RPD2424

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033328 (CA-00049657-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 21 February 2024 in accordance with the Redundancy Payments Acts 1967 to 2014.

A Labour Court hearing took place on 30 October 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Mary Collins against the decision of an Adjudicator Officer (ADJ-00033328, CA-00049657-001, dated 8 January 2024) made in relation to a complaint under the Redundancy Payments Acts, 1967.

The Adjudication Officer deemed that in circumstances whereby it was determined in a linked case that the dismissal of the Complainant was unfair for the purposes of the Unfair Dismissals Acts, her appeal under the Redundancy Payments Acts, 1967 was unsuccessful.

A hearing of the Labour Court was held on 30 October 2024 in Sligo. The Respondent did not attend the hearing.

Preliminary Matters

Preliminary matters arise in this appeal regarding whether or not a valid appeal was lodged to the Court within the statutory time limits and, if not, whether exceptional circumstances arose preventing the lodgement of the appeal such that the statutory time limits may be extended.

Position of the Appellant

The Appellant’s representative lodged an appeal by email using a proforma Employment Rights Appeal Form to the Court on 14 February 2024. The statutory deadline to submit the appeal to the Labour Court was 18 February 2024.

The appeal was lodged in time on 14 February 2024 and an acknowledgement of receipt received by email from the Labour Court on the same day.  A further email was sent to Appellant’s representative by the Labour Court on 14 February 2024 requesting confirmation of the Respondent's address which was inadvertently left out of the appeal form. Unfortunately, the Appellant’s representative did not see this email until after the deadline date.

A completed appeal form was submitted to the Labour Court by email on 21 February 2024.

The Appellant’s representative submits that the appeal submitted by way of email dated 14 February 2024 was valid and within time. There was nothing to the contrary indicated in the emails received from the Labour Court on 14 February 2024 following acknowledgement of receipt of the appeal. Importantly, nowhere in the email received on the 14 February 2024 did it state that the appeal was deemed invalid for not including the Respondent address.

The Appellant’s representative submits that he was very conscious to ensure that the appeal was submitted in time. One week before submitting the appeal on 14 February 2024 he contacted the Adjudication Service of the WRC to confirm the deadline for the appeal. The Appellant’s representative responded to a further email received from the Labour Court on 22 February 2024 requesting a phone number for the Respondent.

ln the circumstances, it would be unjust and unfair and against all principles of natural justice not to accept that the appeal was submitted in time and is valid.

Should the Court find that the appeal was not made in time, an application to extend the time limit is requested for the reasons outlined herein.

Position of the Respondent

The Respondent did not attend the hearing.

Relevant Law and Rules – Preliminary Matter

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 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.

The relevant rules are contained in the Labour Court Rules 2024, which the Court is authorised to make under s.20(5) of the Industrial Relations Act 1946, and which state as follows: -

23. The appeal shall be initiated by notice in writing, including by email, or via the Labour Court portal delivered to the Court within 42 days from the date of the decision being appealed. In accordance with the provisions of the Interpretation Act 2005 the date of the decision is day 1 of the 42-day period. Appeals sent by post can be given to the Court in the ordinary course of the Court’s business and the date of receipt by the Court will be recorded using a date stamp manually applied on the day the appeal is received. Appeals submitted by email or via the Labour Court portal can be made up to 12 midnight on the 42nd day and the date of receipt will be the date and time automatically recorded on the email/Labour Court portal.
24. If the appeal is not made within the requisite 42 days, then application should be made to the Court in accordance with Section 44(4) of the 2015 Act, to extend time for bringing an appeal and giving the grounds upon which, the extension is sought. The grounds for any such extension of time should form part of the written submission of the Appellant. Such an extension of time will only be granted in exceptional circumstances.
25. The notice of appeal shall be completed in full and accompanied by a copy of the decision of the Adjudication Officer to which the appeal relates.
26. The notice referred to at Rule 23 & 25 above shall be given on a form provided by the Court for that purpose.
27. Where the appeal is made via the Labour Court portal the Appellant is required to provide the same information as requested in the appeal form.
    
