TED2610

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045345 (CA-00056089-013)

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision to the Labour Court on the 13 April 2025.  A Labour Court Hearing took place on the 21 April 2026.

The following is the Labour Court's Decision.

DECISION:

1. Background

This is an appeal by Erico Luiz De Souza against a Decision of an Adjudication Officer made under the Terms of Employment (Information) Acts, 1994 to 2014 (“the Acts”) in a complaint against Seanita Ltd. The Adjudication Officer’s decision is dated 11 December 2023.

For ease, the parties are referred to in the same way as at first instance. Hence, Erico Luiz De Souza is referred to as “the Appellant” and Seanita Ltd as “the Respondent”.

The Appellant lodged a Notice of Appeal to the Labour Court on 13 April 2025, which was some 16 months after the Adjudication Officer’s decision issued and, therefore, outside of the 42-day period for bringing an appeal provided for in section 44(4) of the Workplace Relations Act 2015 (‘the 2015 Act’).

On the appeal form, the Appellant indicated his intension to apply for an extension of time for late lodgement of the appeal due to “exceptional circumstances”. By letter dated 6 May 2025, the Labour Court secretariat wrote to the Appellant and requested that he provide a written submission to the Court addressing his complaint under the Act and that he includes the grounds for an extension of the statutory timeline in the submission.

A hearing of the Court was held on 21 April 2026 in Cork. The Appellant was assisted with a Brazilian Portuguese language interpreter at the hearing. The Court heard submissions from both parties, and the Appellant gave evidence under oath.

At the outset of the hearing, the Appellant’s representative made an application to admit an audio recording of a meeting held on an unspecified date in April 2023 in support of the application to extend time. Having heard from both parties, the Court declined the application on the grounds that (i) it was opposed by the Respondent who were not on notice of the application and were not provided with a copy of the recording in advance of the hearing as required by the Labour Court rules, (ii) no transcript of the recording was provided, (iii) the person who made the recording was not present to verify the source of the recording, and (iv) there was no way of listening to the audio at the hearing.

Rule 54 of the Labour Court Rules 2024 provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

The Court decided with the agreement of the parties that it would hear and decide the preliminary matter in relation to time limits in the first instance. It advised the parties if it decided that exceptional circumstances arose to prevent the lodging of an appeal within time, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that the appeal was lodged outside the time limits set down in the Act, the appeal would be out of time and statute barred.

1. Submission of the Appellant

The Appellant submits that exceptional circumstances arose which gave rise to a delay in lodging his appeal to the Labour Court. 

The Appellant’s evidence was that he was prevented from lodging his appeal in time, as (i) he felt threatened and feared retaliation by the Respondent if he progressed the appeal, (ii) the representative who acted on his behalf at the WRC hearing had ‘disappeared’ and (iii) he was in an irregular situation and needed to move on with this life and make money to progress his application for Italian citizenship.

3. Summary Position of the Respondent

The Respondent submits that no submission has been made by the Appellant to support the contention that exceptional circumstance existed to prevent the lodgement of an appeal to the Labour Court within the 42-day time limit.

4. Relevant Law

Sections 44 (2) (3) and (4) of the Workplace Relations Act 2015 Act provide as follows:

(2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates.

(3) Subject to subsection (4), a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned.

(4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

5. Deliberations

The first matter for consideration by the Court is whether “exceptional circumstances” arose during the 42-day period for giving a notice of appeal to the Court such that they prevented the lodging of the appeal on or before the due date, which in this case was 21 January 2024.

To grant an extension of time, there must be a causal link between the circumstances cited and the delay in lodging the appeal to the Court. The Court must be satisfied, as a matter of probability, that had those circumstances not been present the Appellant would have lodged the appeal in time.

The burden of proof in establishing the existence of “exceptional circumstances” rests with the Appellant.

In this case, the Appellant contends that “exceptional circumstances” arose (i) he felt threatened and feared retaliation by the Respondent, if he progressed an appeal, (ii) the representative, who acted on his behalf at the WRC hearing, had ‘disappeared’, and (iii) he was in an irregular situation and needed to move on with this life and make money to progress his application for Italian citizenship.

The Appellant gave evidence that he was fearful of retaliation by the Respondent should he progress his appeal to the Court. His evidence was that after lodging his initial complaint to the WRC, he heard from a former colleague in April 2023 that the Respondent had said that he would ‘get him’.  The Appellant said that as a result he was fearful for his life. The Court had some difficulties with the Appellant’s evidence in that regard. Firstly, his evidence was hearsay and so of limited probative value to the Court. Furthermore, when asked in cross examination why, if he was so fearful of the Respondent, he proceeded with his complaint to the WRC, the Appellant said that at some times he was fearful, while at other times he felt that he had to fight for his legal rights. When asked if he reported his fears to An Garda Síochána, the Appellant said that he did so in April 2026, after receiving notification of a Labour Court hearing date. The Court notes that the report to An Garda Síochána was made some two years and four months after the Adjudication Officer decision issued.  No adequate explanation was provided by the Appellant to explain why he did not make contact with An Garda Síochána at an earlier date. Having regard to the testimony proffered, the Court finds that the Appellant failed to adduce any facts or evidence of behaviour on the part of the Respondent that could have prevented the Appellant lodging his appeal to the Labour Court within the 42-day statutory timeframe for lodging an appeal.

The Appellant further submits that the failure of his WRC representative to contact him contributed to the delay in lodging an appeal to the Court. His evidence was that his representative, who attended the first day of hearing at the WRC, failed to inform about the second scheduled hearing date. As a result, the Appellant did not attend the second day of hearing. When the Adjudication Officer issued her decision (dated 11 December 2023), the WRC sent the decision directly to his representative. The Appellant said that he never received a copy of the decision from his representative and only learned about the decision when he contacted the WRC sometime later in December 2023 seeking a status update on his complaints.

While the Appellant contends that the disappearance of his representative contributed to his delay in lodging his appeal to the Labour Court, he failed to adequately explain how the lack of contact with his representative constituted exceptional circumstances or prevented him from lodging an appeal. The Notice of Appeal is a simple and straightforward form, that can be completed on-line. In the Court’s view, the Appellant had adequate time to lodge an appeal, given his own evidence that he secured a copy of the Adjudication Officer’s decision some time in December 2023.

Finally, the Appellant contends that he had to move on with his life and was more focussed on earning money and progressing his application for citizenship at the relevant time. While that may well have been so, the fact that the Appellant prioritised other matters in his life at that time does not constitute exceptional circumstances.

In this case, a Notice of Appeal was lodged to the Labour Court on 13 April 2025, some 16 months after the Adjudication Officer issued her decision in relation to the initial complaint under Act. For the Court to extend time, the Appellant must establish the existence of exceptional circumstances that explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant go some way to explaining the delay, the Court finds that they do not constitute exceptional circumstances such that he was prevented from lodging his appeal in time.

In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains the delay in lodging an appeal to the Labour Court outside the statutory time limit.  In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case.  The Appellant does not meet the established threshold whereby the statutory timeframe within which he is permitted to appeal the Adjudication Officer’s decision can be enlarged due to “exceptional circumstances”.

A failure on the part of an Appellant to lodge an appeal on time deprives this Court of jurisdiction to hear the claim. As a result, the Court finds that it has no jurisdiction to hear the complaint.

6. Finding

The Court finds that the existence of “exceptional circumstances” has not been established by the Applicant to allow the extension of the statutory timeframe for giving a notice of appeal to the Court. 

It follows that the Court has no jurisdiction to hear the substantive appeal.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AM	______________________
28/04/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.