SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
PAUDIE O' SHEA
(REPRESENTED BY LYNCH & BRADLEY, SOLICITORS
- AND -
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998.
2. A Labour Court hearing took place on the 18th of February, 2005, in Tralee. The following is the Court's determination:
The complaint referred to the Court in the complainant's originating application was directed against Paudie O'Shea, Blue Flyer Developments. At the hearing the Court was told that at all material times the complainant's employer was Mr Paudie O'Shea. The Court amended the name of the respondent to that in the title of this determination.
At the outset of the hearing, the respondent objected to the case proceedings on grounds that it was submitted outside the six-month time limit prescribed by Section 77(5) of the Act. The respondent also raised objections to the proceedings on grounds of excessive delay in bringing the matter on for hearing. He contended that as a result of the delay a witness vital to his defence is no longer available.
The Court reserved its decision on these preliminary issues and proceeded to hear the substantive case on the basis that if it held with the respondent on either of the preliminary points that would dispose of the case.
The Court was told that the complainant was paid by the respondent on 5th April 2001. He was paid one week in arrears and would, therefore, have last worked for the respondent prior to that date. The complainant was not certain as to when his employment came to an end and could not dispute the respondent contention on this point. The complaint was received by the Court on 7th November, 2001. Since this date is more than six months from the date on which the complainant's employment terminated the claim was clearly presented out of time.
The Court then proceeded to consider if there were exceptional circumstances which prevented the claim being presented in time. The complainant told the Court that following his dismissal he sought advice from a friend and was advised to visit a Free Legal Advice Centre (FLAC). He thought that this was some weeks after the dismissal. He subsequently received correspondence from FLAC as a result of which he contacted the Equality Authority which presented a complaint on his behalf. The complainant did not know when he contacted the Authority. The respondent told the Court that some days after the complainant had ceased working his father had contacted him to complain at the manner in which the complainant had, allegedly, been treated. The respondent told the complainant's father that the complainant should return to work and he would investigate his complaints. The respondent heard nothing further until he received notification of the complaint from the Court.
InJoyce Fitzsimons-Markey v Gaelscoil Thulach na n�g 15 E.L.R. 110 the Court considered the approach which should be adopted in cases such as this. Having reviewed a number of authorities, the Court concluded:
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 E.R. 13 at 20 per Lord Bingham C.J.)
In this case there was nothing to indicate the presence of exceptional circumstances which prevented the complainant moving to lodge his complaint in time. He sought legal advice within the time limit and the Court has no reason to believe that he was not properly advised of the need to initiate his claim within six months of the date on which he was allegedly dismissed. Moreover, their is nothing to indicate that the complainant was not properly advised as to how to proceed if he wished to pursue his claim.
In these circumstances, the Court cannot identify any exceptional circumstances which prevented the claim being presented in time. Accordingly, the Court must hold that this claim is statute barred and cannot be entertained by the Court.
Accordingly, the Claim is dismissed.
Signed on behalf of the Labour Court
28th February, 2005______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.