DWT2516

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038753 (CA-00050487-004)

BACKGROUND:

An Adjudication Officer hearing took place on 8 December 2022 and a Decision was issued on 9 March 2023. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 24 April 2023 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 22 April 2025. The following is the Decision of the Court.

DECISION:

This is an appeal by Anthony Mullins, Watree Stud (the Appellant) against the decision of an Adjudicator Officer (ADJ-00038753 CA-00050487-004, dated 9 March 2023) made in relation to a complaint by Yasir Ali under the Organisation of Working Time Act, 1997.

The Adjudication Officer decided that the complaint was well-founded and ordered the Appellant to pay Yasir Ali compensation of €15,000.

Preliminary Matters

A Notice of Appeal was received by the Labour Court on 24 April 2023 and an amended notice of appeal was received on 27 April 2023. Both appeals were given to the Court outside of the 42-day period for bringing an appeal pursuant to section 44(4) of the Workplace Relations Act 2015 (‘the Act’).

The Appellant applied for an extension of time for late lodgement of the appeal due to exceptional circumstances. 

Rule 54 of the Labour Court Rules 2024 provides as follows:

The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case.

A hearing of the Labour Court was held on 22 April 2025.

By agreement with the parties, the Court decided to hear and decide the preliminary matter in the first instance. It advised the parties if it decided that exceptional circumstances arose to prevent the lodgement of the appeal within the 42-day time limit, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that no exceptional circumstances arose, the appeal would be deemed out of time and statute barred.

Summary Position of the Appellant

The Appellant accepts that the appeal was lodged outside the timeframe set down in the legislation.  He relies on section 44 (3) and seeks an extension of time on medical grounds. The Appellant suffered bronchial pneumonia and had medical evidence that he was unfit and was unable to lodge his appeal in the period from 9 March to 19 April 2023.

He first contacted a solicitor on 20 April 2023, outside the time 42-day time limit, who gave him assistance in lodging the appal. The appeal was lodged to the Court on 24 April and relodged on 27 April 2023.

Counsel referred the Court to Redmond on Dismissal Law (3rd Ed., 2018) (Chapter 25, para. 25.27 and 25.28 page 581) where the meaning of the word “exceptional” was considered in Murphy v Aldi Stores (Ireland) Limited EET043. In that case, the Labour Court, citing the leading judgement of R v Kelly [1999] 2 All ER 13, emphasised that in order to be “exceptional” the circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely are normally encountered. The Labour Court emphasised that the term “exceptional” is an “ordinary familiar English adjective and not a term of art”.

In Kylemore Services Group v Clarke EDA 169 the Labour Court noted that the respondent has suffered prejudice by an extremely short delay in lodging an appeal.

Evidence of Mr Mullins

Mr Mullins gave evidence that he decided to appeal the decision immediately upon receiving the WRC decision dated 9 March 2023. The period for appealing fell during the busiest three-week period of the racing year, with the Cheltenham Festival followed by the Easter festival at Fairyhouse. He put a note in his diary to deal with the matter on 16 April 2023, which he felt was well within time. He had a lot going on at the time, with Cheltenham and the festival at Fairyhouse. The horse stud operates on a 24/7 basis with live animals.

His elderly mother had a sister in England who was unwell, who subsequently died. He needed to get his mother to England to see her. He had experienced health problems during the previous 14-16 months and was hospitalised several times. He then became ill and was very sick with pneumonia. His doctor died and he had a lot of trouble getting another doctor. All of these things happened at the last minute.

He contacted his solicitor on 20 or 21 April 2023 and met with him on 24 April 2023, who told him what to do. When the Labour Court advised him that he had submitted an incomplete appeal form, he resubmitted the document with the advice of his solicitor.

Under cross examination, Mr Mullins could not say if he had attended the Cheltenham Festival that year, he said that he imagined that attended for some of the festival but not all of it. He said that he definitely attended the Fairyhouse meeting. He knew he had trained horses for those meetings. He accepted that he posted on Twitter on the 16 April 2023 at 3:45 am that he had delivered foals that night. He said that had not helped matters with his health.

In reply to questions from the Court, Mr Mullins said that the medical certificate submitted as evidence was dated on a Sunday, as the doctor who provided the certificate was a family friend.

Position of the Respondent

The Labour Court may extend the time limit for lodging an appeal due to “exceptional circumstances”. The phrase “exceptional circumstances” is a high bar to meet in order to get an extension. It has been determined in previous cases that the miscalculation of the time limit, an error by a party’s representative, ignorance of the law and/or postal delays do not amount to an exceptional circumstance.

The Labour Court set out the test as to whether or not exceptional circumstances exist to grant an extension the case of Joyce Fitzsimons Markey -v- Gaelscoil Thulach na nOg [EETO34] where it 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.”

In the same case the Court further stated: -

“…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 that which is regular or routinely or normally encountered.”

The Appellant has not provided any explanation or reason why the time limits should be extended In this case. No exceptional circumstances arise. The Appellant had plenty of time after 9 March 2023 to submit his appeal. He could have issued instructions to his solicitor at any time.

Counsel for the Respondent took issue with the medical certificate submitted in evidence on the basis that the doctor was not in attendance at the hearing to be cross-examined in circumstances where the Appellant’s evidence was that the doctor was a family friend. The certificate was dated on a Sunday and only covers the period from 16 to 21 April 2023.

