EDA2320

1. Appeal of Adjudication Officer's Decision No(S). ADJ-00027323, CA-00035658-001

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 27 September 2022. A Labour Court hearing took place on 4 April 2023. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is an appeal on behalf of Cavtat Taverns 3 T/A Urban Eats (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00027323/CA-000035658-001, dated 5 October 2020) under the Employment Equality Act 1998 (‘the Act’). There was no appearance by or on behalf of the Respondent at the hearing before the Adjudication Officer. Ms Ingrid Gumaraes Hanlon’s (‘the Complainant’) complaints of discrimination and harassment on the gender ground were deemed well-founded by the Adjudication Officer and she was awarded compensation of €25,000.00 under the Act. The Respondent appealed from that decision by Notice of Appeal received in the Court on 27 September 2022. The Court heard the appeal in Dublin on 4 April 2023. There was no appearance by or on behalf of the Complainant at the appeal hearing although she had filed a written submission.

Application for extension of time

The Respondent’s appeal to the Court was made almost two years after the Adjudication Officer had issued her decision. The Respondent, therefore, made an application to the Court for an extension of time to bring the within appeal. This application was opposed by the Complainant in her written submission to the Court.

The Respondent submits that it only became aware of the Adjudication Officer’s decision on 22 August 2022 when it received a summons from the District Court in relation to enforcement proceedings initiated by the Complainant. It is accepted on behalf of the Respondent that the District Court enforcement notice clearly identified the adjudication number of the decision that was before the District Court for enforcement. Nevertheless, a further five weeks passed before the Respondent submitted its appeal to this Court. We return to this period, and the justification advanced by the Respondent for its delay during it, later in the Determination having first considered the Respondent’s submission in relation to its non-appearance at the hearing before the Adjudication Officer and its lack of knowledge of the first-instance decision up until 22 August 2022.

The Respondent submits that it did not receive notification of the hearing before the Adjudication Officer that took place on 3 September 2020, the initiating complaint having been received by the Workplace Relations Commission on 12 April 2020. The Court notes that the Adjudication Officer does record in his decision that he was “satisfied, having made enquiries, that the Respondent was on notice of the date, time and venue for the hearing”. He also recorded in his written decision that, “The Respondent did notify the WRC that they ceased trading on 13/03/20 and were proposing to liquidate the company. There was no further correspondence received from the Respondent by the WRC”. It is appropriate to record at this point that the Court was informed at the within hearing that the Respondent’s status has not changed since then: it has not resumed trading but neither has it been officially wound down.

A copy of the complaint under the Act submitted by the Complainant to the Workplace Relations Commission on 12 April 2020 was before the Court. It is clear on the face of the complaint form that the Complainant furnished the Workplace Relations Commission with an address for the Respondent at Terminal 1 in Dublin Airport. The Respondent submits that it did not receive the correspondence from the Workplace Relations Commission notifying it of the Complainant’s complaint of 12 April 2020 (bearing reference number CA-00035658) because the Respondent “was no longer occupying the offices at Terminal 1 Dublin Airport and also in any event postal services to the Airport had been suspended”. Mr Donal Cassidy, a Director of the Respondent, was named by the Complainant as contact person for the purposes of the complaint. The Complainant also provided an email address for Mr Cassidy.

Using the aforementioned email address, the Workplace Relations Commission forwarded the following documentation to Mr Cassidy:

• On 21 August 2020, the Commission forwarded Form EE2 and the Complainant’s written submission in support of her complaint under the Act;

  On 1 September 2020, the Commission forwarded additional submissions and supporting documentation including legislation and case law that the Complainant intended to rely on.

The Respondent’s written submission summarises the facts as the Respondent views them in relation to the period prior to its receipt of the District Court enforcement notice on 22 August 2022:

• “In summary, despite the Appellant and the Respondent (in her second and only live complaint by the time of the hearing) providing the correct contact for the Appellant, the WRC failed to notify the Appellant of the hearing or the Determination.”

• “The Appellant only became aware of the Determination on 22 August 2022 when the directors of the Appellant were served with notice of District Court enforcement proceedings in relation to the matter. The next day on 23 August 2022 the Appellant’s solicitors wrote to the WRC to seek clarification. It was only after engagement with the WRC that the Appellant was fully appraised of what had occurred. The adjudication file sent by the WRC on 15 September showed a number of communication mishaps, as set out below, that the explain the lack of notice. It was after this clarification that the Appellant appealed the Decision to this honourable court. In that sense the Appellant has acted expeditiously in lodging its appeal once it became aware of the Determination and the events that led to it not having received notice of the hearing or Determination.”

The Respondent opened two previous Determinations of this Court – Luiz v Zoric (TED1712) and Yeria Limited v Adebbite (MND176) – to support its application to the Court for an extension of time to enlarge time for bringing its appeal on the grounds, it submits, it was prevented from bringing the appeal within the statutory 42-day period specified in section 44(3) of the Workplace Relations Act 2015 by reason of exceptional circumstances. The Respondent’s written submission summarises the exceptional circumstances relied on as follows:

• “As noted in the submissions of the Appellant dated 20 October 2022, in the instant case the WRC failed to notify and send a copy of the Determination to the correct named representative of the Appellant and failed to make the representative of the Appellant aware of the hearing or the Determination by electronic means. The failing was exacerbated by the issues with access to Dublin Airport caused by the Covid-19 pandemic. These circumstances are “regular or routinely or normally encountered.” It is for these exceptional circumstances that the Appellant was unable to file its appeal within the statutory timeframe.”
  
