SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
RAY BYRNE T/A WINEPORT LAKESHORE RESTAURANT
- AND -
(REPRESENTED BY O'MARA GERAGHTY MCCOURT)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against decision of Equality Officers Decision Dec-E2002-020 Under Section 83(1) of the Employment Equality Act, 1998.
2. The Labour Court investigated the above matter on the 13th November, 2002. The Court's decision is as follows:-
In a decision dated the 26th April 2002 an Equality Officer found that the respondent had not discriminated against the appellant contrary to the Employment Equality Act 1998 (DEC-E-2002-020).
- The appellant appealed this decision by letter dated the 7th June 2002.
An Officer of the Labour Court informed the appellant through her solicitor that the notice of appeal had been lodged outside the 42-day period provided by Section 83(1) of the 1998. Employment Equality Act
Section 83(1) of the Employment Equality Act 1998 states as follows:
“not later than 42 days from the date of a decision of a Director under Section 79, the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of appeal”.
- The Court in its hearing has been asked to determine whether the appeal as lodged with the Court complies with Section 83(1) of the Employment Equality Act 1998.
The Appellants Case:
The appellant argues that the phrase 42-days from the date of the decision “should not include the day of the decision in the calculation”.
- It was argued that Section 8(1) of the Anti Discrimination (Pay) Act was considered by Geoghan J. in the Hegarty v The Labour Court (1999) case. In that case the decision of the Equality Officer was dated the 13th January 1998. The learned judge in that particular case said“it is not in dispute that the appeal was received on the 25th February being 43 days after the date of the Equality Officers Recommendation”.The Labour Court on that day had determined that the appellant was one day late with their lodgement of the appeal and had declined, it was alleged, to entertain the appeal.
The calculation approved by Geoghan J. was predicated on excluding the 13th January 1998. If that date had been included the last day would have been the 23rd and not the 24th February.
It was argued that the approach taken by Geoghan J. in the Hegarty Case was consistent with the line of authority, which holds that where phrases used include the words from or after, the starting date is not included (Rathcliffe v Bartholomew) and where the phrase used is “beginning with” that day is included (Hare v Gocher).
Accordingly the appellant argued that the Labour Court had no option but to proceed to hear and determine the appeal in the light of the decision of the High Court in the Hegarty case.
It was argued by the respondent that Section 83(1) clearly states that an appeal must be lodged not later than 42 days from the date of the decision of the Equality Officer and that the notice of appeal must specify the grounds of that appeal.
- It was argued that it was clear from the words “from the date” that the date the Equality Officer signs his/her decision is when the period for appeal commences. This was borne out by the fact that this was in contrast to previous Equality legislation (The Employment Equality Act 1977) in which it was stated that an appeal should be lodged in the Court not later than 42 days after the date of the relevant Recommendation. If it was intended that the date of the decision of the Equality Officer was not to be included in the calculation of the 42 days then Section 83(1) would have been worded differently to reflect this situation.
The Court it was argued did not have any discretion to extend the time limit as set down in the Act for registering an appeal and therefore the respondent contended that the Court had no option to reject this appeal, as it does not comply with the requirements of Section 83 of the Employment Equality Act.
It was also argued by the appellant that as the Act makes no provision for the extension of the appeal period it is submitted that the legislature intended that a party seeking to appeal a finding of the Director would have 42 clear days (excluding the date of the decision) within which to lodge an appeal.
The Court has referred to a number of cases when considering the appellant’s contention that the appeal be treated as having been received within the appeal period specified in the Act.
These included the case of Hegarty and others verses the Labour Court and the Governor of the Bank of Ireland (the Hegarty case) and McGuinness v Armstrong Patents Limited 1980 Irish Reports 289.
- In the Hegarty case the applicants claimed that the words “of the Equality Officer’s Recommendation” should be interpreted as meaning the date of receiving the Equality Officer’s Determination and that the 42-day period should only commence on the date of receipt by the applicant. It is the Court’s view that the judge in this particular case was not asked to or did not consider how the statute should be construed to allow an appeal to be taken within 42 days of the date of the decision of the Director/Equality Officer. This was not an issue for the Court in this particular case. The essence of the case was that both parties agreed that the appeal was out of time and arguments were not advanced as to the exact number of days by which it was out of time and therefore this matter would appear not to have been considered by the Court.
In the case of McMahon J.H. in the High Court in the McGuinness v Armstrong Patents Limited 1980 Irish Reports 289 the plaintiff had suffered personal injuries on the 21st June 1970. McMahon J.H. held in deciding that the plaintiffs action against one of the defendants was statute barred that the period allowed by Section 11, sub section 2(b) of the Statute of Limitations of 1967 was a period of time “reckoned from a particular date within the meaning of Section 11(h) of the Interpretations Act 1937 and that by the express terms of that Section, the 21st June 1970 must be deemed to be included in the period of 3 years allowed by Section 2(b) 1967.
- This finding was approved by Lavin J. in McCann v An Board Pleanála.
- The provisions of Section 11(h) of the Interpretation Act 1937, state as follows:
- “(h) Periods of Time – where a period is expressed to begin on or be reckoned from a particular day, that day shall unless contrary intention appears be deemed to be included in such a period”.
In applying the decisions reached in the cases above and taking into account the Interpretation Act 1937 the Court is satisfied that the period for filing appeals must be deemed to commence in this case on the 26th April 2002 and therefore the appeal filed on the 7th June 2002 is out of time.
- Accordingly the Court has no alternative but to reject this appeal on the basis that it was filed after the appeal period had expired.
The appeal is rejected on the grounds that it is out of time.
Signed on behalf of the Labour Court
24th January, 2003______________________
Enquiries concerning this Determination should be addressed to Helena McDermott, Court Secretary.