TED2113

1. Appeal of Adjudication Officer Decision No: ADJ-00026246, CA-00033176-001

BACKGROUND:

2. The Complainant lodged his complaint with the WRC on 17th December 2019 under the Terms of Employment (Information) Act, 1994. The decision of the Adjudication Officer was appealed to the Labour Court on 3rd February 2021. A Labour Court hearing took place on 24th June 2021.


DETERMINATION :

Background

The Complainant lodged his complaint with the WRC on 17^th December 2019 under the Terms of Employment (Information) Act, 1994. The Adjudication Officer issued a decision in respect of his complaint and awarded him €100 compensation. The Complainant appealed the decision. The appeal was submitted outside of the statutory time limit.

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 in his submission to the Court with the assistance of an Interpreter stated that he had simply forgotten to submit his appeal as he had a lot going on that time. His wife had an operation in May 2016, so he had to carry out the majority of household tasks including looking after their two children. The Complainant also submitted that he had been suffering from depression for two years and was getting treatment for same. It was the Complainant’s submission that this constituted exceptional circumstances.

The Respondent contends that no exceptional circumstances applied which prevented the Appellant from giving notice to the Court of his appeal within the time limits allowed under the Act. The Respondent submitted that while the Complainant was suffering from Depression, he had managed to lodge his complaint with the WRC, attend a hearing at the WRC and lodged his appeal to the Labour Court albeit out of time. In those circumstances it was difficult to understand how his wife’s surgery in 2016 and or his Depression had prevented him from lodging the appeal in time. The legislation clearly sets out that the appeal must be received by the Court within 42 days and in this case that did not happen.

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, albeit in a case under a different statute, 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 the within case the Complainant contends that the surgery of his wife in 2016 and the impact of same on their domestic arrangements in tandem with his Depression led to him forgetting to lodge his appeal in time. The question for the Court is whether these circumstances amount to exceptional circumstances. The Court cannot except that these circumstances in and of themselves are exceptional to the extent that they prevented him lodging his appeal in time

Determination

The Court determines that the within appeal was not made within the time limit set down in the Act at Section 44(4) and consequently the Court does not have jurisdiction to hear the appeal.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
SL	______________________
12 July 2021	Deputy Chairman