FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : HIBERNIA COLLEGE (REPRESENTED BY FLYNN O' DRISCOLL BUSINESS LAWYERS) - AND - MARY MURRAY (REPRESENTED BY JOHN O'LEARY & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00000216 CA-00000442-001.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 29th June, 2018. The following is the Determination of the Court:
DETERMINATION:
The complainant in this case initiated a complaint under the Unfair Dismissals Act 1997 – 2015 that was determined against her by way of a decision of an Adjudication Officer which was delivered on 25 October 2016. .The adjudication officer decided that the complaint was not well founded and determined the matter against the Complainant. The Complainant filed an appeal against that determination. However the Respondent submits that the appeal was filed outside the statutory time limit set down in the Act and that the Court has no jurisdiction to hear the appeal.
The appeal came before the Court on 29 June 2018.
Preliminary Issue
The Act provides as follows in relation to appeals to the Labour Court against a decision of an adjudication officer under this Act: -
44. (1) (a) A party to proceedings undersection 41may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall—
(i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
(ii) make a decision in relation to the appeal in accordance with the relevant redress provision, and
(iii) give the parties to the appeal a copy of that decision in writing.
(b) In this subsection “relevant redress provision” means—
(i) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a complaint under that section of a contravention of a provision of an enactment specified in Part 1 or 2 ofSchedule 5, the provision of that enactment specified in Part 2 ofSchedule 6,
(ii) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a dispute as to the entitlements of an employee under an enactment specified in Part 3 ofSchedule 5, the provision of that enactment specified in Part 2 ofSchedule 6and
(iii) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a complaint under subsection (3) of that section, paragraph 2 of Schedule 2 to the Act of 2012.
(2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates.
(3) Subject to subsection (4) , a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned.
(4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.
The decision of the adjudication officer was delivered on 25 October 2016. The Act provides for an appeal to this Court against a decision of an adjudication officer within six weeks of the date on which the decision is delivered. Accordingly, the time for filing an appeal in this case expired on 5 December 2016.
However, the Act also provides for an extension of time beyond the 42 days where the Court is “satisfied that the notice was not so given before the expiration due to the existence of exceptional circumstances.”
In this case the Complainant filed her appeal on 30 January 2017 some 56 days after the expiry of the statutory time limit set out in section 4(2) above.
The Complainant sought an extension of time citing “exceptional circumstances” within the meaning of section 44(4) above.
Complainant’s Case
The Complainant submits that she was suffering from a stress related illness and adduces in evidence a letter from her treating Medical General Practitioner dated 27 January 2017 which in relevant part states
“She was last seen in October 2016, she was upset due to the WRC hearing and her husband’s illness and needed a month of (medication cited).”
She submits that her husband, who was supporting her during the processing of this complaint, took ill and was no longer able to provide her with the required support.
She submits that the original decision of the Adjudication Officer in this case was issued on 25 October 2016 but was dated the 25th November 2016. On 17 November 2016 the Complainant corresponded with the Adjudication Officer querying the date of the decision. The Adjudication Officer replied by letter dated 18 November correcting the date to 25 October 2016 and alerting the Complainant to the 42 day appeal time limit.
She submits that she did not have the benefit of legal advice and was accordingly disadvantaged in progressing her appeal.
She submits that when taken together the factors constitute exceptional circumstances that prevented her from filing her complaint within the 42-day statutory time limit. She asks the Court to exercise its discretion to extend the time limit beyond the statutory time limit.
Respondent’s Case
The Respondent submits that the circumstances relied on by the Complainant do not amount to exceptional circumstances within the meaning of the Act.
It submits that the G.P.’s letter of 27 January 2017 does not state that the Complainant was “incapable of sending in her notice of appeal”. It submits that the Complainant was capable of communicating with the WRC by way of email dated the 17thNovember 2016 pointing out the mistaken date on the decision. It submits that the Complainant was therefore able to complete a Notice of Appeal at that time.
It submits that whatever ill health her husband was suffering from it did not prevent her from managing her own affairs.
Finally, it submits that the lack of legal representation relied on by the Complainant is without merit. It submits that the legislation and the Labour Court are constructed in a way that facilitates lay litigants conduct their legal disputes with their employers without a requirement for legal representation. It submits that many litigants represent themselves before the Labour Court and that this does not impede the processing of their cases.
The Law
Subsections 3 and 4 of section 44 of the Workplace Relations Act 2015 are relevant in this case. They state
(3) Subject to subsection (4) , a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned.
(4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.
The Act sets a time limit of 42 days for the filing of an appeal against a decision of an Adjudication Officer. However section 44(4) empowers the Court to extend the time limit beyond the 42 days where “if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances”
Accordingly the Court must be satisfied that exceptional circumstances prevented the complainant from serving the notice of appeal within the 42 day statutory time limit.
In this case the Complainant cites a number of circumstances that, taken together, she argues amount to such exceptional circumstances.
The Court has examined the circumstances relied on by the Complainant as listed above.
The Court finds that those circumstances do not explain adequately the delay of 56 days that applies in this case.
The Court finds that the error in the date of the documents did cause confusion in the Complainant’s mind as to when time ran for the purposes of filing an appeal under the Act.
Based on that confusion the Court would allow time to run from the date on which the Complainant received the Adjudication Officer on reply dated 18 November. That would permit an extension of time by some 25 to 30 days. However, it does not extend time by 56 days as applied in this case.
The Court has no evidence before it that explains the additional delay of 26 to 30 days in January 2017. It has no evidence regarding the Complainant’s health in January 2017. The G.P’s note relied on by the Complainant refers to October 2016 and refers to a month’s supply of medication. It makes no reference to the period after the expiry of that month.
The Court has no evidence as to how the Complainant’s husband’s illness impacted on her in December and January 2017. We know for instances that she maintains that the letter to the WRC that is dated 17 November 2017 was written by her husband and not herself. However the nature and extent of her husband’s illness and the effect it had on the Complainant was not adduced in evidence. Accordingly the Court can draw no conclusion on the impact this had on the Complainant.
Based on this reasoning the Court cannot be satisfied that “exceptional circumstances” within the meaning of the Act prevented the notice of appeal being lodged within 42 days of the 20 November, the date on which the Court finds that the Complainant was in receipt of the WRC reply of 18 November 2017. Accordingly, the Court has no basis for extending the statutory time limit as the basis on which it can exercise that discretion has not been established in evidence by the Complainant.
Determination
The Court determines that the Notice of Appeal was filed outside the statutory time limit set out in the Act and no grounds for extending that time limit to the date on which it was belated filed with the Court has been established. The appeal is dismissed. The decision of the Adjudication Officer is affirmed. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
JD______________________
03 August 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.