SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
MCNELIS HOSPITALITY BARS LTD
(REPRESENTED BY MS LORRAINE LALLY)
- AND -
MR STEPHEN O'DOWD
(REPRESENTED BY PLUNKET KIRWAN & COMPANY SOLICITORS)
1.Appeal of Adjudication Officer Decision No.ADJ-00017078 CA-00021986-001
The Adjudication Officer’s Decision issued on 19thJune 2019. The within appeal was received by the Court on 6thAugust 2019.
Preliminary Issue - Time Limits.
The decision of the Adjudication Officer issued on 19thJune 2019. The within appeal, were it to be received in time, would have to have been received by or on 30thJuly 2019. The appeal was received on 6thAugust 2019.
In the interest of efficiency of process, and in view of the fact that this matter had the potential to be determinative of the appeal in its entirety, the Court set out at its hearing that it would determine the matter of time limits for the making of the within appeal as a preliminary matter and only thereafter would the Court, if required, proceed to hear the substantive matter. Neither party raised any objection to this approach.
The Court had identified to both parties in writing on 13thAugust 2019 that an application to extend time for the making the within appeal by the Appellant should be supported in a written submission. In the event, the Appellant’s submission which was received in September 2019 did not address the matter and the responding submission of the Claimant, also received in September 2019, made no reference to the matter. In those circumstances the Court gave the parties an opportunity to make an oral submission on the matter at the hearing.
The Workplace Relations Act (the Act of 2015) at Section 44(3) and 44(4) which, by operation of Section 8A(2) of the Act, applies to a decision of an Adjudication Officer given in respect of a claim for redress under the Act, provides as follows
The Appellant submitted that the appeal had been made after the time period allowed by the Act of 2015 through error and because a bank holiday had fallen in the period of time allowed for the making of an appeal of the decision made on 19thJune 2019. The Appellant submitted that these circumstances amounted to exceptional circumstances within the meaning of the Act at Section 44(4).
Summary of the Claimant’s Position on the Preliminary Issue
The Claimant submitted that the appeal had been made out of time and should not be allowed.
Conclusions of the Court
The Court has given careful consideration to the oral submissions of the parties.
The Court notes that no public holiday occurred in the period between 19thJune 2019 and 30thJuly 2019. That being the case, the Appellant’s submission on the preliminary matter rests upon the contention that an error in calculation or otherwise represents exceptional circumstances within the meaning of the Act of 2015.
The Court addressed the issue of ‘exceptional circumstances’ in its decision, albeit in a case under a different statute, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) as follows:-
In the within case the Respondent contends that the error of the Appellant’s legal adviser satisfies the requirement under the Act at Section 44(4).
The Court is of the view that the Appellant has not established that exceptional circumstances existed in this case such as to have prevented the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer.
The Court therefore cannot find that time should be extended for the making of the within appeal.
For the reasons set out above, the Court finds that the within appeal is statute-barred and therefore must fail. The decision of the Adjudication Officer is affirmed.
The Court so Determines.
Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary.