SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
(REPRESENTED BY WILLIAM FRY SOLICITORS)
- AND -
(REPRESENTED BY EQUALITY AUTHORITY)
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal Against Equality Officers Decision Dec E2002-017
2. The Labour Court investigated the above matter on the 13th November, 2002. The Court's decision is as follows:-
The decision of the Director of Equality Investigations dated the 14th March 2002 reference DEC-E2002-017 was appealed by the Company. The appeal was filed with the Court on the 25th April 2002.
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”.
There are no provisions in the Act for extending the time for appeals to be lodged. In this particular case the appeal was lodged outside the time limit as interpreted if one takes into account that the first day of the 42-day period is the date on which the Equality Officer signed the decision.
The Equality Authority, representing the employee involved in the case, did not attend the hearing, but indicated by letter that it was not seeking to be heard by the Court in relation to the matter.
The appellant, while accepting that the Act does not state that the time limit commences from the date of receipt of the relevant decision, has argued that a reasonable interpretation of the statutory provision in question would allow the Court to hold that the appeal period did not commence on the date of the Equality Officers recommendation but on the day after.
The appellant also argued that in the case of Hegarty v The Labour Court (1999) Geoghegan J. when addressing the question as to whether it was possible to construe the relevant provision in a manner that permitted the calculation of time from the date on which the decision was communicated to the parties, appeared to have accepted that the statute could be construed in a manner to permit an appeal taken within 42 clear days of the date of the decision of the Director/Equality Officer, thus disturbing the presumption under Section 11(h) of the Interpretation Act 1937 which states 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”.
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 been referred to a number of cases in support of the appellant’s contention that the appeal be treated as having been received within the appeal period specified in the Act.
The Court considered these cases, particularly the case of Hegarty and others v the Labour Court and the Governor of the Bank of Ireland (the Hegarty case) and McGuinness v Armstrong Patents Limited 1980 IR 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 whether the appeal period started on the date of the equality officers decision or the day after. 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. Arguments were not advanced as to the exact number of days by which it was out of time. Therefore the matters raised in this appeal were not before the Court in the Hegarty case.
In the case of McGuinness v Armstrong Patents Limited 1980 IR 289 the plaintiff 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 subsequently approved by Lavan J. in McCann v An Board Pleanála.
The Court has been referred to some English authorities that would appear to have reached a contradictory conclusion, but this Court accepts as binding Authority the decisions referred to above.
On reading the provisions of section 11 (h) of the Interpretation Act 1937 and following the authorities outlined above the Court can come to no other conclusion than that the period for filing the appeal in this case must be deemed to commence on the 14th March 2002 and therefore the appeal filed on the 25th April 2002 is out of time.
Accordingly the Court has no alternative but to reject this appeal on the basis that it is 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.