EDA2226

1. Appeal Of Adjudication Officer Decision No. ADJ-00014745, CA-00018937-003

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 28^th January 2020. A Labour Court hearing took place on 27 September 2022. The following is the Court's Determination:



DETERMINATION:

This matter comes before the Court as an appeal by Dureza Sumayao (the Appellant) against the Decision of an Adjudication Officer in a complaint made by her under the Employment Equality Act, 1998 (the Act) against her employer, Noonan Services Group Limited (the Respondent). The Adjudication officer decided that the complaint of the Appellant was not well founded.

The date of the Adjudication Officer’s Decision was 17^th December 2019. An appeal of that decision, if it were to be made within the time limit for the making of an appeal of 42 days specified at Section 44(3) of the Workplace Relations Act 2015 (the Act of 2015), would require to have been received by the Court no later than 27^th January 2020. The worker’s Notice of Appeal was received by the Court on 28^th January 2020.

The Appellant made no application to the Court to exercise its jurisdiction under Section 44(4) of the Act to extend the time limit available for the making of the within appeal. The Court, noting in particular that the Appellant, while represented before the Court, did not appear to be professionally represented, decided to hear from the parties in relation to the matter of time limits.

In doing so, the Court made clear to both parties that a decision of the Court on this matter had the potential to dispose of the entire matter. The Court advised the parties that the matter of statutory time limits applicable would be decided initially; with the Court then proceeding to decide the substantive matter only if a decision is made to extend the time limits applicable. Both parties confirmed their agreement to the adoption of this approach by the Court.

Relevant Law in respect of statutory time limit applicable

The Act of 2015 at Section 44(2) (3) and (4) provides as follows:

• 44 (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.

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 allowed for the giving of notice and that those exceptional circumstances prevented the giving of a notice of an appeal to the Court by the due date.

The Court addressed the matter 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 Respondent submitted that it was satisfied that the Court understood the law as it applied to the time limits set out in the Act of 2015 and that it would await the decision of the Court.

It is for the Appellant to both explain and justify the delay in lodging her appeal and to set out the exceptional circumstances which would support a decision of the Court to extend the time available for the making of the within appeal. The Court does not accept that the fact that the Appellant had not secured the services of a solicitor or that she thought that she had posted her appeal in time amount to exceptional circumstances which affected her ability to make her appeal in time.

Decision

Having regard to the submission advanced on behalf of the Appellant, the Court is of the view that she has not offered a justifiable excuse for the delay in making her appeal within the statutory period allowed for the making of an appeal. The appeal therefore fails.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
OC	______________________
20 October 2022	Chairman