The burden of proof in establishing the existence of exceptional circumstances rests with the Appellant. The Appellant must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) exist. The Appellant in this case has provided no substantial reason at all as to why the appeal was outside the time required by the Act.

Relevant Law

The making of appeals to the Labour Court is governed by s.44 of the Workplace Relations Act 2015.

Sections 44 (2) (3) and (4) of the Workplace Relations Act 2015 Act provides as follows:

(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.

Deliberations and Findings

In considering an application for an extension of time, the matter for the Court to decide is whether “exceptional circumstances” existed during the period for the giving of notice of an appeal that prevented the lodging of that appeal within the 42-day statutory period. that prevented the lodgement of the appeal within time.

In this case the 42-day period for lodging an appeal to the Court expired on 19 April 2023.

The meaning of the expression "exceptional circumstances" has been considered extensively by this Court and other fora. In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110, the Labour Court held as follows:

“The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act.  That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another.”

The Court went on to state:

“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.”

In Byrne v PJ Quigley Limited [1995] ELR 205 the Employment Appeals Tribunal held that exceptional circumstances were “strong words” and meant “out of the ordinary, unusual, probably quite unusual but not necessarily highly unusual”. The Tribunal further stated that to extend time it must be satisfied that the exceptional circumstances “prevented” lodging the claim within the statutory time limit, and not merely that the exceptional circumstance caused or triggered the claim.

More recently, in McLoughlin v Murray Senior [2022] IEHC 537 Heslin J considered the term “exceptional circumstances” and note that:

“70. The view expressed in the EAT's decision in Byrne v. PJ Quigley Ltd is that exceptional circumstances in the present context must be circumstances which are, at the very least, “quite unusual”. In my view, what is required goes somewhat further and I take this view for the following reasons.

71. The Oireachtas chose not to use, for example, the words good reason in s.44 (4). The bar was set higher. Nor did the Oireachtas employ the term special circumstances in that section. In my view, the bar was set higher still, by the use of the term exceptional.

…whereas the EAT used the term “quite unusual” in Byrne v PJ Quigley Ltd, I believe s. 44 (4) requires even more of the circumstances. In other words, exceptional seems to connote something even greater as regards the circumstances being well out of the ordinary – in short, not merely quite unusual, but highly unusual.”

The burden of proof in establishing the existence of exceptional circumstances rests with the Applicant.

To discharge that burden the Appellant must present clear and cogent evidence to support the contention that “exceptional circumstances” within the meaning of s. 44(4) of the Act of 2015 existed.

The Appellant’s evidence was that he decided to appeal immediately upon receipt of the WRC decision but that he received the WRC decision during the busiest three-week period in the racing calendar so set the matter aside to deal with after 16 April 2023. Thereafter, he was unable to lodge the appeal due to ill-health and was certified unfit in the period from 16 to 21 April 2023 and other personal circumstances when he had to bring his claim.

The Court must first consider if the circumstances relied upon by the Complainant are exceptional, and, if so, whether those circumstances operated so as to prevent the Complainant from lodging his appeal in time.

While the Court accepts the Appellant’s evidence that he was very busy during much of the relevant period for lodging an appeal, the Court does not accept that being busy is an out of the ordinary or a highly unusual occurrence that constitutes “exceptional circumstances” within the meaning of the Act.

Similarly, this Court has regularly noted that the fact of being unwell does not necessarily in and of itself constitute “exceptional circumstances”. For a party to find themselves to be unwell for a period during the statutory time limit may be unfortunate but cannot be said to be out of the ordinary or highly unusual occurrence. In this case, the Appellant’s medical certificate covered the period from 16 to 21 April 2023. His own evidence was that he was delivering foals on 16 April 2023.

The Court notes that the Appellant decided immediately upon receipt of the WRC decision on or about 9 March 2023 to appeal the decision. The Court finds that the Appellant’s illness, as outlined in this case, was not so highly unusual as to fall within the definition of “exceptional circumstances” such as to prevent the lodgement of an appeal on time.

The Appellant subsequently contacted his solicitor on either 20 or 21 April 2023, which was outside the 42-day timeline for lodging the appeal, to seek advice on lodging appeal. No adequate explanation was provided to explain why the Complainant did not lodge an appeal without delay at that point.

An application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Appellant in this case may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay.

An appeal can be lodged at any time during the 42-day statutory time limit set out at Sections 44 (3) of the Act. This Court has regularly noted that legal advice is not required to undertake the filing of an appeal form to the Labour Court. The information provided to parties when they receive a decision from the Workplace Relations Commission makes clear that there is a limit of 42 days within which to appeal the decision and provides guidance on what such an appeal must cover.

The Court does not accept that the circumstances outlined in this case meets the threshold outlined in Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110 whereby the statutory timeframe within which he is permitted to lodge his appeal to the Court under the Act can be enlarged due to “exceptional circumstances”.  

The Court cannot assume a jurisdiction which is not conferred to it. A failure on the part of an Appellant to lodge an appeal of a WRC decision in time deprives this Court of jurisdiction to hear that matter.

Decision

The Court finds that the reasons provided by the Appellant are not sufficient to demonstrate “exceptional circumstances” for the delay in lodging his appeal to the Labour Court. Therefore, the Court finds that the appeal was out of time when it was lodged to the Labour Court and is accordingly statute barred. 

It follows that the Court has no jurisdiction to hear the substantive appeal. In these circumstances, the Court cannot proceed to hear the substantive matter.

Accordingly, the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
8th May 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.