SECTION 19, EUROPEAN COMMUNITIES (ROAD TRANSPORT) (ORGANISATION OF WORKING TIME OF PERSONS PERFORMING MOBILE ROAD TRANSPORT ACTIVITIES) REGULATIONS, 2012 - 2015
- AND -
(REPRESENTED BY COUGHLAN WHITE SOLS)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Treacy
1. Appeal Of Adjudication Officer Decision No(s). ADJ-00015957
2. The Employee referred his case to the Labour Court in accordance with Section 19 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2012-S.I. No.36.2012 on 4 July 2019. A Labour Court hearing took place on 18 October 2019. The following is the Determination of the Court:
This is an appeal by Mr Jack Healy of an Adjudication Officer’s Decision ADj-00015957, CA-00019519-001, 004 and 005 under Regulation 19 of the European Communities (Road Transport) Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, S.I. 36 of 2012 (the Regulations) in complaints made against his former employer, Citibus Limited.
The Adjudication Officer held that the complaints were not well founded.
For ease of reference, in this Determination, the parties will be referred to as they were at first instance, Mr Jack Healy will be referred to as “the Complainant” and Citibus Limited will be referred to as “the Respondent”.
The Decision of the Adjudication Officer was issued on 23rd May 2019. The appeal under the Regulations was presented to the Labour Court on 4th July 2019, a day outside the statutory time limit provided for in Section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’). The Complainant is seeking, nevertheless, to have the appeal admitted – in accordance with Section 44(4) of the 2015 Act – and asserts that his appeal was made outside of time ‘due to the existence of exceptional circumstances’.
Preliminary Issue – Time Limit and Application for an Extension of Time
The Complainant submitted that there were exceptional circumstances for the late presentation of his appeal to the Court. He said that these related to his involvement in extensive family legal matters, commitments to meet deadlines imposed by a Local Authority and other matters. He said that these issues were extensive and exhausting and took up all of his time outside of his work and responsibilities. He said that his busy life, his commitment to a range of activities which occurred in the forty-two-day period between May 23rd and July 3rd 2019, prevented him from submitting his appeal on time.
The Complainant told the Court that he had contacted a Solicitor who referred the matter to a Barrister, and it was the latter who highlighted the deadline date to him. The Complainant was not clear on exactly when the Barrister informed him, he said it could have been just before or immediately after the deadline date, however, his appeal was not submitted until 4th July 2019, which was out of time.
Mr Conor O’Toole, Solicitor, Coughlan White Solicitors, on behalf of the Respondent rejected the application and stated that the Complainant’s busy life did not amount to ‘exceptional circumstances’ within the meaning of Section 44(4) of the 2015 Act. He proceeded to refer to a number of previous decisions of this Court in which the Court considered the meaning of ‘exceptional circumstances’ in the context of an application to permit an appellant an extension of time to lodge an appeal,viz,Galway and Roscommon ETBUDD1624, where the Court found as follows: -
- “While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay.”
Gaelscoil Thulach na nOg and Joyce Fitzimons-MarkeyEET034, where the Court found:-
- “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.”
And inKildare & Wicklow Education and Training Board v Teresa IgoeDWT1671, the Court held: -
- “The Court cannot accept that the illness of the Appellant for a period, any miscalculation (by one day) by the Appellant’s representative of the deadline for the giving of notice of appeal or any cancellation of a meeting with Counsel could be construed as exceptional. Even if these events were to be regarded separately or together as exceptional the Court cannot accept in the circumstances that they were of such significance as to prevent the giving of notice of the Appellant’s appeal by 2ndMay 2016.”
Similar to these authorities relied upon, Mr O’Toole submitted that there were no exceptional circumstances presented by the Complainant which prevented his appeal from being submitted in time and therefore, the Court should apply the same reasoning in this case and dismiss the Complainant’s application.
Section 44 of the 2015 Act
Subsections (2) to (4) of Section 44 of the 2015 Act provides:
- “(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.”
It was not in dispute that the appeal was lodged 43 days from the date of the Adjudication Officer’s Decision. The appeal was not, therefore, brought within the relevant statutory time limit as decreed by Section 44(3) of the 2015 Act.
The Court fully accepts that the Complainant had pressing family legal matters etc., which occupied his time and attention, however, he chose to prioritised his commitments to the exclusion of his appeal of the Adjudication Officer’s Decisions. He had the benefit of legal advice in an around the appeal period. He was mindful of the necessity to submit his appeal, he had made enquiries of his legal advisers, who had contacted a Barrister for advice on the matter, and the latter advised him that he was already late. In such circumstances, the Court must conclude that no exceptional circumstances prevented the Complainant from lodging his appeal within the time set out in the Act.
The Court determines that the within appeal was made outside of the time limit set down at Section 44(3) of the 2015 Act and consequently the Court does not have jurisdiction to hear the appeal.
The Court so Determines.
Signed on behalf of the Labour Court
29 October 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.