SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997
MASTER SUPERFOODS LIMITED
(REPRESENTED BY GALLENALLIANCE SOLICITORS)
- AND -
MR IRFAN AHMED MALIK
(REPRESENTED BY THOMAS MURTAGH)
Chairman: Mr Geraghty
Employer Member: Ms Doyle
Worker Member: Ms Treacy
1. An appeal of an Adjudication Officer's Decision No. ADJ-00013345.
2. The Respondent appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 25 July 2019. The following is the Decision of the Court.
The matter for consideration by the Court was whether the Court should exercise its discretion under s. 44(4) of the Workplace Relations Act 2015 to hear an appeal from Master Superfoods, referred to hereafter, as in the initial hearing, as ‘the Respondent’, against a decision of an Adjudication Officer, (AO) of the Workplace Relations Commission, (WRC), that the Respondent had breached the rights of Mr. Malik, ‘the Complainant’, under the Organisation of Working Time Act, despite the fact that the appeal was received more than 42 days after the AO’s decision.
The AO issued a decision on 9 November 2018. The appeal was submitted on 4 March 2019.
During the timeframe to appeal the WRC decision, the owner of the Respondent company, Mr. Khalid, had poor health and was required to undergo an intensive heart operation which required hospitalisation for one week.
The letter from Mr. Khailid’s consultant, dated 26 March 2019, (provided to the Court), makes clear that his health had worsened in 2018, requiring a complex procedure. This constitutes ‘exceptional circumstances’ as set out in s. 44(4) of the Workplace Relations Act 2015 to warrant an extension of the period allowed for an appeal.
The Labour Court inThulach Na Nog v Joyce Fitzsimons-Markey (EET 0354)set out that, in considering applications such as in the instant case, the circumstances relied upon must be exceptional and such that the applicant was prevented from lodging a claim on time. This case met both requirements.
The original WRC hearing in June 2018 was postponed because Mr. Khalid was to attend a medical procedure in the UK. He then failed to turn up or be represented at the second scheduled hearing.
When the AO decision was issued, there was seven weeks to lodge an appeal. The evidence submitted in support of the grant of an extension refers to one week in which Mr. Khalid was in hospital, meaning that he had 6 weeks available to him to lodge an appeal.
The Complainant sought enforcement of the AO decision in the District Court in March 2019. The proceedings were adjourned pending the outcome of this appeal.
Discussion with the Parties
Mr. Khalid stated directly to the Court that his Accountant had, on his instruction, e-mailed the Court regarding his condition. When advised that this was not the case, he amended his comment to state that the e-mails had, in fact, been sent to the WRC.
It was put to the Respondent’s representative by the Court that the medical evidence produced suggested that Mr. Khalid’s medical problems were ongoing and, that being so, he was asked how the Respondent was able to submit any appeal? He responded by stating that Mr. Khalid’s condition was worse at the time in question.
The Applicable Law
Workplace Relations Act 2015
Appeal to Labour Court from decision of adjudication officer
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 inPart 1or2ofSchedule 5, the provision of that enactment specified inPart 2ofSchedule 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 inPart 3ofSchedule 5, the provision of that enactment specified inPart 2ofSchedule 6and
(iii) in relation to an appeal from a decision of an adjudication officer undersection 41relating to a complaint undersubsection (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 tosubsection (4), a notice undersubsection (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 undersubsection (2)may be given to it after the expiration of the period specified insubsection (3)if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.
(5) A copy of a notice undersubsection (2)shall be given by the Labour Court to the other party concerned as soon as may be after the receipt of the notice by the Labour Court.
This type of application is considered by the Court on a reasonably regular basis. As the Court noted in the case ofGaelscoil Thulach na nOg v Joyce Fitzsimons Markey (EET034),the nature of such applications requires that each case must be decided on its own circumstances and a decision in one case is no more than a rough guide to decisions in others. However, that case itself, (cited also inKylemore Services Group/Home Fare Services Ltd v. Terrie Clarke (DEC-E2015-160),considered the application of the test to determine whether ‘exceptional circumstances’ apply. The Court stated;
“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 (seeR v Kelly 2 All ER 13 at 20 per Lord Bingham CJ.)”
It is clear to the Court from his own statement that Mr. Khalid was in a position to give instructions regarding his appeal. It is equally clear that an appeal was lodged outside of the 42 day limit, although Mr. Khalid’s health difficulties are ongoing.
In cases of this type, an applicant seeking to be treated as an exceptional case warranting a time extension for lodging an appeal must both explain the delay and offer a justifiable reason for it.
Having heard the submissions on behalf of the Respondent, the Court is of the view that no justifiable excuse has been offered for the delay.
The Appeal, therefore, fails.
The Court so determines.
Signed on behalf of the Labour Court
1 August, 2019.Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.