UDD2335

1. Appeal of Adjudication Officer Decision No(S) ADJ-00027354 CA-00034995-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 24 January 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 26 June 2023. The following is the Determination of the Court:-

DETERMINATION:

BACKGROUND

This is an appeal by Jack Hargrave (hereafter “the Complainant”) against an Adjudication Officer’s Decision ADJ-00027354 given under the Unfair Dismissals Acts 1977 to 2015 (the Acts) in a claim that Boston Scientific Ltd (hereafter “the Respondent”) unfairly dismissed him. The Adjudication Officer held that the Complainant had less than one year’s continuous service and therefore cannot maintain a complaint under the Act.

At the commencement of the hearing the Court informed the parties that it would hear them in respect of the preliminary issue relating to the submission of the appeal outside of the statutory time limits. In the course of hearing the preliminary issue, the Court drew the party’s attention to a recent decision of the High Court Mc Loughlin v Murray Senior [2022] IEHC 537, and facilitated the parties making written submissions in respect of it.

Preliminary issue

Ms Madden BL on the behalf of the Complainant sought an extension of time in respect of 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 fro m 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.

Summary of the Complainants submission on the preliminary issue

Ms Madden BL on behalf of the 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. Ms Madden BL set out the relevant circumstances applying as follows:

The decision was emailed on 12^th December 2022, and the notice of appeal was given to the Labour Court on 24 January 2023. 42 days, including the date of the decision expired on the 22 January 2023. However, this does not take into account any extension of time to allow for the Christmas period. Ms Madden BL submitted that there were four grounds of exceptional circumstances in this case and that the Respondent will suffer no prejudice from an extension of time by two days, being granted.

• 
  1) It was submitted that the occurrence of the Christmas break amounts to an exceptional circumstance which should persuade the Labour Court to allow such an extension of time. The Labour Court was closed on the 26^th and 27^th December and 2^nd January and that it is exceptional that so many closure days would exist in any 42-day period. It was submitted that the existence of Christmas, as an important national holiday ought to recognise that other businesses are similarly closed. Therefore, it is asked that three days of an extension be permitted, in the exceptional circumstances that these days are included to take account of the fact that the Complainant’s representative were also closed for the Christmas period.

  2) Other exceptional circumstance that should be taken into account include the fact that the decision was not brought to the attention of the Complainant, until the afternoon of the 13^th January 2023. The Complainant’s representative missed the email sent by the WRC with the decision attached.

  • 
    When the Complainant first heard of the appeal on the 13^th January 2023, he immediately expressed an intention to appeal. It was the representative of the Respondent at the hearing of another matter who brought to the Complainant’s attention the fact that the decision had issued. The Respondent, therefore, was aware that the Complainant was going to appeal and suffered no prejudice by the appeal being two days late.
  
  3) It was submitted in the alternative, that exceptional circumstances which should be taken into account in extending the time within which to appeal, include the fact that the Adjudication Officers decision was made, without a full exploration of the facts upon which the preliminary ruling might be made. The email was missed by the Complainant’s representative, in circumstances where neither the Complainant, nor his representative, was anticipating that any decision would be made on this matter. The decision was not expected because the Adjudication hearing was cut short, prior to the applicant giving evidence and the claim was adjourned to allow for the exchange of submissions and it was anticipated that there would be a further hearing.

  4) It was submitted that the final ground to be considered in extending the time on exceptional grounds was that the decision of the Adjudication Officer, was not notified to the Complainant or his representative, in accordance with the Workplace Relations Commission’s own procedures, in that, consent was not given for documents to be served on the Complainant or his representative by email.

Ms Madden BL submitted that a relevant case for the Court to consider is Yeria Ltd v Adegbite MND/6/2017. In that case the WRC sent all correspondence to an address that was not the registered address of the party, including the fact that there was a complaint, the date of the hearing, and the decision arising from the hearing. The Labour Court held that the decision of the WRC to send documents to an address other than the registered address, in circumstances where none of the correspondence was received did amount to exceptional circumstances. Ms Madden BL submitted that the issuing of the decision by the Adjudication Officer by email to the Complainant’s representative when consent to receive documents by email was not elicited was also an exceptional circumstance.

Summary of the Respondent’s submission on the preliminary issue

Ms Crosbie IBEC on behalf of the Respondent submitted that it is well established that in order to consider an appeal of this nature, the Labour Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Labour Court and the Labour Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Labour Court. The burden of proof in establishing the existence of exceptional circumstances rests with the Complainant in this case.

In Employment appeals Tribunal decision, Byrne v PJ Quigley [1995] ELR 205 the meaning of exceptional circumstances was considered, and it was held that the word meant “out of the ordinary, unusual, probably quite unusual but not necessary highly unusual”. In GaelScoil Thulach na nOg and Joyce Fitzimons-Markey [EET034] the Labour Court held

• “ 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 on 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, special, or uncommon. To be exceptional a circumstance need not be unique, unprecedented, or rare; but ti cannot be one which is regular or routinely or normally encountered.”

