DEC-E2015-119 and EDA182, Wozniczka v Couverture Ltd., Part 1

Issues: Victimisation; Section 74 (2), WRC Decision Overturned; Protected Act

This case relates to the Complainant, Katarzyna Wozniczka and her employer, the Respondent, Couverture Limited, who made her redundant following her referral of a discrimination claim to the Equality Tribunal.

The Complainant was employed as a supervisor prior to leaving on maternity leave. Upon her return to the workplace she was placed in a different role, as the previous role of supervisor, the respondent alleged, had been made redundant. To facilitate the new position, the Respondent had organised and paid for the Complainant to attend an English Course. The new role incorporated administration and some promotional work for the company, which included attendance at trade fairs.

The respondent decided to attend a fair in the RDS and the Complainant was asked to work one evening of the fair. The Complainant advised she would not be able to work late and requested her old job back.  After voicing grievances regarding the new role, the Complainant proceeded to seek legal advice and adjourned/postponed scheduled meetings with her employer.  The employer received a letter from the complainant’s solicitor on the following day, 22 February 2013. The contents of that communication are not included.  The employer issued the Complainant with a notice of redundancy later that day.

In the case, before the Equality Tribunal the respondent asserted the only reason behind the decision to make the Complainant redundant was her unwillingness to remain in her new position and as there were no other available positions in the company it decided to make her redundant from her original post. The Adjudication Officer largely based her decision on the statement of the Respondent company who remained adamant that the letter received from the Complainant’s solicitor had no bearing on its decision to make the Complainant redundant. It was decided by the Adjudicator/Equality Officer that the Complainant had failed to establish a prima facie case of victimisation, that the termination of her employment was a valid redundancy; rather, it was the fact her job was no longer available.

The Complainant subsequently appealed the WRC decision to the Labour Court. The Court stated that where discrimination can be inferred from the facts as demonstrated by the complainant, the onus is on the Respondent to prove otherwise, in line with section 85A of the Act. The Labour Court held that as the two events, the Complainant’s redundancy and the Complainant’s notification of a complaint to the WRC, occurred almost concurrently, an inference of victimisation had been raised. As a result, the burden of proof shifted to the Respondent to prove this was not the case.

However, there is a crucial line in the statement provided by the Managing Director of the Respondent Company, which was either omitted by the Respondent or not requested in the hearing before the WRC. The Respondent stated that receiving the complaint from the Complainant had, to a degree, attributed to the decision to make the Complainant redundant later that day. With due regard to this comment, the Court held the Complainant was entitled to succeed in her appeal.

The Court stressed the importance of employees being guarded from potential repercussions in retaliation to complaints made under the Act. Victimisation of this sort is a matter that will not be tolerated and is of great concern to the Court. For an employer to react in this way would constitute stripping employees of their rights under the Acts.

Why is this Case of Interest?

• The stark differences of the decisions of the Adjudication Officer and that of the Labour Court.
• It is noted that there appears to have been no reference to the complainant’s redundancy until the day it occurred, after the notification of complaint had been received.
• Affirmation of employees’ right to make a complaint under the Act.  A prudent employer might withhold any serious action in circumstances where an employee raises difficulties until the position is clear.

Appeal Processes & Handling Facts

DEC-E2015-119 and EDA182, Wozniczka v Couverture Ltd. – Part 2

Issues: Victimisation; Section 74 (2), WRC Decision Overturned; Protected Act; Appeal Process; Validating ‘Facts’

It is useful for all investigators, particularly those who undertake appeal processes, to consider these two decisions relating to the same complaint at first and second instance.  As you can see from the table below there is some apparent discrepancies in the facts upon which the decisions are based:

Neither decision considers the key issue that arises in a victimisation complaint, namely - what was the protected act and does it qualify as such?  Of course, this is not to say that the authors did not consider it – just that such a consideration is not included in the decisions.  The solicitor’s letter which apparently grounded the victimisation claim before the WRC is not considered by the Adjudication Officer because it was decided that the decision to make the complainant redundant was based on grounds other than the notice to the employer.

The victimisation complaint being lodged with the WRC appears to be what was used by the Labour Court for the grounding of the complaint.  The decision states “However on 21 February the Complainant filed a complaint with the Equality Tribunal under the Act.  The respondent was notified of that complaint on 22 February 2013.”  It is unclear if this means that the Labour Court believed that a notification from the WRC was received by the employer or if the respondent received a letter from the solicitor informing them of a complaint or the intention to make a complaint.

In reality, it would not make any material difference which it was, given that once the solicitor’s letter contained the necessary references described in section 74 of the Acts it would qualify as a protected act just as a formal complaint to the WRC would.

However, what is particularly important, is that the date of complaint for the instant complaint listed in both decisions predates the victimisation.  It cannot be the case that the date of the lodgement of the complaint of victimisation being considered in these decisions can be 21 February 2013 because the dismissal (the alleged victimisation) did not take place until 22 February 2013.

A number of points may arise from all of this:

1. The date of the lodgement of the complaint of victimisation is incorrect as it occurred after the date of the recorded lodgement of the complaint;
2. It is very unlikely that the WRC had the resources or capacity to receive a complaint, get it processed, entered into the system and have letters issued in the same day to ensure the notification was received by the respondent on 22 February 2013.  It is likely that what was received by the respondent was a letter from the Solicitor;
3. No other complaint has been found, for example, a complaint of discriminatory treatment (perhaps a notification of unlawful treatment in repect of not permitting the complainant to return to her original job) could have been lodged on 21 February 2013;
4. As no other complaint has been found and the date of the complaint recorded is incorrect, then the consideration of victimisation based on the lodgement of a complaint to the Tribunal as the protected act appears unfounded.

Learning Point

As mentioned above, it is entirely possible that the WRC and Labour Court had other information available to them that is not included in the decisions.  However, for the purposes of this consideration, the primary learning point is that those dealing with appeals should not rely on the information included in the initial investigation report without verification.

The Labour Court is apparently supposed to consider the item appealed on a de novo basis[2].  However, often the terms of reference for an appeal of a workplace investigation require the consideration of the facts being fed from the initial investigation as well as consideration of the process.  It would be unacceptable for such a fact not to be checked in circumstances where that fact is subsequently used as the basis for a decision.