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FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DONNYBROOK SERVICE STATION LIMITED
(REPRESENTED BY C F O'CONNELL AND COMPANY SOLICITORS) - AND - MR MORGAN MURRAY DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer Decision No. ADJ-00022870
This is an appeal under the Unfair Dismissals Act by Mr. Murray, ‘the Complainant’, of a Decision of an Adjudication Officer, ‘AO’, that he had not been unfairly dismissed by Donnybrook Service Station Ltd., ‘the Respondent’. A preliminary issue required consideration by the Court. The Decision of the AO issued on 2 December 2019. Under s. 44(3) of the Workplace Relations Act 2015 an appeal to the Court of an AO Decision must be submitted within 42 days. The last date for receipt of the appeal was, therefore, 12 January 2020. The appeal was not lodged until 14 March 2020. Under s. 44(4) of the Workplace Relations Act 2015 the Court may grant an extension of this time limit for an appeal if it is satisfied that there were ‘exceptional circumstances’ preventing the appeal being lodged in time. The Complainant sought an extension of the time allowed for his appeal on grounds of exceptional circumstances. This was opposed by the Respondent. Summary of Complainant arguments. When the Complainant was dismissed, he was suffering from stress. When the Complainant received the AO Decision, he was unable to afford legal advice. He chose not to open the envelope until such time as he could avail of such advice. The Complainant secured another job just before Christmas. It was not possible to get advice from a Solicitor over the Christmas period. Afterwards, when he was in a position to do so, the Complainant opened the envelope in the presence of a Solicitor on 20 February 2020 and submitted his appeal subsequently. The Complainant is a lay litigant and is unfamiliar with the Court’s procedures. He apologises for any unintended discourtesy to the Court and to the Respondent’s representative. Summary of Respondent arguments The Complainant acknowledged that he received the Decision on 3 December 2019. The Complainant admits that he consciously and deliberately did not open the envelope that contained the Decision. The Complainant was aware of the time limit on any appeal. The ‘exceptional circumstances’ provision in the Workplace Relations Act is a high bar. The Labour Court has determined previously that a miscalculation of time or an ignorance of the law are not exceptional circumstances. In the case of Joyce Fitzsimons -Markey v. Gaelscoil Thulach na nOg (EET034), the Labour Court set out clearly the criteria for determining what are ‘exceptional circumstances’, none of which have been met in the instant case. The applicable law Workplace Relations Act 2015 44. Appeal to Labour Court from decision of adjudication officer (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. Deliberation on preliminary point
The case that set out the Court’s views with clarity on this question is that of Joyce Fitzsimons-Markey v. Gaelscoil Thulach na nOg (EET 034). The most relevant extract from that Determination in respect of the issue before the Court in the instant case is the following; “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” In the view of the Court, the Complainant’s arguments do not come anywhere near meeting this requirement. Unfortunately, stress as a result from dismissal is to be expected. This does not provide an argument that could be deemed to justify or explain, as an exceptional circumstance, the decision of the Complainant not to open the AO’s Decision until after the 42 days appeal period had expired. Legal advice is not required to submit an appeal. While it is acknowledged that a lay litigant may be unfamiliar with the law, the information provided to parties when they receive Decisions from the Workplace Relations Commission make clear to them in a fashion that requires no legal training that th ere is a limit of 42 days within which to appeal and even provides guidance on what such an appeal must cover. The appeal forms provided by the Court are deliberately structured to facilitate all potential appellants, whether or not they are legally represented. In reality, all that is required of appellants to put a valid appeal before the Court is to meet the very basic requirements of the Court, on which the Court provides information that is capable of being understood without the requirement for legal training. In any event, if a potential appellant decides that they need advice before submitting an appeal, the period of 42 days allowed for such an appeal is ample time, as has proved to be the case in the overwhelming majority of appeals submitted to the Court. There is no valid appeal before the Court and, as a result, the Court is not in a position to do anything other than to note that the Decision of the AO still stands. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Noel Jordan, Court Secretary. |