In respect of the first ground raised by the Complainant, it is the Respondent’s position that there is nothing exceptional with the Christmas period. No barriers existed that would have prevented the submission of the appeal within the statutory time limits.

In respect of the second ground raised, the Complainant and his legal representatives were present on the 13^th January 2023, when the Respondent’s representative indicated that the decision in this case had been issued by the Adjudication Officer. A recess was taken and following same it was confirmed by the Complainant’s representative that they had received the emailed decision, but that the email had been missed. It is clear from the Complainant’s submission to this Court, that on that date, the Complainant both became aware that the decision had issued and had informed his representative that he wished to appeal same. This was well within the 42 days’ time limit.

Ms Crosbie submitted, that it appears that the original legal firm mistake in missing the notification of the decision, was compounded by a second error in failing to lodge the appeal within time. The question for the Court is, whether this constitutes exceptional circumstances. She opened case law whereby the Court had held, that the miscalculation of a deadline cannot be accepted as an excuse for failure to comply with a statutory time limit.

In respect of the third ground raised by the Complainant both parties attended a remote adjudication on the 12^th October 2021. Both parties made verbal and written submissions and were heard on the issue of the preliminary objections by the Respondent. The Respondent opened case law to the Adjudication Officer regarding the matter of preliminary arguments, and the finding of the Supreme Court that it is a pointless exercise to engage in a trial of a fact over several days when, whether or not the resolution of such facts may yield any redress to the claimant, is clearly the first hurdle that he or she must cross. Bisi Adigun and the Equality Tribunal [2015] 2011/10/r. Following the remote hearing the Adjudication Officer issued a decision to both parties on the 12^th December 2022, based on those preliminary issues, and arguments that were heard on that day.

On the final ground raised by the Complainant, that they had not agreed to receive the decision by email, the original notice of hearing was sent electronically, and the Respondent attended a remote hearing on the 12^th October 2021, and no objection to receiving correspondence electronically was raised.

The Respondent notes that the McLoughlin case supports their contention that the occurrence of Christmas, and closures arising from the occurrence of Christmas, are not exceptional. The onus is on the Complainant to ground their application with evidence, which has not happened in this case. No real evidence has been adduced to explain the delay in lodging the appeal between the date the Complainant states they became aware that the decision had issued 13^th January 2023 and the expiry of the statutory time limit on the 22nd January 2023.

Discussion and conclusions.

The Labour Court rules at rule 1 states “ the appeal should be initiated by notice in writing delivered to the Court within 42 days from the date of the decision being appealed. In accordance with the provisions of the Interpretation Act 2005 the date of the decision is day 1 of the 42 day period”. The Interpretation Act 2005 at part 2 of the schedule does not define the word “day” but it defines “working day” as “means a day which is not a Saturday, Sunday or public holiday”

It is not disputed that section 44(3) of the WRC Act 2015 refers to “ 42 days” and not “42 working days”. If the Oireachtas had intended for weekends or public holidays to be excluded from the 42 days, then the term “working day could have been used in the Act but the Oireachtas choose to use the word ‘days’. Therefore, the Court can only conclude that the 42 days must be interpreted as including Saturdays Sundays and Public holidays.

The burden of proof in establishing the existence of exceptional circumstances rests with the Respondent 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 his appeal in time.

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 has made numerous submissions about Christmas closures and the manner in which they received the notification from the Adjudication Officer, and whether that was in compliance with the WRC procedure. However, it was not in dispute that Complainant became aware that the Adjudication Officer’s decision had issued on the 13^th January 2023.

Even if the Court was to accept the issues contended for by the Ms Madden BL, they all occurred prior to that date. Ms Madden BL submitted that when the Complainant became aware of the Adjudication Officers Decision and the content of same on the 13^th January 2023, he immediately instructed his legal team that he wished to appeal the decision. The issue for the Court, therefore, is what were the exceptional circumstances that prevented the lodging of the appeal between the 13^th January 2023, and the 22^nd January 2023.

The lodging of an appeal to the Labour Court is not a laborious task, in that it only requires the completion of a form with minimum details which can be submitted by email, post or hand delivered to the public office during office hours. In the case to hand the Court was not provide with any evidence of any issue that prevented the submission of the appeal within that timeframe.

The Court believes the test set out in Gaelscoil Thulach na nOg is the correct test to apply. Applying that test to the facts of this case the Court does not except that exceptional circumstances existed. Even if the Court was to accept that exceptional circumstances existed the Court finds that the Respondent has failed to show how this prevented the Respondent from lodging its appeal in time.

In all of these circumstances the Court finds that the Complainant has not established that exceptional circumstances arose in this case such as to be regarded as being of such a nature as to prevent the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer.

Determination

The Court determines that the within appeal was made outside of the time limit set down in the Act at Section 44(3) 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
CO'R	______________________
30 August 2023	Deputy Chairman