SECTION 77(6), EMPLOYMENT EQUALITY ACT, 1998
ALDI STORES (IRELAND) LIMITED
(REPRESENTED BY VINCENT & BEATTY SOLICITORS)
- AND -
(REPRESENTED BY MACGUILL & COMPANY SOLICITORS)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Application under Section 77(6) of the Employment Equality Act, 1998.
2. The worker submitted her case to the Labour Court on the 1st April, 2004. Submissions were received from both parties. The Court investigated the case in accordance with Section 77(6) of the Employment Equality Act, 1998, on the 19th November, 2004. The following is the Court's decision:-
This is an application by Ms Jennifer Murphy (the Applicant) for an extension of time in which to bring a complaint of discriminatory dismissal against her former employer, Aldi Stores (Ireland) Ltd (the respondent). The application is made pursuant to Section 77(6) of the Employment Equality Act 1998 (the Act).
The material factual circumstances upon which the applicant relies can be summarised as follows:
1. The applicant was dismissed by the respondent on 24th September 2003 for alleged gross misconduct. The applicant was pregnant at the time.
2. The applicant instructed solicitors in relation to her dismissal who wrote to the respondent in the matter during September and October 2003.
- 3. On 3rd November 2003 the applicant's solicitors wrote to the respondent indicating their intention to initiate proceedings under the Unfair Dismissal Act 1977-2001. No such proceedings were subsequently issued.
4. In December 2003 the applicant's child was born.
5. In March 2004 the applicant attended her solicitor and instructed that proceedings be issued under the Act arising from her dismissal. She completed the appropriate form for seeking redress on 18th March 2003 which she left with her solicitor for transmission to the Court.
6. Under cover of a letter dated 22nd March 2004 the form was sent to the Court by ordinary post.
7. At that time a postal strike was in progress affecting certain geographical areas of the country.
8. The form was received at the Court on 1st April 2004.
9. The time limit for lodging the claim expired on 23rd March 2004.
Ms Honan BL for the applicant submitted that the postal strike in progress at the material time constituted an exceptional circumstance which prevented the application being received by the Court in time. Counsel submitted were it not for the postal strike the form would have been delivered in the ordinary course of post on 23rd March 2004. Counsel referred the Court to the decision of the Court of Appeal inConsignia v Sealy  IRLR 624which, she submitted is authority for the proposition that where a claim is unexpectedly delayed and not delivered in the ordinary course of post, an extension of time should be granted.
Ms Barrington BL, for the respondent submitted that the events relied upon by the applicant could not constitute exceptional circumstances preventing the claim being lodged in time. Counsel submitted that the existence of a postal strike was well known at the time and it could not reasonably have been assumed that the claim would arrive in time. Counsel further submitted that even in normal circumstances it could not be assumed that a letter posted in Dundalk on 22nd March would arrive in Dublin on the 23rd.
Conclusions of the Court
In this case it is for the applicant to both explain the delay and to offer a justifiable excuse for the delay. In accordance with Section 77(6) of the Act she must do so by reference to some intervening exceptional circumstance which prevented her from delivering the claim on time.
Even if the Court holds with the applicant on that point it retains a residual discretion and it must consider if there are countervailing factors which would make it unjust to enlarge the time limit. In considering what those factors might be, the Court, inDetermination 042 - Department of Finance and IMPACT, CPSU and PSEU,adopted the dictum of Blayney J inBoard na Mona v Sisk, Hight Court, Unreported, 31st May 1990,as follows:
1. The desirability of adhering to time limits
2. The likelihood of prejudice to the party opposing the application if the time is extended.
3. The length of the delay by the applicant
4. Whether the applicant has been guilty of unreasonable or culpable delay.
5. Whether the applicant has a good arguable case on its merits.
InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg  ELR 110this Court gave extensive consideration to the meaning of the expression"exceptional circumstances". In that case the Court stated as follows:
The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act. That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another. Whilst the Court has considered the earlier decisions to which it was referred, they are of limited assistance since the circumstances of neither of them correspond to those of the instant case.
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  2 All ER 13 at 20 per Lord Bingham CJ.)
Applying that approach to this case, the Court must consider if it is out of the ordinary course or uncommon for a Solicitor to send a client's claim by post one day before the time limit of its initiation is due to expire, during the currency of a postal strike and without making any back up arrangements, such as sending a copy by fax or by courier.
In deliberating that question the Court has concluded that what occurred must be regarded as exceptional. Furthermore, it is clear that those circumstances prevented the claim being presented in time, since if the transmission of the claim had been delivered other than by posting it to the Court it would have arrived in time.
What occurred also explains the delay and provides the applicant with a justifiable excuse for the delay. The applicant completed the necessary forms on 18th March 2004. She left the forms with her Solicitor in the reasonable belief that she had done what was expected of her and that the Solicitor would do all that was necessary to properly initiate her claim. A Solicitor is an Officer of the Court who is held out under the authority of an Act of the Oireachtas as authorised to conduct legal business on behalf of clients. In the Court's view, having placed her affairs in the hands of an established and respected firm of solicitors, the applicant could not be fixed with responsibility for what subsequently occurred.
Having so decided the Court must go on to consider if there are countervailing factors which would make it unjust to enlarge the time for bringing the claim. The delay in this case was short. As already found the applicant cannot be held culpable for the delay. There is no suggestion that the respondent has suffered prejudice by the delay.
Counsel for the respondent submitted that the Court could not reasonably conclude that the applicant has a good arguable case since she never alleged that she had been discriminated against before initiating her claim. However, all that the Court could be expected to do in a preliminary application is to consider if the basic assertions relied upon by the applicant, if proved at the hearing of her claim, could ground a good arguable case. In this case the applicant asserts that she was dismissed because of her pregnancy. If she proves that assertion as a fact she undoubtedly has a good arguable case.
In all the circumstances the Court accepts that the applicant has shown that there were exceptional circumstances which prevented her claim from being presented in time. The Court determines that the time for bringing the claim can be extended up to any and including the 1st day of April 2004. Accordingly, the claim was presented within the time limit as extended.
Signed on behalf of the Labour Court
2nd December, 2004______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.