UDD2037

1. Appeal of Adjudication Officer Decision No(S). ADJ-00016062 CA-00020861-002.

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 20 February 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 5 November 2020. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by Deirdre Morgan (the Complainant) against an Adjudication Officer’s Decision ADJ-00016063 given under the Unfair Dismissal Act 1977 (the Act) in a claim that she was unfairly dismissed by Sandra Cooney’s Home Care Ltd ( the Respondent) The Adjudication Officer upheld the complaint but considered that the Complainant had made a substantial contribution to her dismissal and awarded €1,500.

Preliminary issue

This matter comes before the Court by way of a preliminary application by the Complainant relating to the time limit set out in the Workplace Relations Act, 2015 (the Act) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. The Act at Section 44(2), (3) and (4) provides 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.

The Complainant seeks to have the Court direct, in accordance with Section 44(4) of the Act that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.

Position of the parties

The Complainant contends that exceptional circumstances can be demonstrated in the within appeal and that the Court consequently has the discretion to allow the within appeal to progress.

The Complainant set out the relevant circumstances applying as follows:

The Complainant took a number of cases against the Respondent in this case and in the cases of two of those complaints she had submitted the appeals on time as she felt at the time that was her best route to success. The Complainant then decided on the 20^th February 2019 to submit her Unfair Dismissals appeal. It is her submission that the Labour Court rules had changed in January 2019 and this had impacted on her getting her appeal in on time. However, the Complainant was unable to identify any change to any particular rule that had prevented her from lodging her appeal in time.

It was her submission that the fact of any change to the Court rules was by its nature an exceptional circumstance, as she had a genuine expectation that they would not change. The Complainant referenced a number of cases including the case of Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) and submitted that the circumstances in this case met the test set out therein.

The Respondent submitted that no exceptional circumstances existed. The Complainant had submitted two out of three appeals on time. The Complainant had decided for her own reasons initially not to appeal the Unfair Dismissals Decision. The Complainant sought to rely on a change to the Labour Court rules but was unable to identify what particular change to what rule had impacted on her. The requirements to submit an appeal within 42 days is a statutory requirement and no change was made to the statutory provisions during the relevant time period. The Respondent submitted that the Complainant did not meet the test of exceptional circumstances and therefore the Court could not apply its discretion.

Discussion and conclusions

It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court.

The Court addressed the issue of exceptional circumstances in its decision, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) as follows

• 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.
  • The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.

The Court accepts that the facts of any case are unique to itself and that the application of the law to the within case must be in the context of the circumstances arising in this case

In all of the circumstances set out above and based on the submissions made the Court finds that the Respondent has not established that exceptional circumstances arose in this case such as to be regarded as being of such a nature as to prevent the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer.

Determination

The Court determines that the within appeal was made outside of the time limit set down in the Act at Section 44(3) and consequently the Court does not have jurisdiction to hear the appeal.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
2 December 2020	Deputy Chairman