FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : MATER MISERICORDIAE UNIVERSITY HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DR. JACQUELINE MALOUF DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. An appeal against the Decision of an Adjudication Officer no r-154605-pw-15/DI.
BACKGROUND:
2. This is an appeal of a Rights Commissioner's (now known as an Adjudication Officer) Decision No: r-154605-pw-15/DI made pursuant to Section 7(1) of the Payment of Wages Act, 1991. This appeal was heard by the Labour Court on 19th January 2016 in accordance with Section 44 of the Workplace Relations Act, 2015.
The Adjudication Officer found that the Complainant's complaint was statute barred as it was presented outside the time limits provided for under Section 6(4) of the Act and he was satisfied that exceptional circumstances were not present to justify the delay in presenting her complaint, therefore he held that he had no jurisdiction to hear her complaint under the Act. This Decision was appealed by the Complainant. The following is the Court's Determination:
DETERMINATION:
The complaint under the Payment of Wages Act, 1991 (the Act) relates to a claim by Dr. Jacqueline Malouf that she was not placed on the appropriate salary scale for the periods of her employment with Mater Misericordiae University Hospital from January 2012 until December 2012 and from January 2014 until 13thJuly 2014.
For ease of reference the parties are given the same designation as they had at first instance. Hence Dr. Jacqueline Malouf will be referred to as “the Complainant” and Mater Misericordiae University Hospital will be referred to as “the Respondent”.
At the outset of the hearing, the Respondent objected to the case proceeding on grounds that it had not been notified of the appeal in accordance with section 7(2)(b) of the Act. The Respondent also raised objections to the proceedings on grounds that the claim was submitted outside the six-month time limit prescribed by section 6(4) of the Act.
The Court proceeded to hear these preliminary objections and issue its Determination.
Summary of the Complainant’s Case on the Preliminary Objections
The Complainant, a Non Consultant Hospital Doctor, told the Court that she was diagnosed with a serious medical condition in February 2014 for which she required treatment in the USA, her parents who lived in the USA were also ill and she had to care for them. Furthermore she said that at the time she was undertaking an onerous role, competing for exams and was making efforts to resolve the issue with her employer and with the HSE. The Complainant was on sick leave from February 2014 until the termination of her employment with the Respondent on 13thJuly 2014. She said that it was not until 2014 that she finally realised that the issue regarding her salary was not going to be amended.
Finally the Complainant explained to the Court that she was not legally qualified and was unfamiliar with the process.
Summary of the Respondent’s Position on the Preliminary Objections
Ms Sheila Treacy, Ibec, on behalf of the Respondent submitted that the events relied upon by the Complainant could not constitute exceptional circumstances preventing the claim being lodged in time. She submitted that the Adjudication Officer was correct in finding that the “ignorance of the law, the demands of her new role and her medical condition” did not constitute exceptional circumstances to extend the time limit. Ms Treacy stated that the Complainant’s medical condition resulted in her absence from work from February 2014 until July 2014, at which time she resigned from the employment and took up a position in another hospital.
Ms Treacy also stated that the Complainant had made enquiries about her salary to the Respondent’s HR Department in 2012 which were dealt with at the time. She left the Respondent’s employment at the end of 2012 and subsequently resumed employment again with the Respondent in January 2014, however, Ms Treacy submitted that she did not raise any issue regarding her salary terms until 19thDecember 2014, five months after leaving its employment. Ms Treacy said that the Complainant was furnished with a response to her December query from the HR Department on 14thJanuary 2015, yet she did not submit her claim until 19thMarch 2015.
The Respondent referred to claims submitted by the Complainant against the Respondent under the Employment Equality Acts, 1998 – 2011, which were lodged with the Equality Tribunal on 10thJune 2014.
Conclusions of the Court
- (i)Preliminary Objection to Jurisdiction - Failure to notify Respondent of appeal
The Respondent objected to the jurisdiction of the Court on the basis that the Complainant had failed to serve it with a copy of the notice of appeal delivered to the Court. In advancing its objection the Respondent relied upon the provisions of section 7(2) of the Act which provides: -
(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—- (a)a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision,
- and
- (a)a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision,
The Respondent accepts that it received a copy of the said notice of appeal from the Court.
This objection is grounded on an erroneous understanding of the statutory basis upon which this appeal is before the Court and is misconceived in law.
Section 7 of the Act of 1991 governs the reference of appeals to the Employment Appeals Tribunal. This appeal was not referred to the Employment Appeals Tribunal pursuant to the statutory provision relied upon. It is before this Court pursuant to section 44 of the Workplace Relations Act 2015 by operation of section 53 of that Act, as amended by section 20 of the National Minimum Wage (Low Pay Commission) Act 2015. Consequently, section 7(2) of the Act of 1991 has no application to this appeal.
Section 44 (2) of the Workplace Relations Act 2015 provides:-
- 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.
This provision does not obligate an appellant to deliver a copy of the notice originating the appeal to the other party concerned. Rather, the Labour Court (Employment Rights Enactments) Rules 2015, made pursuant to section 20 of the Industrial Relations Act 1946, as amended by section 50 of the Act of 2015, provides that a copy of a notice of appeal shall be sent by the Court to the other party concerned. That occurred in this case.
The Complainant complied fully with the procedural requirements of section 44 of the Act of 2015 and the aforementioned Rules in the initiation of her appeal. The appeal is properly before the Court and the Respondent’s objection to the jurisdiction of the Court is dismissed.
- (ii)Preliminary Objection to Jurisdiction - Time Limit
InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110, which was a case under the employment equality legislation, this 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. Whilst the Court has considered the earlier decisions to which it was referred, they are of limited assistance since the circumstances of neither of them correspond to those of the instant case.
Exceptional Circumstances
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(see R v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.)”
Applying that approach to this case, firstly, the delay in this case was lengthy. The Complainant was deemed fit to recommence employment (with an alternative employer) on 13thJuly 2014 and she initiated alternative employment rights proceedings against the Respondent in June 2014 which was within the time limit. The Court is of the view that in such circumstances there were no out of the ordinary reasons why she could not also have submitted her claim under the Payment of Wages Act within time.
In all the circumstances of this case, the Court cannot accept that the grounds advanced by the Complainant for not having presented her claim on time either explains the delay or excuses the delay. Accordingly the Court cannot accept that exceptional circumstances have been shown to justify an extension of the statutory time-limit.
Therefore the claim under the Acts is out of time and is statute barred. The Court has no jurisdiction to hear the Complainant’s complaint.
Determination
Having regard to the findings set out above the within appeal is disallowed and the Decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
22nd January, 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.