EET103

• “It is my opinion that the complainant has not established reasonable cause for the delay in referring his complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case.”

• 12) (a) Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under subsection (6), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.

  (b) On the appeal the Labour Court may affirm, quash or vary the decision.

  ( c) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director on such an application until –

The Court wrote to the parties on 25 August 2010 seeking submissions on the issue of whether the Court had jurisdiction under Section 77 (12) to consider an appeal against a direction issued pursuant to Section 77(5). The Court conducted an oral hearing on the preliminary issue on 1 September 2010.

Position of the Complainant:

Mr Grogan, on behalf of the Complainant, sought additional time to address the issue. The Court granted the additional time. After a considerable delay Mr. Grogan advised the Court that he would not be making any additional submissions on the issue.

Position of the Respondent

The Respondent did not enter an appearance.

Findings of the Court:

Section 77(12) of the Act provides for an application to the Court by a complainant against a decision of the Director not to grant an extension of time under Section (6) of the Act.

In this case the Director made a direction pursuant to Section 77(5) of the Act. The Court is asked to consider an appeal against that decision under Section 77(12), of the Act. Section 77 (12) provides for appeals against decisions made pursuant to Section 77(6) of the Act. Accordingly on the face of it the Court has no statutory jurisdiction to consider such an appeal.

The Court considered whether the matter comes within the scope of Section 5 (1) of the Interpretation Act 2005. In order to do so however two conditions must be met. The statutory provision must be either“obscure or ambiguous”or “on a literal interpretation would be absurd or would fail to reflect the plain intentionof” … the Oireachtas”in which circumstance the “provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole”.

In this case the statutory provision is not “obscure or ambiguous.” Furthermore a literal interpretation of the provision of the Act cannot be said to be absurd.

The Court cannot identify any justification for reaching the conclusion that a literal interpretation of the provision of the statute would fail to reflect the plain intention of the Oireachtas.

The Court has in several cases, determined appeals under Section 77 (12) from directives issues by the Director pursuant to Section 77 (5). This issue was not brought to the Court’s attention in those cases and an error in law must be corrected at the first opportunity rather than be repeated for the sake of consistency or certainty.

Accordingly the Court finds that it is required to construe the provision “in the ordinary and natural meaning of the words and sentences” in which it is written.

The Court determines that it does not have jurisdiction to hear the appeal under Section 77 (12) against a decision of the Director not to issue a directive to extend time pursuant to Section 77 (5) of the Act..

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
13th December, 2010______________________
MG.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.