PWD2623

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00056027 (CA-00068229-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. 

The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

 The following is the Court's Decision:

DECISION:

1. Appeal Details

This is an appeal by Unity Healthcare Service Limited against a Decision of an Adjudication Officer (ADJ-00056027/CA-00068229-001) made under the Payment of Wages Act, 1991 in a complaint by Ms Brenda Mubaiwa. The Adjudication Officer’s decision, dated 13 February 2026, found the complaint to be well founded and directed payment of €30,420 to Ms Mubaiwa, subject to taxation and statutory deductions.

For ease, the parties are referred to in the same way as at first instance. Ms Mubaiwa is therefore referred to as “the Complainant” and Unity Healthcare Service Limited as “the Respondent”.

The Respondent lodged a Notice of Appeal to the Labour Court on 27 March 2026, which was 43 days after the Adjudication Officer’s decision issued and, therefore, outside of the 42-day period for bringing an appeal provided for in section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’). The 42-day period in this case expired on 26 March 2026.

A hearing of the Court was held on 28 August 2026 in Dublin. The Complainant was represented at the hearing by Mr Paul D Maier BL instructed by DJM Legal and the Migrant Rights Centre of Ireland (MRCI). The Respondent was represented by its Director of Operations, Mr Velani Bruce Magama.

Written submissions were received in advance from both parties although the Respondent’s submission did not address the preliminary issue of time limits, despite the Labour Court having communicated with the Respondent on 26 May 2026, requesting that it do so.

2. Submission of the Respondent

On the appeal form, submitted on 26 March 2026, the Respondent appeared to indicate that it intended to apply for an extension of time allowed by section 44(4) of the 2015 Act based on the existence of exceptional circumstances. No application was made by the Respondent to extend time but, in order to establish jurisdiction, the Court enquired as to why the appeal form was submitted outside the statutory time limit to determine if such exceptional circumstances existed. The threshold of exceptional circumstances was explained to the Respondent.

Mr Magama informed the Court that he had only been informed, on 24 March 2026, by the solicitors he understood were dealing with the appeal, that they would not be submitting the appeal on behalf of the Respondent. While the particular solicitor’s firm had not appeared at the Workplace Relations Commission (WRC), it had assisted the Respondent in respect of the Complainant’s claim at first instance. Mr Magama said that he was then left with limited time to submit the appeal with no one to help him, leaving him to do it by himself. He said that he had initially submitted the appeal on 26 March 2026 and it had bounced back as the attachment was too large, and that he had to submit the appeal form page by page which he did on the afternoon of the following day. Mr Magama confirmed that he was aware of the deadline date for submission of the appeal.

3. Summary Position of the Complainant

The Complainant’s position was that the Respondent had not demonstrated any exceptional circumstances which would warrant extending time for the initiation of an appeal. In reliance on McLoughlin v Murray [2022] IEHC 537, it was submitted that “exceptional circumstances” was a high bar and difficulties with legal representation or technical difficulties with email attachments did not meet that threshold. It was submitted that because such issues were commonplace it was incumbent on the Respondent to act in good time and the Complainant’s view was that the issues described did not explain the delay or excuse it. The Complainant submitted that if the threshold was not met the Court does not have jurisdiction to hear the appeal and the appeal must therefore fail.

The Complainant requested the Court to deal with the matter as a preliminary issue on the basis that if the Respondent did not satisfy the threshold for exceptional circumstances the Court’s ruling on the preliminary issue would be determinative of the entire appeal.

4. Relevant Law

Sections 44 (2), (3) and (4) of the 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.

Rule 23 of the Labour Court Rules 2024, in regulating for the above, provides that: “The appeal shall be initiated by notice in writing, including by email or via the Labour Court portal delivered to the Court within 42 days of the date of the decision being appealed. In accordance with the provisions of the Interpretation Act 2005 the date of the decision is day 1 of the 42-day period.” Rule 23 goes on to provide that: “Appeals submitted via email or via the Labour Court portal can be made up to midnight on the 42nd day”.

Rule 24 of the Labour Court Rules 2024 provides, in respect of Part II appeals (which covers appeals under the Payment of Wages Act, 1991) that: -

“If the appeal is not made within the requisite 42 days, then application should be made to the Court in accordance with Section 44(4) of the 2015 Act, to extend time for bringing an appeal and giving the grounds upon which the extension is sought. The grounds for any such extension should form part of the written submission of the Appellant. Such an extension of time will only be granted in exceptional circumstances.”

