FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 TERMS OF EMPLOYMENT (INFORMATION) ACTS 1994 TO 2014 PARTIES: THE Q CAFÉ COMPANY LIMITED (REPRESENTED BY MSS) AND ANDRZEJ KARKUS DIVISION:
Appeal of Adjudication Officer Decision No's: ADJ-00037198 (CA-00048545-001)
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 20 November 2023 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. Labour Court hearing took place in a virtual setting on 1 February 2024. The following is the Decision of the Court: DECISION: Background to the Appeal This is an appeal by Mr Andrzej Karkus (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00037198, dated 4 October 2023) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received in the Court on 20 November 2023. The Court heard the appeal in a virtual courtroom on 1 February 2024.
Preliminary Issue The latest date on which the Complainant’s appeal under the Act should have been received in the Court is 14 November 2023. As it was not received until 20 November 2023 it was not referred within the statutory forty-two-day period. It follows that the Complainant must demonstrate that there were ‘exceptional circumstances’ that explain and justify his delay in referring his appeal.
Submissions The Complainant was very apologetic to the Court for his delay in referring the within appeal. He said he hadn’t been ready to send in the appeal for some time and then he realised that time was running out and that he was late. Mr Hegarty, Representative for the Respondent, noted the Complainant’s honesty but submitted that he had not demonstrated the existence of exceptional circumstances to explain his delay.
The Law Subsections (2) to (4) of Section 44 of the Workplace Relations Act 2015 provide: “(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 meaning to be given to the words ‘exceptional circumstances’ was considered by this Court when construing identical words in the Employment Equality Act 1998 (prior to its amendment in 2004) in Fitzsimons-Markey v Gaelscoil Thulach na nÓg [2004] E.L.R. 110). The Court, in its Determination in that case, said that 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 Court in Fitzsimons-Markey outlined the correct approach that should be taken to determine, whether in any particular case, the circumstances relied on by an appellant to extend time constitute ‘exceptional circumstances’: “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 [1999] 2 All ER 13 at 20 per Lord Bingham CJ.)” The Court has applied the same approach when construing the words ‘exceptional circumstances’ as they are used in section 44(4) of the Workplace Relations Act 2015. See, for example, Luiz v Zoric (TED1712), Yeria Limited v Adebbite (MND176) and Gumaraes Hanlon v Cavtat Taverns 3 T/A Urban Eats (EDA20/2023)
Discussion and Decision The Court – having regard to its established jurisprudence in relation to the meaning to be given to the words ‘exceptional circumstances’ in section 44(4) of the Workplace Relations Act – finds that the explanation given by the Complainant is insufficient to permit the Court to extend time for bringing the within appeal. The Court, therefore, declines jurisdiction to hear the Complainant’s substantive appeal. The decision of the Adjudication Officer, accordingly, stands.
The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary. |