FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BLANCHARDSTOWN INSTITUTE OF TECHNOLOGY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal Of Recommendation Of A Rights Commissioner R-056793-Ir-07/Sr
BACKGROUND:
2. The matter before the Court concerns an appeal of a Rights Commissioner's Recommendation on behalf of the Company. At the hearing a preliminary issue was raised. The Union contends that the appeal by the Company was received by the Court outside the permitted time for such an appeal. It is the Company's position that its decision to appeal the Recommendation to the Labour Court was posted on 23rd July, 2008 and that it should have been received in the Labour Court on 24th July, 2008, the deadline for receipt of the appeal. The Labour Court did not receive the appeal form until the 25th July, 2008. The Company argue that the Court should have received the Appeal on the 24th July and that it should not be disadvantaged because the Court did not process the form until the 25th July.
A Labour Court hearing took place on the 29th May, 2009
UNION'S ARGUMENTS:
3. 1 There is no basis for believing that the appeal form was recieved the day after posting. Statistically only 72% of post is next day delivery. It could have been faxed or sent by courier.
2 The Court operates under certain legislation and is obliged to apply the legislation in this case.
COMPANY'S ARGUMENTS:
1 The Company refers to the Labour Court hearing,Carlton Airport Hotel and Martin Patterson(DWT0844). This appeal was allowed despite being 3 months outside the timeframe for appeal.
2 If the Company is denied the appeal, the appellant would effectively be denied access to the Courts which is a breach of its constitutional rights by no fault of its own.
DECISION:
The Court has carefully considered the submissions made to it by the parties to the dispute, and has decided to deal in teh first instance with the preliminary matter raised.
The Rights Commissioner issued his recommendation pursuant to the Industrial Relations Acts 1946-2004 on 13th June 2008. This in not in issue between the parties.
Section 36(2) of the Industrial Relations Act, 1990 states“An appeal to the Court against the recommendation of a Rights Commissioner shall not be considered unless it is notified in writing to the Court within six weeks of the making of the recommendation”.
Section 18(h) of the Interpretation Act, 2005 states “where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period”.
On that basis, the six-week period for appeal of the instant case began on 13th June 2008 and ended at midnight on 24th July 2008.
The appeal was received in the Labour Court on 25th June 2008, the 43rd day. The Employer argues that the appeal was submitted within the allowed time frame. It was sent on 23rd July 2008 and would/should have been received by the Labour Court on 24th July 2008. The employer should not be disadvantaged because the appeal was not processed by the Court until 25th July 2008.
The Employer also argues that:
(a) The appeal was “notified in writing” to the Court (as opposed to received by the Court) within the time limit.
(b) In the case of “Carlton Airport Hotel v Martin Patterson “, Labour Court Determination No. DWT0844, an appeal was allowed for hearing by the Labour Court despite being 3 months out of time.
(c) In the High Court Case of “Morris v Power Security Ltd” [1990] 1IR, it was found that: -
- “The Statue of Limitations time ceases to run when the proceedings are issued and not when they are served. In the circumstances I am satisfied that the appropriate step to be taken with the six-week time limit is the issue of the notice of the application to the Court”
In the view of the Employer, if the appeal is disallowed, the appellant Employer would effectively be denied access to the Courts, a breach of its constitutional rights and its right to natural and constitutional justice pursuant to Article 40.3.1.
The Union argues that:-
(a) The Court must have regard to Section 18 (h) of the Interpretation Act, 2005 which demonstrates that the appeal is out of time.
(b) The quoted case of “Morris v Power Security “ refers to the invocation of the jurisdiction of the Circuit Court or an appeal from the Employment Appeals Tribunal, under the provisions of the Unfair Dismissals Act, 1977 where the wording differs from that of the Industrial Relations Legislation the difference being the date of communication of the decision in the Unfair Dismissals Acts as opposed to the date of making the recommendation in the Industrial Relations Acts.
- Neither is there any reference to “service of notice” in the Industrial Relations Acts.
- “the expression ‘shall be lodged in the Court’ can only have one meaning. It can only mean that the document actually reached the Labour Court in the ordinary course of its everyday business. If therefore the notice was posted to the Labour Court there is no basis on which the expression “lodged in the Court” could be interpreted as meaning the date of posting”
Analogously, in the current case, the phrase used, which equally applies, is “lodged in the Court in writing”.
The appeal was date stamped as being received on 25th July 2008 in the Labour Court. No satisfactory reason has been advanced for the failure to lodge the appeal in the Court in time. The appeal is therefore out of time and the Court has no jurisdiction and accordingly cannot consider its substance. The recommendation of the Rights Commissioner must therefore stand. The Court so decides and dismisses the appeal..
Signed on behalf of the Labour Court
Raymond McGee
21st August,2009______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.