MND265

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00040925 (CA-00052063-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 November 2024 in accordance with Section 44 of the Workplace Relations Act, 2015.

A Labour Court hearing took place on 5 May 2026

The following is the Decision of the Court:

DECISION:

1. This is an appeal by Anniela Barboza against a Decision of an Adjudication Officer (ADJ-00040925/CA-00052063-002) made under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 in a complaint against Cpl Solutions Ltd Covalen. The Adjudication Officer’s decision is dated 26 May 2023. This appeal is linked with appeal no. TE/24/116 and no. UD/24/151.
2. For ease, the parties are referred to in the same way as at first instance. Hence, Anniela Barboza is referred to as “the Complainant” and Cpl Solutions Ltd Covalen as “the Respondent”.
3. The Complainant lodged a Notice of Appeal to the Labour Court on 4 November 2024, which was some 17 months after the Adjudication Officer’s decision issued and, therefore, outside of the 42-day period for bringing an appeal provided for in section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’).
4. The Respondent submitted that the matter should be dealt with by way of written submissions only and should not be listed for oral hearing but in the absence of agreement by the Complainant the Court proceeded to full hearing.
5. A hearing of the Court was held on 5 May 2026 in Dublin. The Complainant was accompanied by her partner at the hearing. The Respondent was represented by Tiernan Lowey BL, instructed by Simmons & Simmons solicitors. The Court heard submissions from both parties, and the Complainant gave evidence under oath, in respect of the time limit point. The Respondent called no witnesses.

Submission of the Complainant

6. The Complainant submitted that exceptional circumstances arose which gave rise to a delay in lodging her appeal to the Labour Court.
7. On the appeal form, submitted on 4 November 2024, the Complainant indicated her intention to apply for an extension of time for late lodgement of the appeal due to “exceptional circumstances”. The Complainant submitted an undated letter, together with her appeal form, setting out multiple circumstances which she maintained led to her failure to submit her appeal within the statutory timeframe.
8. The Complainant made written submissions to the Court on 28 November 2024 which purported to address the exceptional circumstances which prevented her lodging her appeal within the statutory time limit including that she lacked an understanding of her statutory rights and timelines and had no access to legal representation.
9. In advance of the hearing, by email dated 22 April 2026, the Complainant informed the Court that she would be receiving documentation from her GP regarding her medical history and its impact on her submission delays and intended to provide that in the week before the hearing. In the event, this documentation was not provided prior to the hearing.
10. At the hearing the Complainant made an application to submit a further 257 pages of documentation to support her submission that there were exceptional circumstances which prevented her lodging her appeal within the statutory time limit.
11. The Respondent objected to the late submission of this documentation, citing prejudice, inability to verify material authored by a third party and questioning the probative value of the material.
12. In circumstances where the Complainant could not identify that any of the documentation referred to medical evidence or other factors which prevented her lodging her appeal within the 42-day period after the date of the Adjudication Officer’s decision, the Court, having taken some time to consider the application, declined to admit the documentation on the day of the hearing.
13. The Complainant’s evidence was that she was prevented from lodging her appeal in time, in circumstances where: she had been homeless (from December 2022 to April 2023); given birth to her son 2-3 weeks before the WRC decision issued on 26 May 2023 (per her initial letter accompanying her appeal) but where in evidence the birthdate of her son was given as 29 July 2023; developed pre-eclampsia in May 2023 giving rise to a diagnosis of a thyroid condition some years later; been subject to investigation by the Department of Social Protection (from April to June 2023); been without electricity in her home (August to November 2023); she had to attend court hearings initiated by Tusla regarding the care of her son; she had not been in possession of the hard copy decision of the WRC (while acknowledging she had received it by email) until she located it in November 2024 prompting her to initiate the appeal; she suffered with her mental health; and she had lost documents in circumstances of eviction. The Complainant described a chaotic life situation with “a series of serious and overlapping personal crises” in respect of which she felt ashamed.
14. The Complainant accepted that she had sent an email to the Respondent’s solicitor on 29 May 2023, following receipt by her of the WRC decision the previous day. In that email the Complainant indicated an intention to appeal the WRC decision and she cautioned the Respondent about the publicity which would arise in the context of said appeal and indicated a willingness to have a mediation meeting. She further accepted, having been given time by the Court to consider emails provided to her (but not to the Court) by the Respondent, that she had engaged with the Respondent in respect of a settlement of the matters the subject of the within appeal via numerous emails and telephone calls, between 29 May 2023 and 19 July 2023.

