UDD1630

The Issue

The Complainant resigned from his employment on 1^stOctober 2012. He is claiming constructive dismissal. The Court notified the parties that it would consider the question of whether the claim was submitted within the statutory time limit and whether the statutory conditions existed on which an extension of time could be granted. The Court held a preliminary hearing on 13^thOctober 2016 to hear from both parties on these issues.

At the hearing before the Court, Mr Brendan Graham representative for the Complainant acknowledged that the complaint was referred outside the statutory time limit, however he put forward a range of reasons to excuse the delay and to obtain an extension of time. They related, in the main, to a claim that he was medically unfit to attend to his affairs in the relevant period.

Ms Rita Kilroy, B.L., instructed by Thomas J. Walsh Solicitors on behalf of the Respondent, submitted that there was no evidence to substantiate the assertion that the Complainant was suffering from psychological stress which prevented him from submitting his complaint under the Acts in time and that there were no grounds to grant an extension of time.

Mr Graham stated that on 19^thSeptember 2012, both he and the Complainant attended the offices of Mayo Intercultural Action, a charity organisation working to promote positive effects of interculturalism in Co, Mayo. They requested support and were assisted in the preparation of,inter alia, an alleged claim of constructive dismissal.

On the Complainant’s behalf Mayo Intercultural Action having assisted in the preparation and submission of his complaint, proceeded to post the complaint form to NERA Office in Sligo on 29^thMarch 2013 (Good Friday). A follow up call to check on its progress was made by Mayo Intercultural Action to the NERA Office on 24^thApril 2013, as a result the form was date stamped by the NERA Office on that date and forwarded by them to the Labour Relations Commission (now known as the Workplace Relations Commission) and was received on 25^thApril 2013. The deadline date for receipt of the form was 31^stMarch 2013 (Easter Monday).

Mr Graham stated that after the Complainant resigned his employment with the Respondent, both the Mayo Intercultural Action and he were in regular contact with the Complainant about the possibility of referring a complaint of unfair dismissal under the Acts. At this time the Complainant had returned to his home in Romania. He said that it was not until 20^thMarch 2013 that the Complainant gave the consent to lodge a claim and signed the form.

At this point there were ten days remaining in which to ensure that the complaint was referred within the statutory time limit. However, the Complainant’s representatives who were working on his behalf failed to refer it in time.

Mr Graham told the Court that the delay was caused due to the complaint form being sent to NERA Offices in Sligo instead of to the Workplace Relations Customer Services, in Carlow and that as it was posted on Good Friday and the next postal delivery date was Easter Monday, it could not have arrived in time. Mr Graham stated every effort was made to meet the statutory deadline. He said that the Mayo Intercultural Action acted in good faith, they had been liaising with the Inspector/Team Manager in NERA Office in Carlow in relation to submitting the complaint and that NERA Sligo had assured it that it was the appropriate forum for submission of the complaint form.

In relation to this matter, Mr Graham furnished the Court with a letter from the Inspector/Team Manager in NERA Office at the relevant time, it was dated 8^thJune 2016 and read as follows:-

• Re: Receipt of Complaints for Certain Employment Rights bodies (January 2012)
  
  Dear Mr. Graham
  
  I refer to your query concerning employment rights complaint forms received in what were originally known as NERA Regional offices.
  I can confirm that from January 2012, first instance complaints received for the Rights Commissioners Service, NERA, the Equality Tribunal and certain complaints to the Employment Appeals Tribunal and Labour Court were only accepted by a body known as the Workplace Relations Customer Service (WRCS). The purpose of the WRCS was to provide a single point of entry into for complainants for the relevant employment rights organisations.
  
  Instructions given to NERA Regional Offices in early 2012, some of whose staff worked on behalf of the WRCS, were that complaint forms received should be dated when received. The details of the complaint, including the date received at NERA Regional Officers were entered on a WRCS database, complaints were acknowledged by the WRCS staff and the complaints were then sent to the relevant Adjudication body.
  
  I hope this explains the position but please do not hesitate to contact me should you have any further queries.
  
  Yours sincerely
  
  Inspector/Team Manager
  

The question for determination in this case is whether the Complainant was prevented by exceptional circumstances from bringing his claim within the time limit prescribed by Section 7(b) of the Acts. 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.

Having considered the submissions of the parties there is no doubt that the within claim was presented more than six months after the Complainant resigned from his employment. Consequently the Court must first consider if the circumstances relied upon by the Complainant can be regarded as exceptional and if so did they operate so as to prevent him from lodging his claim in time.

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

• “The Court must first consider if the circumstances relied upon by the Complainant 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 Complainant 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,seeR v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.”

• “A person can be prevented from doing that which they intended to do by being given wrong information or advice (or by having necessary information or advice withheld) by one with whom they have a relationship of trust and confidence.”

Decision

For the reasons set out herein, the application for an extension of time is granted to the Complainant and the Decision of the Adjudication Officer /Rights Commissioner is affirmed in that regard and the appeal is disallowed.

The Court will now proceed to hear the Respondent’s appeal of the substantive case.

The Court so Decides.

Signed on behalf of the Labour Court



Caroline Jenkinson
LS______________________
1 November 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.