FULL RECOMMENDATION
PARTIES : BOOTS RETAIL DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No CA-00030344-001. The date of the Adjudication Officer’s Decision was 20th March 2020. An appeal of that decision, if one were to be made within the time limit for the making of an appeal of 42 days specified at Section 44(3) of the Workplace Relations Act 2015 ("the 2015 Act"), would require to have been received by the Court no later than 30th April 2020. The Notice of Appeal was received by the Court on 1st May 2020. The Respondent submitted that consequent on the fact that the Appellant had failed to make an appeal within the statutory time limit, the Court had no jurisdiction to hear the within appeal. Notwithstanding the Appellant had made no application to the Court to exercise its jurisdiction under Section 44(4) of the Act to extend the time limit available for the making of the within appeal, the Court, noting in particular that the Appellant was unrepresented before the Court, decided to hear from the parties in relation to the matter of time limits as submitted by the Respondent. In doing so the court made clear to both parties that a decision of the Court ion this matter had the potential to dispose of the entire matter. The Court proceeded to hear the entire matter but advised the parties that the matter of statutory time limits applicable would be decided initially with the Court proceeding to decide the substantive matter only if a decision is made to extend the time limits applicable. Relevant Law in respect of statutory time limit applicable The 2015 Act at Section 44(2) (3) and (4) provides as follows: 44 (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. Conclusion of the Court on the matter of the statutory time limit applicable It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period allowed for the giving of notice of an appeal to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court by the due date. The Court addressed the matter in its decision, albeit in a case under a different statute, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) as follows:- “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.” The reasons advanced by the Appellant for the delay in presenting his appeal were that he had not been made aware of the decision of the Adjudication Officer which was made on 20th March 2020 until 23rd March 2020. In addition, as a pharmacist, he was exceptionally busy at work arising from the occurrence of the global health pandemic. The Respondent submitted that these factors could not be regarded as having the potential to affect the Appellant’s capacity to make his appeal on time. It is for the Applicant to both explain and justify the delay in lodging his appeal and to set out the exceptional circumstances which would support a decision of the Court to extend the time available for the making of the within appeal. The Court does not accept that the fact that the Appellant became aware on 23rd March 2020 of an Adjudication Officer’s decision dated 20th March 2020 is an exceptional or even unusual sequence of events which affected his ability to make his appeal in time. The Court can accept that the global pandemic was and is an exceptional circumstance but has been provided by the Appellant with no basis to understand how that exceptional circumstance prevented him from making his appeal within the statutory time limit applicable. He has submitted that the advent of the pandemic meant that became extremely busy in his employment but has not identified to the Court how this set of circumstances justified a delay in making the within appeal. Decision Having regard to the submission advanced on behalf of the Appellant, the Court is of the view that he has not offered a justifiable excuse for the delay. The appeal therefore fails. The Court so decides.
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