TED1623

FULL RECOMMENDATION TE/16/58 DETERMINATIONNO.TED1623 r-140954-te-13/MMG INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : KILDARE & WICKLOW EDUCATION & TRAINING BOARD (KWETB) (REPRESENTED BY BYRNE WALLACE) - AND - TERESA IGOE (REPRESENTED BY TOM O' GRADY SOLICITORS) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal Of Adjudication Officer Decisionno:: r-140954-te-13/MMG


BACKGROUND:

2. This is an appeal of an Adjudication Officer Decision No: r-140954-te-13/MMG made pursuant to Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. The appeal was heard by the Labour Court on 22 July, 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:


DETERMINATION:

This matter comes before the Court by way of a preliminary application by Ms Teresa Igoe (the Appellant) relating to the time limit set out in the Workplace relations Act, 2015 (the Act) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. The Act at Section 44(2), (3) and (4) provides 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.

In the within case the Adjudication Officer made a decision in relation to the complaint of the Appellant under the Terms of Employment (Information) Acts, 1994 to 2012 against her employer, Kildare and Wicklow Education and Training Board (the Respondent) on 22^ndMarch 2016. An appeal against that decision, were it to be made within the time limit specified at Section 44(3) of the Act would require to be made no later than 2^ndMay 2016. The appeal was received by this Court on 4^thMay 2016.

The Appellant seeks to have the Court direct, in accordance with Section 44(4) of the Act, that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.

Position of the Appellant.

The Appellant states that she received the decision of the Adjudication Officer on 25^thMarch 2016. The Appellant states that she considered the decision of the Adjudication Officer over the weekend of 2^ndand 3^rdApril 2016 and formed an intention to appeal over that weekend. She stated to the Court that her legal representative commenced the process of preparing the appeal on 4^thApril 2016.

The Appellant contends that exceptional circumstances arose which prevented her giving notice in writing to the Court of her appeal within the time limit set out in the Act. Specifically the Appellant contends:

• 
  •Her legal representative miscalculated the time frames applying in this case and understood that the limit set out in the Act expired on 3^rdMay.

  •Her legal representative posted her appeal at the mails centre in Portlaoise on 2^ndMay 2016 on the understanding that the notice of appeal would arrive in the Court on 3^rdMay 2016.

  •The final date for giving notice of appeal to the Court fell on a Bank Holiday Monday. Two Bank Holidays fell on dates during the appeal period of 42 days.

  •The Appellant was ill for part of the period during which notice of appeal could be given.

  •A decision of the Adjudication Officer under other legislation and given concurrently with the decision of the Adjudication Officer in the within case was issued without jurisdiction leading to misunderstanding as regards that other decision.

  •A planned meeting with Counsel on 15^thMay was cancelled due to the illness of the Appellant on that date leading to a re-scheduled meeting with Counsel on 27^thMay 2016 meeting with Counsel.

Position of the Respondent

The Respondent contends that, the decision of the Appellant to appeal the decision of the Adjudication Officer having been made by 4^thApril 2016, no exceptional circumstances applied which prevented the Appellant from giving notice to the Court of her appeal. The Respondent contends that the illness of the Appellant for part of the period did not prevent the giving of notice of the appeal. The Respondent also contends that the occurrence of two Bank Holidays in the period was not exceptional and did not prevent the giving of notice of appeal. The Respondent further contends that any miscalculation by the Appellant’s legal representative of the date upon which the time limit set out in the Act expired could not be regarded as exceptional circumstances preventing the giving of notice to the Court of the appeal.

Discussion and conclusions.

It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court.

The Court addressed the issue of exceptional circumstances in its decision, albeit in a case under a different statute, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) as follows

• 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 term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.

The Court accepts that the facts of any case are unique to itself and that the application of the law to the within case must be in the context of the circumstances arising in this case

In the within case the Appellant had made her decision to appeal such that her representative commenced the process of appeal on 4^th April 2016. The process of making an appeal to the Court involves the completion of a standard form with a brief narrative. The Court cannot accept that the illness of the Appellant for a period, any miscalculation (by one day) by the Appellant’s representative of the deadline for the giving of notice of appeal or any cancellation of a meeting with Counsel could be construed as exceptional. Even if these events were to be regarded separately or together as exceptional the Court cannot accept in the circumstances that they were of such significance as to prevent the giving of notice of the Appellant’s appeal by 2^nd May 2016. Similarly the occurrence of two bank holidays in the period and the expectation of the Appellant’s representative as regards the efficiency of the postal service cannot be accepted by the Court as being either exceptional or causative of the failure to give notice of the Appellant’s appeal by 2^nd May 2016.

The Court has given consideration as to the effect of the cancellation of the Appellant’s meeting with her Counsel on 15^th May. The Appellant clarified to the Court that a key point for consideration in any such meeting related to the circumstances surrounding another decision of the Adjudication Officer given concurrently with that in the within case. The Court cannot accept that any such meeting or concern as regards another complaint could be regarded as having prevented the giving of notice in the within appeal.

The Court has concluded that no exceptional circumstances apply in relation to the within appeal such that the Appellant was prevented from giving notice of appeal within the time set out in the Act. The Court therefore cannot give a direction in accordance Section 44(4) of the Act.

Determination

The Court determines that the within appeal was made outside of the time limit set down in the Act at Section 44(3) and consequently the Court does not have jurisdiction to hear the appeal.

Signed on behalf of the Labour Court




JD______________________
10 August 2016Kevin Foley
Chairman


NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.