,157 as before, inclusive of 3.25% merit BC €85, 417 as before, inclusive 3% merit 10 March 2021 SC €87,196 bonus paid for 2020 *no merit paid in 2021 BC €94,360 bonus paid for 2020 borne out on complainant submission 1 March 2022 SC €90, 670, merit restored / Complainant detailed €92, 558 for 2022 BC €98, 287 1 May 2022 SC €98,295 10% pay increase BC €98, 287 I can discern that the Complainant began to earn less than Mr Collins on a pro rata basis from March 2021. This had levelled by the time of Mr Collins departure in June 2022 through the addition of 10 % pay increase in May 2022. The Complainant has continued to build on her merit and bonus payments in addition to her salary grade level %to an annualised €114,284 pro rata in 2024 This is a complicated pay determination system comprised of salary level grade, merit, bonus per annum. In the reference period, the complainant was upgraded but not paid the upgrade. Mr Collins remained on grade 13 for his entire tenure. Merit was withheld during covid and restored in 2022. Performance is measured for the year prior and paid going forward. The Complainant did not consider submitting a Section 76 request for information pre submission of her complaint. It may have aided her on precision. I appreciate that the complainant may not accept the above analysis. However, I have established a pay differential between the complainant and her chosen comparator I must now move to consider the application of Section 7 to the facts of this case. 1. The Complainant and her comparator were two of 4 positions which reported to Mr Quill in 2022 A. Buyer who was upgraded with Ms Cotter, Mr Mc Carthy SLG 12-13 B. Contract Specialist, Professional Services, Ms Cotter C. Contract Services, Construction Services, Mr Collins D. Warehouse Supervisor (no change) Ms Cotter submitted that she crosses covered Mr Collins role when he left. 2. By March 2025, this grid had expanded to more seniority for Mr Quill and a replacement supply manager since November 2024. The Contract Specialist in Construction has been at Contractor status since August 2022. There are two buyers and two warehouse technicians. For the purpose of the case, I have set out the history of the two positions under scrutiny.
The Employment History of Contract Specialist Construction Position and various incumbents 2008 to 2009 Contractor QS, Project Management, Construction 2010 -2015 Declan Finn, intermittent secondment. Contractor plus maintenance team redeployment due to hiring freeze 2016 continuance of redeployment 2017 continuance of redeployment. role posted in June 2017, no taker, Brendan Collins arrived as Contractor November 2017. 2018 Brendan Collins as Contractor 2019 Brendan Collins as Contractor. He became an employee in the role from December 2019 2020 Brendan Collins as Employee 2021 Brendan Collins as Employee 2022 Brendan Collins as Employee until June 2022 2022 onwards Contractor The Employment History of Sinead Cotter from 2000, Various positions all direct employment. 2000 Placement Student Laboratory 2001 - 2005 Lab Technician shift work 2005 – March 2007 Secondment, Lean, Law Degree March 2007 - March 2015 Project Controller Grade Promotion 11 to 12 March 2015 to 2017 Contract Agent July 2017 to present day Contract Specialist Grade up lift March 2021 to Grade 13, pay pause. Role reviewed first quarter 2022, no change in grade but salary reviewed, 10 % increase. Some family related leave from 2021, cross cover in colleagues and managers absence. The Comparator: I accept that Mr Collins is an acceptable comparator on gender grounds, but not on family grounds. The Hay Methodology for Job Evaluation: The IHREC code of Practice on Equal Pay emphasise the important of transparency in pay determination. In Handels- og Kontorfunktionærernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss, Case 109/88, focussed on the lack of transparency in a pay system and average pay of women is less than that of men in a relatively large number of employees, the burden of proof passes to the employer. Know how, Problem solving and accountability are cited as the three foundation factors in Hay. I note that the evaluation is submitted without gender identification. In the instant case, the Complainant was not provided with her job evaluation score in March 2021. This was provided in the context of the grievance in May 2021 at 353 with an extensive range of job descriptions of Mr B who shared in the upgrade and Mr Collins job description which predated these. Mr Finn told the hearing that he was an SGL 13 during his tenure for the Construction Services post which speaks to the longevity of the SGL 13 for this position. I have not identified transparency issues with Hay at this employment. I have identified a lack of awareness on the complainant’s side on just how to access