UDD167

The Facts

The Applicant referred a complaint to the Labour Relations Commission on 14^thApril 2015 under the Unfair Dismissals Act 1977 to 2007. The Adjudication Officer issued a decision on 10^thSeptember 2015. An appeal of that decision, if one were to be made within the time limit specified in the Act of 42 days, would require to be received by the Court on 21^stOctober 2015.

The Applicant appealed the decision of the Adjudication Officer by notice received by the Court on 16^thNovember 2016.

The Law

Section 14(2) of the National Minimum Wage (Low Pay Commission) Act 2015 amends the Unfair Dismissals Act, 1997 as follows:

• 14 (2) Section 8A (inserted by paragraph (h) of subsection (1) of section 80 of the Act of 2015) of the Unfair Dismissals Act 1977 is amended by the substitution of the following subsection for subsection (2) :
  • “(2) Section 44 of the Workplace Relations Act 2015 shall apply to a decision of an adjudication officer given in respect of a claim for redress under this Act by an employee as it applies to a decision of an adjudication officer given in proceedings under section 41 of that Act, subject to the following modifications:

• ‘(1) (a) A party to a claim for redress under the Act of 1977 may appeal a decision of an adjudication officer given in relation to that claim to the Labour Court and, where the party does so, the Labour Court shall—
  • (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

    (ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and

    (iii) give the parties to the appeal a copy of that decision in writing.

    (b) A decision of the Labour Court under paragraph (a), may include an award of redress under section 7 of the Act of 1977.’;

(b) any other necessary modifications.”.

• (3) Section 11 (inserted by paragraph (k) of subsection (1) of section 80 of the Act of 2015) is amended, in subsection (2), by the insertion of “or the Companies Act 2014 ” after “the Companies Acts”.

  (4) This section shall come into operation on the commencement of section 80 of the Act of 2015.

The decision of the Adjudication Officer in this case issued on 10^thSeptember 2015. The above provision of the National Minimum Wage (Low Pay Commission Act) 2015 came into operation on 1^stOctober 2015 by operation of the law upon the commencement of Section 80 of the Workplace Relations Act, 2015 (the Act of 2015). Therefore the within application is considered by the Court in accordance with Section 44 of the Act of 2015.

Section 44 of the Act of 2015 in relevant part provides as follows:

• 44. (1) (a) A party to proceedings under section 41 may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall—
  • • (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

      (ii) make a decision in relation to the appeal in accordance with the relevant redress provision, and

    (iii) give the parties to the appeal a copy of that decision in writing.

• • (i) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a complaint under that section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5 , the provision of that enactment specified in Part 2 of Schedule 6 ,

    (ii) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5 , the provision of that enactment specified in Part 2 of Schedule 6 and

    (iii) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a complaint under subsection (3) of that section, paragraph 2 of Schedule 2 to the Act of 2012.

  (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.

Position of the Applicant

The Applicant stated to the Court that the decision to appeal the decision of the Adjudication Officer was made on 2^ndOctober 2015 and the notice of appeal was placed with other correspondence of the Applicant’s Trade Union to be sent to the Court by registered post on that date. A ‘postal strike’ took place on that date and the Applicant thought that the notice of appeal had issued when that strike concluded.

The Applicant stated that the notice of appeal was found in the building of the Applicant’s Trade Union on 27^thOctober. The Applicant’s Trade Union states that a meeting was convened with the Applicant on 15^thOctober 2015 and the notice of appeal issued on that date.

The Applicant stated that when the notice of appeal was found on 27^thOctober the Applicant’s Trade Union was unaware of the provisions of the Act of 2015 which had commenced on 1^stOctober 2015. The Applicant’s Trade Union subsequently, at some point between 27^thOctober and 15^thOctober 2015, became aware of the provisions of the Act of 2015 and convened a meeting with the Applicant which took place on 15^thOctober 2015.

The Applicant contended that the events as set out to the Court constitute exceptional circumstances within the meaning of Section 44(4) of the Act of 2015.

Position of the Respondent

The Respondent contended that the existence of a one day ‘postal strike’ could not be regarded as affecting the Applicant’s capacity to submit an appeal on time. The Respondent contended that the Applicant was represented at all times by his Trade Union throughout the process and should have been aware of the requirements to submit an appeal on time.

The Respondent submitted to the Court that contact had occurred between the representative of the Respondent and the Applicant’s Trade Union representative on 4^thNovember 2015. The Respondent asserted that on that date the Applicant’s Trade Union representative confirmed that no instruction to appeal the decision of the Adjudication Officer had been received and that the Trade Union representative expected to receive the instructions of the Applicant by the end of the week of 4^thNovember 2015.

The Respondent contended that the Applicant had not demonstrated that exceptional circumstances existed and that no such exceptional circumstances prevented the Applicant from lodging an appeal of the decision of the Adjudication Officer.

Discussion

InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110this Court gave extensive consideration to the meaning of the expression"exceptional circumstances". In that case the Court stated 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 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.”

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 Section 44(4) of the Act of 2015 exist.

In the within case the Applicant has stated that the notice of appeal was lost within the Applicant’s Trade Union’s office for the period from 2^ndOctober 2015 to 27^thOctober 2015. The Applicant states that the notice of appeal had been lost at the point in the process of posting after it had been recorded within the Trade Union as being registered. No evidence has been presented to the Court of the internal postal record of the Trade Union relating to the registration of this notice of appeal on 2^ndOctober.

The notice of appeal was, according to the Applicant, found in the offices of the Trade Union on 27^thOctober 2015. The Applicant took no steps to lodge the appeal with the Court at that time and stated to the Court that the Trade Union was unaware at that time of the law as it applied to the case.

The Applicant stated to the Court that a meeting was held on 15^thNovember 2015 between the Applicant and his Trade Union. The Court was advised that the decision to proceed with an appeal was taken on that date. The letter making the appeal to the Court was dated 12^thOctober 2015. No explanation was offered to the Court for this sequence of events as presented to the Court.

The Respondent in this case stated that a conversation was held between the Respondent’s representative and the Trade Union of the Applicant on 4^thNovember 2015 at which point the Trade Union advised the Respondent that no decision to appeal the Adjudicator’s decision had been taken as of that date.

Decision

The Court has considered the detail of this matter as submitted by the parties. The Court has identified inconsistencies with regard to the sequence of events as described by the Applicant. In addition the Court has been presented with an account of a conversation between the Respondent’s representative and the Trade Union of the Applicant on 4^thNovember 2015 which has not been controverted by the Applicant.

In all of the circumstances the Court finds that the existence of exceptional circumstances has not been established such that the Court should direct that a notice under Section 44(2) of the Act may be given to it after the expiration of the period set out in Section 44(3) of the Act.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
29th April, 2016______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.