UDD1632

For ease of reference, the parties are referred to in the within determination as they were at first instance i.e. Mr Barry is referred to as “the Complainant” and HSE West is referred to as “the Respondent”.

This is the Complainant’s appeal of the decision of an Adjudication Officer in respect of the former’s complaint under the Unfair Dismissals Act 1977 (“the 1977 Act”). The Adjudication Officer’s decision is dated 6 July 2016. The Complainant’s Notice of Appeal was received by the Court by on 18 August 2016 i.e. outside the 42-day time limit provided in section 44(3) of the Workplace Relations Act 2015 (“the 2015 Act”) for the bringing of such an appeal. The Complainant accepts that this is the case but submits that exceptional circumstances prevented him from referring the appeal within the 42-day period. The Respondent objects and submits that no such exceptional circumstances should be deemed to apply in the circumstances of the within appeal. It follows that the Court is obliged to first consider and determined the preliminary issue of whether or not exceptional circumstances applied.

The Parties’ Positions

Following the termination of his employment with the Respondent, the Complainant relocated to Canada. He returned to Ireland to attend at the hearing of his complaint under the 1977 Act but went back to Canada thereafter. He submits that, in the circumstances, all communication between him and his trade union in respect of the outcome of the hearing before the Adjudication Officer and the appeal thereof was by email or by telephone. There were difficulties associated with certain of those email communications, in particular with emails sent on behalf of the trade union on 7 July 2016 and on 5 August 2016 with the result that the Complainant’s completed and signed appeal from was only received in SIPTU’s offices on 17 August 2016. The Complainant referred the Court to its determination inKylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) in support of his submission that his absence from the jurisdiction and the unreliability of the email system amount to exceptional circumstances which prevented him from bringing his appeal within 42 days.

The Respondent submits that the Complainant was in Ireland on 27 July 2016 for the purposes of prosecuting a separate complaint before the Employment Appeals Tribunal. The Respondent also points to the Complainant’s own admission in his written submission to the Court wherein he accepts that he was in possession of a copy of the Adjudication Officer’s written decision on 19 July 2016. On the basis of the foregoing, the Respondent contends that no exceptional circumstances apply and that the Court should not accede to the Complainant’s application to extend to the time for bringing his appeal.

The Law

Subsections (3) and (4) of section 44 of the 2015 Act provide:

“(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.”

This Court has, in a number of cases, considered the application of the test to determine whether exceptional circumstances apply. For example inJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110(cited inKylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) the Court stated:

“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 (seeR v Kelly[1999] 2 All ER 13 at 20 per Lord Bingham CJ.)”

Conclusion

In this case it is for the Complainant to both explain the delay in lodging his appeal and to offer a justifiable excuse for the delay. Having regard the submissions advanced on behalf of the Complainant, the Court is of the view that he has not offered a justifiable excuse for the delay in all the circumstances. The Appeal, therefore, fails.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
8th November, 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.