Hay Evaluation. It seems an agreed job description is the permission document to access Hay Evaluation. I note that the complainant was advised that the job description /grade for the Construction position was available through Human resources during the 2019 competition. No request was made by the complainant for this document. I am satisfied that the Complainant received full feedback on her own job evaluation process during 2021 and am surprised that this feedback was not considered by her. I note that she exercised a repeat job evaluation in the third quarter of 2021 and received further coaching to assist in the repeat job evaluation in first quarter 2022. Did Like Work or Work of Equal Value occur in this case.? Knowledge of comparators role: 1 Ms Cotter has submitted that both jobs are identical. No direct reports, cross cover, interchangeability, same templated works contracts, same job descriptions and competencies. “I can do both “. Mr Quill prepared a comparative analysis of both jobs over 2020 -2022 in support of a most emphatic argument which denied uniformity and equal value. · Ms Cotter was placed 108% of salary scale, grade 12. Mr Collins at grade 13 102% · Both were highly qualified. However, Mr Collins carried the much-coveted qualification of Q/ S in construction. His grading reflected his expansive professional membership. · 2020 Mr Collins concluded high value contracts in mechanical services tender, new aerogel rates, tendered the corrosion under insulation project, managed transition to tank maintenance, contract extensions in electrical painting and industrial cleaning which all drew on his Q/S skills, key liaison for capital projects team, construction, manage monthly progress applications for all construction contractors, spend 13-14 million · 2020 Ms Cotter implemented the total waste management contract 1million. Sourced and onboarded of cleaning contractor, covid supports as essential site. Purchase orders, Oracle testing Procurement training and invoice processing. · 2021 Mr Collins Elaboration of Construction function construction purchase orders · 2021 Ms Cotter Supplier Management Waste, Catering Cleaning Contracts, Tendered and award site cleaning contracts. High Level representative on Covid supply management. · 2022 Mr Collins supplier manager meetings with construction outlets and maintenance. Mr Collins disputed he undertook Cork beg project. Liaison with all construction contractors and issued purchase orders for construction. 6m spend · 2022 Ms Cotter Purchase orders for lab from 2020, Procurement training, training Inventory buyer and warehouse manager in SM systems and processes. Manage delivery plan .2m spend Job titles differed. Same reporting line to Mr Quill, no direct reports Different entrance routes to jobs. Ms Cotter, long lead in with name and category changes from 2007. Mr Collins had a single route entrance through competition. Qualifications were different Ms Cotter Law Degree Negotiation, contract and commercial Management Certificate in Agriculture Lean black belt Certificate in Pharma Science Business improvement training Diploma in chemical Technology Mr Collins Master’s in law Member of chartered surveyors, irl and uk B Sc Quantity Surveying Member of chartered institute of Arbitrators B Sc Construction Economics There was a difference in grades from December 2019 to March 2021. The grades co-existed at 13 from March 2021, but pay pause applied, therefore uplift was notional. The Complainant has brought a strong industrial relations background to this case where she was overlooked in seeking a garde elevation much earlier. I also note that she carries an enduring disappointment that she was unable to reach the zenith of SLG at 115 %, but no appeal of this ensued. I found that she did not submit the mandatory job description trigger for evaluation until 2019. It was supported by her manager and human resources and successfully uplifted in 2020. It is in the competency framework that the parties are most apart on. The complainant says the pots are identical in every way. The Respondent differs and submits that the company required more complexity, more commercial risk management and more q/s skills to credibly manage the construction contract’s function, where variations if occurred prove very costly. The Complainant disagrees and submits that she walked in the shoes of Mr Collins and indeed Mr Quill on a number of occasions. She did not receive a proportionate payment for that extension of role, and I have wondered why she took this on for free.? I have considered all the evidence before me, much of it contested. I find that by her own admission Ms Cotter marked the contract specialist role as different to hers in conversation through grievance in 2021. I find that Mr Collins participated in larger scale projects