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 for the appeal in the first instance. It advised the parties that 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, a decision would issue to that effect.

5. Deliberations

The 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 expiry of the period, which in this case was 26 March 2026. 

The meaning of the expression "exceptional circumstances" has been considered extensively by this Court and other fora. In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nÓg [2004] ELR 110, the Labour Court held as follows:

“The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act.  That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another.”

The Court went on to state:

“The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.”

In Byrne v PJ Quigley Limited [1995] ELR 205 the Employment Appeals Tribunal held that exceptional circumstances were “strong words” and meant “out of the ordinary, unusual, probably quite unusual but not necessarily highly unusual”. The Tribunal further stated that to extend time it must be satisfied that the exceptional circumstances “prevented” lodging the claim within the statutory time limit, and not merely that the exceptional circumstance caused or triggered the claim.

In McLoughlin v Murray Senior [2022] IEHC 537 Heslin J considered the term “exceptional circumstances” and noted that:

“70. The view expressed in the EAT's decision in Byrne v. PJ Quigley Ltd is that exceptional circumstances in the present context must be circumstances which are, at the very least, “quite unusual”. In my view, what is required goes somewhat further and I take this view for the following reasons.

71. The Oireachtas chose not to use, for example, the words good reason in s.44 (4). The bar was set higher. Nor did the Oireachtas employ the term special circumstances in that section. In my view, the bar was set higher still, by the use of the term exceptional.

…

74. …whereas the EAT used the term “quite unusual” in Byrne v PJ Quigley Ltd, I believe s. 44 (4) requires even more of the circumstances. In other words, exceptional seems to connote something even greater as regards the circumstances being well out of the ordinary – in short, not merely quite unusual, but highly unusual.”

The burden of proof in establishing the existence of “exceptional circumstances” rests with the Respondent. 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 Respondent would have lodged the appeal in time.

The Respondent relied on its legal representation only informing it on 24 March 2026, two days before expiry of the statutory period, that it would not continue to represent the Respondent as grounds justifying the delay as it left the Respondent very short on time to submit the appeal. The Respondent indicated that it found it difficult to submit the appeal in the absence of support from its legal representatives within the short time left to do so. It was further submitted that efforts had been made to submit the appeal form on time but that the email bounced back as the attachment was too large. No documentary evidence of this bounce back was made available to the Court and an examination of the Court file did not disclose that an unsuccessful effort had been made by the Respondent to submit the appeal form on 26 March 2026 or that the appeal form was ultimately submitted by way of a series of emails with single page attachments.

The Court does not expect parties to be legally represented and the process of initiating an appeal is such that a lack of legal representation is not a barrier to access to the Court. The Court recognises that an unrepresented party may be unfamiliar with the processes involved but the information provided to parties when they receive decisions from the Workplace Relations Commission makes clear to them, in a manner that requires no legal training, that there is a limit of 42 days within which to appeal. The Respondent’s representative was clear that he knew the deadline date for submitting the appeal. The Respondent, while appearing to complete the appeal form within the 42-day period, did not send it at that time but was sufficiently capable to navigate the form such that it was identified that an application to extend time for the bringing of its appeal needed to be made. The Labour Court appeal form is not a complicated form and is structured in a way to facilitate all appellants lodge an appeal, without the need for legal advice. Further, the Respondent’s account of email bounce back and having to submit the appeal form on a page-by-page basis, unsupported by any documentary evidence, does not in any event explain why the appeal was not submitted until the day after expiry of the 42-day period rather than up to midnight on the day of the purported bounce back which was within the time period allowed.

In this case, a Notice of Appeal was lodged to the Labour Court on 27 March 2026, one day outside the 42-day time limit to appeal the Adjudication Officer’s decision. For the Court to extend time, the Respondent must establish the existence of exceptional circumstances that explain the delay and provide a justifiable excuse for the delay. The Respondent failed to do this.

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.  Insofar as excuses or reasons have been proffered, they do not, on any definition, amount to exceptional circumstances. 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.  Based on the facts of the case as presented, the Court cannot establish any facts to support the assertion that “exceptional circumstances” arose to prevent the lodging of an appeal within the statutory timeframe.

A failure on the part of the Respondent to initiate 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 appeal.

6. Decision

The Court decides that the existence of “exceptional circumstances” has not been established by the Respondent 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 appeal.

The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
AL	______________________
22/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be in writing and addressed to Ms Amy Leonard, Court Secretary.