EDA169

The Facts

The Applicant referred a complaint to the Director of the Equality Tribunal under the Employment Equality Acts on 17^thSeptember 2013. The Adjudication Officer issued a decision on 21^stDecember 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 31^stJanuary 2016.

The Applicant appealed the decision of the Adjudication Officer by notice received by the Court on 1^stFebruary 2016.

The Law

Section 17 of the National Minimum Wage (Low Pay Commission) Act 2015 amends the Employment Equality Act 1998 as follows:

17. (1) The Employment Equality Act 1998 is amended—

(a) by the substitution of the following section for section 83:

• “83. Section 44 of the Act of 2015 shall apply to a decision of the Director Workplace Relations Commission under section 79 as it applies to a decision of an adjudication officer under section 41 of that Act, subject to the following modifications:

• • ‘(1) (a) A party to a case referred to the Director General of the Workplace Relations Commission under section 77 of the Act of 1998 may appeal a decision of the Director General given in an investigation in relation to that case under section 79 of that Act 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) The Labour Court shall have power to grant such redress in an appeal under this paragraph as the Director General has power to grant in an investigation under section 79 of the Act of 1998.’;

  and

• and

• • (i) the insertion of “or” after “begun” in paragraph (a) of subsection (4), and

    (ii) the substitution of the following paragraph for paragraph (b) of subsection (4):

    “(b) an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Act 1977 applies in respect of the dismissal.”.

  (2) This section shall come into operation on the commencement of section 83 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 contends that the she had formed her intention to appeal the decision of the Adjudication officer within the 42 day limit for Appeal provided by the Act of 2015. The Applicant contends that correspondence received from the Workplace Relations Commission on issuance of the decision of the Adjudication Officer indicated to the Applicant that an appeal must be lodged with the Court within 42 days of the date of decision of the Adjudication Officer. The Applicant submitted that the correspondence was not clear as to whether the time specified dated from the date of decision or the date of correspondence conveying that decision to the Applicant.

The Applicant further contends that the appeal documents were posted by the Applicant’s legal representatives by registered post on Thursday 28^thJanuary 2016. The Applicant’s legal representative believed, based on faith in the consistency of the postal service, that the appeal documents would be received by the Court before the expiry of the 42 day time limit. The 31^stJanuary 2016 fell on a Sunday and the appeal documents were received by the Court on Monday 1^stFebruary 2016 at 9.41am.

The Applicant contends that the delay of one day in the lodging of the Applicant’s appeal was due to the existence of exceptional circumstances.

Position of the Respondent

The Respondent contends that many options existed for the Applicant’s legal representative to ensure that the appeal was lodged with the Court within the 42 day time limit. The Respondent submitted that the Applicant’s representative could have used the postal facilities to ‘track’ the progress of the appeal documents from the time of postage until their receipt by the Court. The Respondent contends that it is far from exceptional for a letter to take more than one business day to arrive at its intended destination.

Conclusions of the Court

The Court has considered the expression ‘exceptional circumstances’ in many previous cases. The Court is of the view that the application of the expression falls to be considered having regard to the circumstances arising in each case where the matter arises. No two cases present the same set of facts and therefore the matter has to be considered on the merits of the circumstances arising in each case.

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. 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.”

The matter was also considered by the Court in its recommendation inJennifer Murphy v Aldi Stores (Ireland) Limited (EET043)(2004).In that case the Court stated as follows:

“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, the Court must consider if it is out of the ordinary course or uncommon for a Solicitor to send a client's claim by post one day before the time limit of its initiation is due to expire, during the currency of a postal strike and without making any back up arrangements, such as sending a copy by fax or by courier.

• In deliberating that question the Court has concluded that what occurred must be regarded as exceptional. Furthermore, it is clear that those circumstances prevented the claim being presented in time,since if the transmission of the claim had been delivered other than by posting it to the Court it would have arrived in time.

• What occurred also explains the delay and provides the applicant with a justifiable excuse for the delay. The applicant completed the necessary forms on 18th March 2004. She left the forms with her Solicitor in the reasonable belief that she had done what was expected of her and that the Solicitor would do all that was necessary to properly initiate her claim. A Solicitor is an Officer of the Court who is held out under the authority of an Act of the Oireachtas as authorised to conduct legal business on behalf of clients. In the Court's view, having placed her affairs in the hands of an established and respected firm of solicitors, the applicant could not be fixed with responsibility for what subsequently occurred.”