    

Deliberations and Findings

Was a valid appeal lodged in time?

The deadline to submit the within appeal to the Labour Court was 18 February 2024, having regard to the statutory timeframe set out at s.44(2) of the Workplace Relations Act.

A notice of appeal was emailed to the Labour Court on 14 February 2024 at 12:13 by the Appellant’s representative. In that email the Appellant’s representative requested:

“Please acknowledge receipt and confirm Appeal has been received within the prescribed time. I look forward to hearing from you by return”.

The Appellant’s representative received an automated email by reply from the Labour Court which stated:

“The Labour Court acknowledges receipt of your email and an Officer of the Court will respond as soon as possible.

If your email relates to general queries/postponement requests, it should be forwarded to info@labourcourt.ie .If your email relates to the provision of soft copy submissions, it should be forwarded to ESubmissions@labourcourt.ie”.

A short while later at 13:02 a member of the Labour Court secretariat emailed the Appellant’s representative as follows:

“I refer to your documentation purporting to be an appeal and which was received on 14/02/2023.

It would appear to the Court that you have not provided full details on the Appeals Form.

. Respondents address

As the matter cannot be progressed without you advising the Court of the information outlined above, the documentation you submitted is being returned to you. A copy of this documentation is not being retained in the Labour Court”.

The combined effect of s.44(2) of the Act and the relevant provisions of the Labour Court Rules is to prescribe what is needed to validly initiate an appeal to the Court. Conversely, a notice sent to the Court that does not comply with these requirements cannot constitute a valid initiation of an appeal.

In this case, while the Respondent name was included on the appeal form lodged on 14 February 2024, no address for the Respondent was provided.

It is necessary to provide the respondent’s name and contact details to inform that person that an appeal is in being. The requirement to identify the respondent to an appeal and provide an address for service of documents is not a matter of small importance and the failure to do so renders a notice of appeal invalid.

On reviewing the correspondence between the parties, it is clear that the Appellant’s representative was informed that the document submitted by him could not be processed and was returned to him on the same day. The fact that the Labour Court sent back the purported appeal and did not keep a copy very clearly points to the fact that there was no acceptance of the document as an appeal. It was never processed in the Labour Court system and the Appellant was notified of this on the same day.

Having regard to the facts as presented, the Court finds that the omission of an address for the Respondent to the appeal renders the appeal made on 14 February invalid and therefore, out of time.

Application for an extension of time.

The Appellant’s representative submitted that should the Court find that the appeal was not made in time, an application to extend the time limit should be granted as it would be unjust and unfair and against all principles of natural justice not to accept that the appeal.

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.

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 Applicant 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 that prevented the lodgement of the appeal within time.

The Applicant’s representative was informed shortly after emailing the Court on 14 February 2024 that the document submitted by him could not be processed without the details requestedand was returned to him on the same day.

A completed form was submitted seven days later on 21 February 2024, which was three days after the deadline for submitting the appeal.

Having regard to s.44(4) of the Workplace relations Act, 2015 and the established case law, the Appellant must explain what “highly unusual” circumstances arose that delayed the lodging of the appeal. No evidence was submitted by the Appellant’s representative of any effort made to lodge the appeal within the 42-day period. No explanation was given for the delay in submitting the completed form three days after the deadline date of 18 February 2024. 

As a result, the Court finds that the existence of “exceptional circumstances” has not been established by the Applicant.  The Court concludes that no “exceptional circumstances” applied that prevented the Appellant from giving notice of appeal within the time set out in the Act.

While the Court has sympathy for the predicament that the Appellant finds herself in, the Labour Court is a creature of statute, and its powers and duties are derived solely from statute.

Determination

Rule 54 of the Labour Court Rules 20224 states 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.”

In this case, the Court finds that the existence of “exceptional circumstances” has not been established by the Applicant. Therefore, the Court finds that the within claim was out of time when it was given to the Labour Court and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

The appeal is rejected, and the Decision of the Adjudication Officer varied accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
2nd January 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.