to Ms Cotter. I accept that they sat in same office and worked the same hours. However, I found a perpetual difference in the work undertaken by the Complainant year on year of the reference period I am influenced in this thinking by Mr Quills reference to the nature of “care and maintenance cover “unfortunately, this was not delineated, but I accept that Ms Cotter kept watch over the Construction position in Mr Collins absence without full participation. She told me that locum was secured when she went on maternity leave, therefore, I must form the view that she simply could not have absorbed both her role and the comparators roles simultaneously. There were some similarities in the job, such as base, hours of work, some cross cover and reaching out to vendors and suppliers. I am grateful to Mr Collins on this expansion. However, I must find that Mr Collins was engaged in “more strategic and innovative work at a senior level than Ms Cotter “. This is what the Respondent required of the comparators position. In respect of Ms Cotters submissions, I say that it is very difficult to be a judge in your own cause in everyday work. The Complainant has not demonstrated that she carried out the work aligned to SGL 13 Construction Services. She did not demonstrate familiarity with QS methodology, an area much coveted by the Respondent. In GL Entertainment Distribution and Ewelina Konarska EDA 228,2022, the Labour Court considered a claim for equal pay for a female general manager caught up in a changing male managerial structures and inconsistent pay systems for which she sought to rectify, but “she kept getting put off “ The owner came to hearing and “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 “ In considering the Courts findings that like work ahd not occurred, the Court found that in the comparators contract of employment the “Primary skill required was industry expertise, a knowledge of the UK market and an ability to use this knowledge to drive sales “ The Court accepted that such skills attract a premium, that is market forces at work. In the instant case, I find that the complainant has not made much of the co-existence of uplifts for her colleague both Mr B, Contract Specialist Materials on grade and pay consistent with her upward alignment in March 2021. They were both internal candidates. The Contract services construction post was secured from the market, with the complainant’s endorsement. I did not see a job evaluation which marked this post at 13 but accept that the post was evaluated at 13 on skill and market forces where the Q/ S was deemed a central component. I conclude the complainant gave insufficient weighting to the commercial reality of pay pause and did not seek a rebalancing exercise in retrospection once that pay pause lifted which may have prompted an equilibrium much earlier. Ms Cotter did share with Ms Brewer that she was keen to explore a reconciliation exercise in the third quarter of 2021. Both Parties engaged on this up to May 2022 pay increase. I am encouraged by the complainants continued positive progression at the plant. I will never know just why the eventual balancing exercise of May 2022 did not rectify the complainant’s stated objective of “rectification going forward “from March grievance. I understand she really wanted a Salary Grade level 14, higher than Mr Collins which takes the focus from the equal pay angle and returns to IR. Ms Cotter did not ask for a grade 14 as part of her job evaluation of February 2020. It was a hope and aspiration not fed into Hay, which is gender blind. In following Teagasc , I am satisfied that the Respondent relied on the historical grade of SGL 13 to ground the Contract Specialist Construction role and was entitled to pay a different rate of pay for a time compared to that paid to Ms Cotter in her role as Contract Specialist Professional Services and Procurement Excellence as they were not engaged in “ like work “ or work of equal value “ and this decision was not tainted by discrimination on grounds of gender . I find that the complainant has not established a prima facie case of Discrimination as required by S85A of the Act. The Complainant has not established that she performed like work or work of equal value in respect of her named comparator, Mr Brendan Collins. The claim for Discrimination is not well founded. |
Decision:
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. I find that the complainant has not established a prima facie case of Discrimination as required by S85A of the Act. The Complainant has not established that she performed like work or work of equal value in respect of her named comparator, Mr Brendan Collins. The claim for Discrimination is not well founded. |
Dated: 20th of February 2026
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for equal pay |