EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Patrick O'Brien -claimant UD435/2013
MN240/2013
WT65/2013
against
Sierra Communications Limited T/A Sierra Support Services Group -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr N. Dowling
heard this claim at Wexford on 9th July 2014
Representation:
Claimant: Ms. Catherine O’Connor, MJ O’ Connors, Solicitors
Respondent: Ms. Rosemary Mallon B.L. instructed by Ms Louise O'Byrne, Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
Determination of the Preliminary Issue
Having heard the evidence of the claimant and the submissions of the legal representatives for the claimant and the respondent the Tribunal finds as follows:-
As the hearing dealt only with the preliminary issue as to whether the claims under the Unfair Dismissals Acts 1977-2007 and the Organisation of Working Time Act 1997 were within timethe claim under the Minimum Notice & Terms of Employment Act 1973, having no limitation period,is still extant.
On the claimant’s own evidence that his contract, whether it be a contract of services or a contract for services, was terminated on 27th August 2012.
If the claimant is deemed to have employee status he is entitled to add a two week notice period to the date of 27th August 2012 making the effective date of termination either Friday, 7th September 2012 or Monday 10th September 2012.
The six-month limitation period imposed by section 8(2) of the Unfair Dismissal Act 1977 accordingly commenced on either the 7th September 2012 or the 10th September 2012. The six-month limitation would then expire on either 6th March 2013 or the 9th March 2013. The claimant’s application to the EAT was received on 14th March 2013 and was either 5 or 8 days out of time.
The Tribunal has jurisdiction under section 8(2) of the Unfair Dismissal Act 1977 by s.7(c) of the Unfair Dismissals (Amendment) Act 1993 to extend the six-month limitation period for a further six months if it is satisfied that the failure by the claimant to lodge his application within the said six months was due to “exceptional circumstances.” The Tribunal accepts the submission that time limits are not supposed to trap an applicant who acts in good faith but nonetheless the Tribunal is bound by the “exceptional circumstances” test for extending time under the section. The “exceptional circumstances” provision has in the past been strictly construed by the Tribunal and is not to be influenced by mechanisms provided by other statutory provisions for extending time.
The Tribunal accepts that the six-month limitation period is short but that is what the legislature intended. The Tribunal notes that under the old s.8(2) of the 1977 Act there was no provision at all for extending time and the Tribunal held it had no inherent jurisdiction to alter either by abridgement or by extension any provision made by the legislature fixing a time limit for the taking of any step (see Cherubini v Joseph Downes & Son LtdUD 22/1978).
On his own evidence the claimant admitted that he knew sometime between the 20th September 2012 and 25th September 2012 that if he was deemed to have employee status he was entitled to lodge a claim for unfair dismissal as against the respondent if he felt he had grounds for so doing.
On the 26th February 2013 the claimant became aware that the Department of Social Protection had altered his employment status to that of employee albeit that there was a 21-day period in which this decision by the Department of Social Protection could be appealed. This distinguishes the within case from Byrne v P J Quigley Ltd [1995] ELR 205 where unknown to Byrne “his employment status was altered by the decisions of a third party, i.e. the Department of Social Welfare”.
Whereas the Tribunal accepts that it was reasonable for the claimant to await a determination from the Department of Social Protection on his employment status, acting reasonably is not a sufficient ground upon which to extend the time. See Byrne v P J Quigley Ltd. Even if the Tribunal were to accept that awaiting the outcome of the decision of the Department of Social Protection was an exceptional circumstance justifying extending time the claimant could still have made his application within time albeit that he only had somewhere between 5 and 8 days to make the application and that the decision was of the Department was still subject to appeal by the respondent.
The Tribunal does not accept that the claimant held off making his application until the appeal period open to the respondent had expired as he did in fact lodge his claim with the Tribunal on 13th March 2013 (receipt date 14th March 2013) some 6 days before the said appeal period was due to expire.
The Tribunal accepts the claimant was unfamiliar with the process and procedures of making his application and accepts that he believed it was not open to him to submit a claim unless he was an employee. Regretfully the Tribunal finds, in common with other Divisions of the Tribunal, that it is bound by the principle ignorantia juris non excusat (ignorance of the law is no excuse or defence), cannot be relied upon to extend time and could not be considered “exceptional circumstances”. See, for example, Byrne v P J Quigley Ltd. and Catherine Ring v Ring-Gard Roller Shutter & Doors Limited (2005 UD226).
For the foregoing reasons the Tribunal is satisfied that there were no exceptional circumstances which prevented the lodging of the claim within the six month limitation period provided by section 8(2) of the Unfair Dismissals Act 1977 by s.7(c) of the Unfair Dismissals (Amendment) Act 1993 and accordingly the Tribunal cannot exercise its jurisdiction to extend time. In the circumstances the Tribunal has no jurisdiction to hear the claim under the Unfair DismissalsAct 1977 (as amended).
Regarding the claim under the Organisation of Working Time Act 1997 the Tribunal finds that the claim was lodged outside the six-month limitation period provided for in section 27 of the Act and an extension of time may only be granted for reasonable cause. The Tribunal further finds, and as already noted above, that whereas it may have been reasonable for the claimant to await the decision of the Dept. of Social Affairs on his status before lodging his claim he had in fact received this decision before the limitation period had expired. Accordingly the Tribunal cannot exercise its jurisdiction to extend time and the Tribunal thus has no jurisdiction to hear the claim under the Organisation of Working Time Act 1997.
Regarding the claim under the Minimum Notice & Terms of Employment Act 1973 as the Department of Social Protection Scope section decision regarding the employment status of the claimant is under appeal the Tribunal has not yet made a determination in relation to this claim. This claim will be relisted in due course following the outcome of the appeal and/or any subsequent appeals. The onus is on the parties to inform the Tribunal when the matter can be relisted for hearing.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)