  

The Law

Subsections (2) to (4) of Section 44 of the Workplace Relations Act 2015 provide:

• “(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 meaning to be given to the words ‘exceptional circumstances’ was considered by this Court when construing identical words in the Employment Equality Act 1998 (prior to its amendment in 2004) in Fitzsimons-Markey v Gaelscoil Thulach na nÓg [2004] E.L.R. 110). The Court, in its Determination in that case, said that 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 in Fitzsimons-Markey outlined the correct approach that should be taken to determine, whether in any particular case, the circumstances relied on by an appellant to extend time constitute ‘exceptional circumstances’:

• “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 (see R v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.)”

Discussion and Decision

As previously noted, the Complainant – when making her initial complaint - provided the Workplace Relations Commission with an address for the Respondent at Dublin Airport The Complainant named a Director of the company – Mr Cassidy – as the Respondent’s representative for the purpose of receiving the complaint. It is accepted on behalf of the Respondent, that Mr Cassidy received correspondence from the Commission on 21 August 2020 and on 1 September 2020 in relation to ADJ-00027323 which included the Complainant’s written submissions but neither of which referred to a hearing date. The Respondent submits on the basis of the foregoing that it was not on notice of the hearing of ADJ-00027323 on 3 September 2020.

The Adjudication Officer’s decision issued on 5 October 2020 under cover addressed to Mr Stephen Ryan at the Respondent’s offices in Terminal 1, Dublin Airport. It will be recalled that Mr Ryan had been the named recipient in an earlier complaint (subsequently withdrawn before hearing) by the Complainant against the Respondent. Although, the Respondent had informed the Workplace Relations Commission that Mr Ryan had ceased his employment with it, the information does not appear to have been correctly applied within the Commission’s database. Hence, the Commission’s error in addressing the correspondence in relation to the Adjudication Officer’s Decision to Mr Ryan.

The correspondence was clearly sent to the address of Respondent’s offices where it carried on business at Dublin Airport. It is of no material significance that a former employee’s name appeared on the envelope. There can be no doubt that the intended ultimate recipient was the Respondent.

The Respondent has further submitted that it had no access to Dublin Airport that the time due to Covid-19 restrictions. No evidence was proffered to support this submission. However, if that in fact was the case, the Court fails to understand why the Respondent did not take appropriate steps to have its correspondence redirected to an address that was accessible at the time such as that of one of its directors. The Court is aware from its own knowledge that that is a matter than can be arranged on-line with An Post– even during a pandemic. Mr Cassidy, such a director, was clearly aware that the Complainant was pursuing a complaint under the Act against the Respondent and yet appears not to have taken any steps to ensure that the Respondent had timely notice of any postal correspondence that might issue from the Commission in relation to this matter. In the Court’s considered opinion, it would not be in keeping with the intent of the legislature, in enacting section 44(4) of the Workplace Relations Act 2015, to permit the Respondent to rely on its failure to take appropriate steps to ensure it had access to correspondence addressed to its place of business to justify its delay in initiating its appeal in this case or that the addressee of any such correspondence – whether in error or otherwise -happened to be a former employee of the Respondent.

The Determination now turns to the period beginning on 22 August 2022, the date on which the Respondent submits it received the District Court Notice of Motion dated 5 August 2022. The Respondent’s case is that it took all of five weeks to investigate the circumstances surrounding its lack of knowledge in relation to the first instance hearing that had taken place in this matter on 3 September 2020 and the Adjudication Officer’s Decision that had issued on 5 October 2020. It further submits that its need to do so in order to determine whether or not it had a feasible basis for seeking an extension of time to bring the appeal constitutes ‘exceptional circumstances’ within the meaning of seeking 44(4) of the Workplace Relations Act 2015. Counsel for the Respondent was emphatic that the Respondent’s directors made contact with their solicitors as soon as 23 August 2023 and the solicitors then wrote to the Commission to seek certain clarifications. The Court’s considered view is that a prudent solicitor in those circumstances would have advised their client to immediately refer an appeal to this Court. Such an appeal could have been withdrawn later if the client determined that there was in fact no feasible basis on which it could seek the necessary extension of time.

In all the circumstances, therefore, the Court – having regard to its established jurisprudence in relation to the meaning to be given to the words ‘exceptional circumstances’ in section 44(4) of the Workplace Relations Act – finds that the circumstances relied on by the Respondent, albeit unusual and uncommon, did not act to prevent the Respondent referring its appeal to this Court, at the very latest, beyond a day or two after it had received the District Court Notice of Motion and consulted its solicitors. It is not the case, as submitted by Counsel, that the Respondent acted expeditiously to refer its appeal after 22 August 2022.

The application to extend time for the appeal is accordingly denied.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
17 April, 2023	Deputy Chairman