EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD566/2012
Employer - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Wexford on 13th November 2013
Claimant: Mr. Derek Dunne B.L. instructed by Mr Sean Ormonde, Employment Matters, Neil J Breheny Solicitors, 4 Canada Street, Waterford
Respondent: Mr. Eamon McCoy, IBEC, 84/86 Lower Baggot Street, Dublin 2
The claimant’s employment ended on 2nd August 2011. A claim under the Unfair Dismissals Acts was lodged with the Tribunal on 21st March 2012 which was outside the stipulated six month time limit. The Tribunal heard submissions from both parties in relation to whether or not there were exceptional circumstances which would allow the Tribunal to exercise its jurisdiction to extend the time limit for lodging of the claim.
Determination on preliminary issue:
Having heard the submissions of the parties the Tribunal exercises its jurisdiction to grant an extension of time as the Tribunal is satisfied that the reason for the failure by the claimant to lodge his claim within the time limit of six months is an exceptional circumstance within the meaning of s.8(2)(b) of the Unfair Dismissals Act 1977, as amended.
The respondent relying on Byrne v P.J. Quigley Ltd UD 762/1994 submitted that the words "exceptional circumstances" were "strong words" and meant something "out of the ordinary" and at the very least must be "unusual, probably quite unusual, but not necessarily highly unusual." The respondent submitted that, in order to extend the time, the Tribunal must be satisfied, the onus being on the claimant, that the exceptional circumstances prevented lodging the claim within the six month time limit and that the exceptional circumstances involved must arise within the first six months. If they arose later they could not be said to have prevented the claim being initiated within that period.
The Tribunal finds that the circumstance causing the delay did occur within the first six month albeit the claimant only became aware of it after the said six months.
Both the claimant and the respondent accepted that Divisions of the Tribunal have differed as to whether the failure of a claimant's solicitor to lodge the claim within the initial six month period can amount to "exceptional circumstances" which prevented the initiation of the claim within that period. See, for example, Robinson v Barlo Group plc UD 402/1995 where a Division of the Tribunal refused an extension of time and Gibbons v Viking Direct (Ireland) Ltd UD 356/2000 where a Division allowed one. This Division is of the opinion that, as in Gibbons v Viking Direct (Ireland) Ltd, the Tribunal should ask itself whether it was usual for a solicitor to allow a case go out of time. If that question is answered in the negative, it follows that for a solicitor to allow a case to go out of time is an "exceptional circumstance." The Tribunal answers this question in the negative and accordingly the reason put forward for the delay by the claimant is an exceptional circumstance.
The respondent submitted that because a claimant did not need a solicitor to lodge his claim and could have done it himself he could not rely on the failure of his solicitor to ground an exceptional circumstance. However, the claimant did instruct a solicitor and was prevented from doing that which he intended firstly by instructing the solicitor to do it and secondly by being given wrong information by the solicitor, albeit in good faith, that the claim had in fact been lodged within the six months. By the time the claimant was made aware the claim had not been lodged it was too late for him to do that which he always intended to do himself within the initial six months. In Fitzsimons-Markey v Gaelscoil Thulach na nÓg  E.L.R. 110 the Labour Court held that a person could be prevented from doing that which they intended to do (such as lodge a claim within the time-limit) by being given wrong information by one whom they have a relationship of trust and confidence with (such as a solicitor).
The respondent also submitted that the 1977 Act had tightened up the system for the initiation of claims. The Tribunal accepts that under the old s.8(2) of the 1977 Act it had no inherent jurisdiction to alter either by abridgement or by extension any provision made by the legislature fixing a time limit for the taking of any step (see Cherubini v Joseph Downes & Son LtdUD 22/1978). However, the amendment to sub s.8(2) by s.7(c) of the Unfair Dismissals (Amendment) Act 1993 now permits the extension of the time limit for lodging a claim to twelve months in cases where "exceptional circumstances" prevented the lodgement of the claim within the normal time-limit of six months.
Sealed with the Seal of the
Employment Appeals Tribunal