- Posted by Bernadette
- On March 5, 2018
Employment Equality Decisions Reviewed
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. Part 1 looks at the circumstances of the case while part 2 looks at what might be learned from this in respect of conducting an appeal.
The Complainant was employed as a supervisor prior to leaving on maternity leave. Upon her return to the workplace she was placed in a new, 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 was 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 facia 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 Equality Tribunal, 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 Equality Tribunal. 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 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.