EDA174

An unusual sequence of events culminated in the listing of this appeal for hearing before the Labour Court. Ms Katherine Gamble (“the Complainant”) referred a complaint of discrimination on the age ground contrary to the Employment Equality Act (“the Act”) to the Workplace Relations Commission. Her complaint (arising from her compulsory retirement on 19 June 2015) was heard by an Adjudication Officer on 24 May 2016. Her former employer – Cuala Developments Limited (“the Respondent”) – was not represented at the hearing. It appears that the notification of the first instance hearing which issued from the Workplace Relations Commission did not come to the Respondent’s attention. The Adjudication Officer issues his decision (ADJ-00001038) on 23 August 2016. He upheld the complaint and awarded the Complainant €2,500.00 in compensation for the effects of discrimination.

The Respondent appealed that decision to this Court. The notice of appeal was received by the Court on 16 September 2016. Prior to the appeal coming on for hearing, the Complainant notified the Court in writing that she did not intend to contest the appeal. The appeal was listed for hearing on 10 February 2017. Representatives of the Respondent attended but the Complainant did not attend.

Discussion and Determination

De Novo Hearing

This Court considers all matters coming before it on appeal on ade novobasis. In other words, this Court is not a forum the purpose of which is to merely review the findings and decisions of an inferior tribunal: this Court considers all matters of fact and law encompassed in any particular appeal afresh. Clarke J of the Supreme Court explained with commendable clarity the principal characteristics of a de novo appeal in his judgment inFitzgibbon v Law Society[2014] IESC 48:

• “4.1 Whatever may be the merits of the continuing use of Latin phrases, I am not sure that there is an exact translation of the term "de novo" which conveys the precise type of appeal with which I am now concerned. That term has a sufficient usage so as to make it convenient to continue to rely on it. While the phrase "full re-hearing" may convey the extent of such appeals the term "re-hearing" can have different meanings.

  4.2 It seems to me that the critical characteristics of a de novo appeal are two fold. First, the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own conclusions on the evidence and materials properly available to it. The evidence and materials which were properly before the first instance body are not automatically properly before the appeal body. It seems to me that, by defining an appeal as a de novo appeal, any legally effective instrument necessarily carries with it those two requirements.

  4.3 However, the matter does not end there. It is sometimes argued that, by providing for a de novo appeal, what happened at first instance becomes entirely irrelevant and, indeed, inadmissible. That is not necessarily the case. First, it is important to recognise that the process at first instance may narrow the issues which truly remain alive in whatever adjudicative proceedings are under consideration. To take a simple example from the appellate structure of the courts, there is available what is in substance a de novo appeal to the High Court from almost all civil decisions of the Circuit Court. The High Court judge considers the case afresh on the basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit judge. However, what happened in the Circuit Court is not, in those circumstances, necessarily entirely irrelevant. The pleadings which were exchanged pre-trial in the Circuit Court may well have narrowed the issues between the parties so that, at least in the absence of leave to amend, the issues remain thus narrowed on any appeal. An appeal may not, by its terms, extend to the entirety of the decision made at first instance so that, in the example of an appeal from the Circuit Court to the High Court, the appeal may be brought only against the quantum of an award of damages made by a Circuit judge and not against that judge's finding on liability.

  4.4 Second, and apart from such matters of form and process, evidence given in the first instance proceedings will not, necessarily, be entirely irrelevant to the process on appeal. It seems to me that the default position, in the absence of any specific rule to the contrary, must be that, in the case of a de novo appeal, it remains for the parties to again present to the appellate body whatever evidence or materials may be considered necessary for their case. Likewise, if, and to the extent that, the process may be inquisitorial, then, again in the absence of rules to the contrary, the inquisitorial process must start afresh before the appellate body.

  4.5 However, there are obvious exceptions to that position even in the absence of specific rules. First, it is always open to a party to question the credibility of an account being given or a position being taken on an appeal by reference to evidence given or a position taken at first instance. Just as a previous inconsistent account can always be put to a witness in court proceedings, so also can a previous inconsistent account given at first instance be put to a witness at a de novo appeal hearing for the purposes of testing the credibility of any new account given. It will, of course, be a matter for the appellate body to form its own judgment on the credibility of the new account in the light of the extent to which any difference may be established between the account given to that appellate body and the account given to the first instance body and also having regard to any explanation given for any change of position.

  4.6 Likewise, it is always possible to place before any adjudicative body evidence of previous admissions made by any party against whom an adverse finding on appeal might be made. In the law of evidence as applied in the courts, previous admissions amount to a well recognised exception to the hearsay rule. It seems to me that the default position, in the absence to any rule to the contrary, must be that an admission, made by a party at a first instance hearing or otherwise made during the first instance process, can be the subject of evidence at a de novo appeal. It is not that the party concerned is, necessarily, bound by an admission previously made. It is, on a de novo appeal, a matter for the appellate body to make its own mind up based on the evidence and materials before it. However, just as an admission made by a party against its own interest outside the context of hearings altogether can be the subject of evidence, so also can a similar admission made at first instance be the subject of evidence. The weight to be attached to that evidence in the overall assessment of the issues before the appeal body will, of course, be a matter for it.

  4.7 In summary, therefore, it seems to me that the use of the term "de novo appeal" or similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body against whom the appeal lies.

  4.8 In addition, and in the absence of any specific rules to the contrary, the default position will be that it will be necessary that all materials on which the appellate body is to reach its adjudication are properly re-presented to that body in whatever form may be appropriate to the type of proceedings concerned. Where the proceedings involve oral evidence, then witnesses will have to be called again. Where the proceedings involve enquiries by the decision maker then those enquiries will have to be made afresh.

  4.9 However, even in the absence of specific rules, that latter proposition is subject to some qualification. The process at first instance may have reduced the scope of issues which are properly before the appeal body. Likewise, that scope may be influenced by the terms of any appeal brought. Furthermore, there may be circumstances, such as those which I have identified, where statements made, evidence given or positions adopted at the first instance hearing may, in themselves, be properly admissible as part of the appellate process.”

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
15th February, 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.