UDD261

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047756 (CA-00058618-005)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 31st of October 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on the 11th of November 2025.

The following is the Decision of the Court.

DECISION:

1Background to the Appeal

 This is an appeal by Jayden & Preston Ltd t/a Parcel King against Adjudication Officer’s Decision ADJ-00047756 CA-00058618-005 given under the Unfair Dismissals Act 1997 (the Act) in a claim by Mr Marcelo Dacosta that he did not receive his rest periods.  The Adjudication Officer held the complaint was well founded and ordered the payment of €4,000 compensation.

The following are linked cases PW/24/162, TE/24/102, WTC/24/113 and WTC/24/114.

In this determination the parties are referred to as they were at first instance.  Jayden & Preston Ltd t/a Parcel King are referred to as ‘the Respondent’ and Mr Marcelo Dacosta as ‘the Complainant’.

The complaint was lodged with the WRC on 1 September 2023, appealed to the Labour Court 31 October 2024, and a hearing was scheduled in Sligo on 11 November 2025.   The cognisable period for the purpose of the Act is 28 February 2023 to 1 September 2023.

When the case was called for hearing the Respondent was not present to move his appeal. No cross appeal had been received by the Court.

Mr O’ Mahony BL for the Complainant, sought to make an application that the Court should proceed to hear the case as the Respondent had not withdrawn his appeal.  He submitted that it was their intention to seek higher awards than had been made at first instance and if the Court did not proceed to hear the appeal, the Complainant would be disadvantaged.

 The Court advised that its practise when the person who lodged the appeal did not turn up was to issue a determination that the appeal had failed for want of prosecution and uphold the decision of the Adjudication Officer.   Mr O’ Mahony BL submitted that once the appeal was lodged the case was open and the Court could proceed to hear the case. The Court invited Mr O’ Mahony BL to make a written submission   on the matter and said it would consider same. A submission was received by the Court on 8 December 2025. The other party was afforded an opportunity to respond to the submission but did not do so.

2 Summary of Complainants submission on the preliminary issue.

Mr O’ Mahony BL noted in the submission that section 44(1) (i) of the Workplace Relations Act provides for the Court to give the parties to the appeal an opportunity to be heard by it and to present any evidence relevant to the appeal. He submitted that there is no requirement that as a prerequisite to holding a hearing the person who lodged the appeal must attend.  In this case the Respondent failed to attend at his own risk.  He submitted that on plain reading of the legislation it is open to and required of the Court to hear a party to an appeal that wishes to make such submission or give such evidence, even if that party is not the party which lodged the appeal. He opened the case of Irish Prison Service v Noel McGree PD/18/4 to the Court in support of his position that the Court retains jurisdiction to hear submission or evidence on quantum from the party present at the appeal whether or not the Appellant attends.  It was submitted that even though the Appellant did not attend to prosecute his appeal, the fact remains that the appeal remains live not having been withdrawn, and as such the Complainant has a right to be heard. While it might be the practise of the Court to dismiss an appeal for failure to prosecute there is no requirement on the Court to do so. In the case of Tansey Transport Ltd v Sauter DWR1417 it was argued by the respondent that once an appeal is commenced by either party it cannot be withdrawn. The Court held that

 “the Respondent could only sustain its argument on this point if it could identify some advantage that would flow to it from a decision by the Court to allow the Complainant to withdraw his appeal. In this case the Court can identify no disadvantage the respondent might suffer if it so allows the Complainant.”  

It was submitted that the current circumstances differ in two significant ways. The first being the Appellant did not withdraw his complaint, it failed to attend the appeal hearing, and the second is that the Complainant has suffered significant disadvantage in having to defend the appeal.

 Mr O’ Mahony BL cited case law whereby although quantum was not appealed the Court retained the right to revisit same and submitted that the Court in this case is entitled to hear submissions and or evidence on quantum on the part of the Complainant.

3 Relevant legislations

Workplace Relations Act 2015  

1. 44 Appeal to Labour Court from decision of adjudication officer

44.Appeal to Labour Court from decision of adjudication officer

(1)

(a)

A party to proceedings under section 41 may 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 under section 41 relating to a complaint under that section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5, the provision of that enactment specified in Part 2 of Schedule 6,

(ii)

in relation to an appeal from a decision of an adjudication officer under section 41 relating to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5, the provisions of that enactment specified in Part 2 of Schedule 6, and

(iii)

in relation to an appeal from a decision of an adjudication officer under section 41 relating 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.

4 Discussion and Decision

The  issues  for the Court to consider are a) in circumstances where the appellant and or a representative of the appellant does not appear before the Court to move the appeal and does not withdraw the appeal does the Court have jurisdiction to hear the  case if requested to do so by the other party, and b) can the Court hear the other party only on the issue of quantum or is it required to consider the case de novo.

  Section 44 of the Act states, a party to a decision may appeal and then goes on to say where a party does so the Court must give the parties to the appeal a chance to be heard. The legislation is silent on what happens if the party who lodges the appeals does not turn up for the Court hearing.   The Labour Court Rules 2024 which are made pursuant to section 20(5) of the Industrial Relations Act 1946 state

39. An appeal may be withdrawn by the Appellant by sending a notice of withdrawal to the Court in writing before the commencement of the hearing of the appeal.
40. An appeal may be withdrawn by the Appellant after the commencement of the hearing of the appeal with leave of the Court.
41. Where the Appellant does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Appellant to appear, the Court may determine that the appeal has not been upheld.
42. Where the Respondent does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Respondent to appear, the Court may proceed to hear the appeal.

The Court notes that it was open to the Complainant to lodge an appeal if he believed the quantum awarded was insufficient, and he chose not to exercise that right.  In respect of the case law put forward by the Complainant’s representative the Court finds that those cases related to different  case circumstances than those that pertained in this case, in that either the case had commenced and the permission of the Court was required, or in the case of Irish Prison Service v Noel Mc Gee PDD221 both sides had appealed the WRC decision to the Court and the Complainant was seeking to withdraw the original complaint where a decision of an Adjudication Officer had already issued and both sides sought the Court to set aside that decision. In the case to hand there was only one appeal, and the Appellant did not attend Court.

 Noting that no caselaw that was on point was opened to the Court and the fact that the Complainant could have lodged an appeal if he was unhappy with the quantum awarded at first instance, the Court is exercising its discretion as provided for in rule 41, to determine that the appeal has not been upheld.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
13 February 2026	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.