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FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES: CIDOS TRADING LTD T/A BANBA TOYMASTER
(REPRESENTED BY CAFFERKY SOLICITORS) - AND - STEFAN JENNINGS DIVISION:
SUBJECT: 1. Appeal Of Adjudication Officer Decision No(S) ADJ-00033733 CA-00044506-001. The Respondent’s Notice of Appeal was received by the Court on 29 November 2022. The Representative for the Respondent submitted that the appeal was received within time as the aforementioned date should be regarded as falling on the forty-second day after the date of the Adjudication Officer’s decision. He submitted that, in the alternative and should the Court not hold with him on in that regard, there were exceptional circumstances which justified the late referral of the appeal to the Court. Those, he said, consisted of the following: the Complainant’s misunderstanding in relation to how the time for bringing an appeal is calculated; the fact that the appeal was received only one day out of time and that there was no prejudice to the Complainant arising from the delay. The Law Section 44(3) of the Workplace Relations Act 2015 provides:
Section 18(h) of the Interpretation Act 2005 deals with the interpretation of periods of time that are set down in legislation, as follows:
Section 21 of the Interpretation Act 2005 expressly provides that certain words and phrases defined in the related schedule, whenever they occur in an enactment, are normally construed in accordance with the definition given to them in the 2005 Act. The schedule in question includes a definition of ‘working day’ and ‘week-day’ but not of ‘day’ or ‘days’. It follows, therefore, that the word ‘day’ or ‘days’ when it occurs in an enactment (in the absence of any particular interpretation provided for in the enactment in question) must be given a literal construction as referring to any one of the seven days of the week, unless this were to give rise to an absurdity. (See section 5(1) of the Interpretation Act 2005.) Applying section 18(h) of the Interpretation Act 2005 to the facts, it is apparent that the limitation period specified in section 44(3) of the Workplace Relations Act 2015 expired, in relation to the Respondent’s appeal, on 8 September 2022 – one day prior to the date on which the Respondent actually referred its appeal to the Court. The appeal was, therefore, referred out of time and, if the substantive appeal is to be allowed to proceed to hearing, the Respondent must first demonstrate to the satisfaction of the Court that there were exceptional circumstances which prevented it giving notice of appeal within time. Exceptional Circumstances This Court, in its determination in Joyce Fitzsimons-Markey v Gaelscoil Thulach na nÓg [2004] ELR 110, considered the meaning to be given to the term ‘exceptional circumstances’ and its approach to determining whether such circumstances, when present, can be relied upon by an appellant to extend time:
The Respondent submits that it miscalculated the period of time for bringing an appeal under section 44 of the Workplace Relations Act 2015 and that it was not au fait with section 18(h) of the Interpretation Act 2005. It is well established that ignorantia juris non-excusat. In short, the Respondent cannot rely on its misunderstanding of the law in order to justify its delay in referring its appeal to the Court. The Respondent further submits that the Court should have regard to the fact that its appeal was received only one day outside the statutory timeframe specified in section 44(3) and that that there would be no prejudice to the Complainant were the Court to admit the appeal in those circumstances. Quite clearly, neither of the foregoing matters can be regarded as constituting exceptional circumstances within the meaning of the statute or as having prevented the Respondent from filing its appeal within time. They might be factors that the Court could have regard to in exercising its discretion to extend time in circumstances where an applicant had first successfully established to the Court’s satisfaction that exceptional circumstances existed. Decision Having regard to the foregoing, the Court finds that the Respondent’s appeal was referred outside the statutory timeframe and the Respondent has not established that there were exceptional circumstances at play that prevented it from referring the appeal within time. The decision of the Adjudication Officer, therefore, stands. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ian Kelly, Court Secretary. |
