- Posted by Bernadette
- On March 5, 2018
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’,
Part 1 covers the facts of the case while this part 2 addresses the learning points for appeal processes. 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.
|Fact||WRC Decision||Labour Court Decision|
|Date of Victimisation Complaint to WRC||21 February 2013||21 February 2013|
|Date of Notice of Employer||22 February 2013||22 February 2013|
|Form of Notice to Employer||Solicitor’s letter||Notification of the complaint of 21 February 2013 to the Tribunal|
|Date of Dismissal||22 February 2013||22 February 2013|
In the first place, neither decision considers the key issue that arises in a victimisation complaint, which is, 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 Equality Tribunal 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 from this if this means that the Labour Court believed that a notification from the Tribunal 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 Tribunal 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:
- 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.
- It is very unlikely that the Equality Tribunal 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.
- No other complaint, for example a complaint of discriminatory treatment (perhaps a notification of unlawful treatment in repect of not permitting the complainant to retur to her original job) that could have been lodged on 21 February 2013, has been found
- 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.
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. 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.
 See the Barrett Decision, EDA1017
 See EDA 1617