UDD2258

1. Appeal of Adjudication Officer Decision No(S). ADJ-00010983 CA-00014715-001

The Adjudication Officer’s Decision issued on 27^th November 2018. The within appeal was received by the Court on 28^th March 2019.

Preliminary Issue - Time Limits.

The decision of the Adjudication Officer issued on 27^th November 2018. The within appeal, were it to have been received in time, would have to have been received by or on 7^th January 2019. The appeal was received on 28^th March 2019.

The Appellant, in her written submission sought an extension of time for the making of its appeal.

In the interest of efficiency of process, and because this matter had the potential to be determinative of the appeal in its entirety, the Court set out at its hearing that it would hear the parties in relation to the matter of time limits first at the hearing. The Court would then proceed to hear the parties in relation to the substantive matter at the same hearing.

The Court would then decide the matter of time limits as a preliminary matter and only if it found for the Appellant in respect of that matter would it proceed to decide the substantive matter.

Both parties confirmed that they understood the approach outlined by the Court and both confirmed their agreement to this approach.

In the event, when the hearing of the preliminary matter concluded and having heard from the Appellant in relation to the substantive matter, it became clear that the Complainant’s written submission had not been received by the Appellant in advance of the hearing. In those circumstances the Court proposed that the hearing of the substantive matter would be held over to a later date if such a hearing was required, so that the Appellant could be supplied with the written submission of the Complainant. In the interim, the Court would proceed to decide the preliminary issue and to inform the parties of its decision. Both parties confirmed their agreement to this proposition.

The Preliminary issue

Relevant Law

The Workplace Relations Act, 2015 (the Act of 2015) at Section 44(3) and 44(4) which, by operation of Section 8A(2) of the Act, applies to a decision of an Adjudication Officer given in respect of a claim for redress under the Act, provides as follows

• 44 (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 Appellant submitted that it had, in error, submitted a letter of appeal to the Workplace Relations Commission (WRC). The Appellant’s representative said that she was not aware that this had happened for some time. When asked to clarify her submission by the Court she confirmed that her letter to the WRC was itself received by the WRC outside the statutory time limit for the making of an appeal and that further delay was caused by the fact that she was unaware for some time that she had made the appeal to the incorrect institution.

The Appellant’s representative submitted that her role was a very busy one with the Appellant company and this was the reason she had submitted the appeal to the WRC rather than the Court notwithstanding the very clear detail as regards the making of an appeal provided to her by the Adjudication Service of the WRC when issuing its first instance decision to the Appellant. This was also the reason she submitted the appeal to the WRC outside of the time limits permitted by the Act of 2015.

Summary of the Claimant’s Position on the Preliminary Issue

The Claimant, when invited, indicated that he did not wish to make a submission on the preliminary issue.

Conclusion of the Court

The Court has given careful consideration to the oral submissions of the parties.

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 burden of proof in establishing the existence of exceptional circumstances rests with the Appellant in this case. To discharge that burden the Respondent must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) of the Act of 2015 existed and that those circumstances acted so as to prevent the applicant from lodging their appeal in time.

The Court is of the view that the Appellant has not established that exceptional circumstances existed in this case such as to have prevented the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer.

The Court therefore cannot find that time should be extended for the making of the within appeal.

Having reached that conclusion, the Court cannot proceed further in the matter.

Decision

For the reasons set out above, the Court decides that the within appeal is statute-barred and therefore must fail. The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
06 October 2022	Chairman