Summary Position of the Respondent

15. The Respondent submitted that the Complainant had failed to provide any evidence of exceptional circumstances explaining her failure to meet the mandated statutory time frame for the making of an appeal from a decision of an Adjudication Officer of the WRC. It submitted that the Court should also have regard to the prospect of success of the Complainant’s claim in considering whether to extend time where it submitted that the Complainant’s substantive case was frivolous and vexatious and bound to fail in circumstances including inter alia where the Complainant had not lodged her original complaints to the WRC within the six-month statutory time period and did not have the requisite service to have standing under the Unfair Dismissals Act.

Relevant Law

16. Sections 44 (2), (3) and (4) of the Workplace Relations Act 2015 Act provide 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.

17. Rule 54 of the Labour Court Rules 2024 provides that: -

“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”.

18. The Court decided, with the agreement of the parties, that it would hear and decide the preliminary matter in relation to time limits for the appeal in the first instance. It advised the parties that if it decided that exceptional circumstances arose to prevent the lodging of an appeal within time, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that the appeal was lodged outside the time limits set down in the Act, a decision would issue to that effect.

Deliberations

19. The matter for consideration by the Court is whether “exceptional circumstances” arose during the 42-day period for giving a notice of appeal to the Court such that they prevented the lodging of the appeal on or before the expiry of the period, which in this case was 6 July 2023.
20. 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 nÓg [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.”

21. 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.”

22. 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.
23. In McLoughlin v Murray Senior [2022] IEHC 537 Heslin J considered the term “exceptional circumstances” and noted 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.
72. …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.”
73. The burden of proof in establishing the existence of “exceptional circumstances” rests with the Complainant.
74. To grant an extension of time, there must be a causal link between the circumstances cited and the delay in lodging the appeal to the Court. The Court must be satisfied, as a matter of probability, that had those circumstances not been present the Complainant would have lodged the appeal in time.
75. The Complainant made multiple submissions regarding the exceptional circumstances which prevented her lodging her claim within the statutory time limit. In her initial letter accompanying her appeal, the issues identified related to time periods after the expiration of the 42-day statutory time limit or conflicted with the Complainant’s later sworn evidence.
76. The Complainant’s written submissions to the Court, on 28 November 2024, for the most part addressed reasons for the late initiation of the WRC complaint outside the six-month time limit provided for in section 41(6) of the 2015 Act, and not the provisions of section 44(4) of the 2015 Act, or referred to “exceptional circumstances” arising outside of the expiration of the 42-day statutory time limit.
77. While the Complainant’s evidence detailed very challenging circumstances, for her and her family, the issues raised related to the period before the WRC decision was issued and for a number of years after the expiration of the statutory appeal period. There was no evidence given of factors which prevented the lodging of the appeal during the 42-day statutory timeframe. To the contrary there was evidence that the Complainant had formed the intention to appeal, which she communicated to the Respondent within days of the WRC decision being issued.
78. The Complainant did not provide any explanation or basis for why she had not, during the period she was engaging with the Respondent (which began on 29 May 2023 and continued into July 2023), lodged her appeal to the Labour Court.
79. In this case, a Notice of Appeal was lodged to the Labour Court on 4 November 2024, some 17 months after the Adjudication Officer issued his decision. For the Court to extend time, the Complainant must establish the existence of exceptional circumstances that explain the delay and provide a justifiable excuse for the delay. The Complainant failed to do this.
80. The Court finds that the Complainant has not evidenced any exceptional circumstances during the statutory time period such that she was prevented from lodging her appeal in time.
81. In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains the delay in lodging an appeal to the Labour Court outside the statutory time limit. In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case.  The Complainant does not meet the established threshold whereby the statutory timeframe within which she is permitted to appeal the Adjudication Officer’s decision can be enlarged due to “exceptional circumstances”.
82. A failure on the part of a Complainant to lodge an appeal on time deprives this Court of jurisdiction to hear the claim. As a result, the Court finds that it has no jurisdiction to hear the appeal.

Decision

34. The Court decides that the existence of “exceptional circumstances” has not been established by the Complainant to allow the extension of the statutory timeframe for giving a notice of appeal to the Court.
35. It follows that the Court has no jurisdiction to hear the appeal.
36. The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
FC	______________________
18/05/2026	Deputy Chairman

NOTE

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