FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : GALWAY & ROSCOMMON ETB (REPRESENTED BY RONAN DALY JERMYN SOLICITORS) - AND - JOSEPHINE KENNY (REPRESENTED BY CO LONGFORD CITIZENS INFORMATION SERVICE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Recommendation No: ADJ-00000706.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officerto the Labour Court on 7th July 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 19th August, 2016. The following is the Determination of the Court:
DETERMINATION:
This is a preliminary application to the Court by Ms Josephine Kenny (the Applicant) for an extension of time to bring an appeal to the Court of a Decision of an Adjudication Officer. The Complainant appealed the Decision in her complaint made under the Unfair Dismissals Act 1977 to 2015 against her former employer Galway and Roscommon ETB (the Respondent).
The Facts
The Applicant referred a complaint to the Workplace Relations Commission on 24thNovember 2015 under the Unfair Dismissals Act 1977 to 2015. The Adjudication Officer issued a decision on 28thApril 2016. An appeal of that decision, if one were to be made within the time limit specified in the Workplace Relations Act 2015 of 42 days, would require to be received by the Court on 8thJune 2016.
The Applicant appealed the decision of the Adjudication Officer by notice received by the Court on 9thJune 2016.
The Law
The within application is to be considered in accordance with the provisions of Section 44 (2) (3) and (4) of the Workplace Relations Act 2015.
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.
Summary of the Applicant’s Case
Ms Connie Gerety, Manager, Co. Longford Citizens Information Service (herein after referred to as the CIS), on behalf of the Applicant stated that exceptional circumstances existed in this case. Ms Gerety told the Court that the Applicant was working on the basis of a deadline of 9thJune 2016 for submission of the appeal, which deadline, Ms Gerety had confirmed was correct, when in fact the deadline was miscalculated by one day. Ms Gerety told the Court that the Applicant relied on her advice.
Ms Gerety told the Court that the Applicant received the Decision of the Adjudication Officer on or about 30th April 2016. The Adjudication Officer’s Decision was unfavourable to her and was a cause of distress to her and resulted in her attending her GP. Her GP advised that she should take a holiday which the Applicant did and she was out of the country from 18thMay and returned on 26thMay 2016. The Applicant engaged the services of the CIS on 1stJune 2016 and signed a form giving the CIS the authority to act on her behalf on that date. The Applicant completed the Labour Court Appeals Form under her signature dated 7thJune 2016. On 8thJune 2016 the Applicant engaged further with Ms Gerety on the contents of the Form. Ms Gerety told the Court that she herself posted the Form on behalf of the Applicant by registered post on the evening of 8thJune 2016, being of the mistaken belief that the date for receipt by the Labour Court was 9thJune 2016.
Ms Gerety confirmed on behalf of the Applicant that both she and the Applicant were aware that they were submitting the appeal at a very late stage.
Summary of the Respondent’s Position
Mr David Leahy, Chief Executive of the Respondent organisation attended the hearing in person. He furnished a brief letter dated 28thJuly 2016 to the Court submitting that it was the Respondent’s view that nothing contained in the Applicant’s submission to the Court met the required criteria for exceptional circumstances in accordance with Section 44 (4) of the Workplace Relations Act 2015. Accordingly, Mr Leahy submitted that the Applicant’s application should be dismissed.
Conclusions of the Court
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 notice of an appeal 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 by the due date.
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 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 Court notes that the Applicant had in relation to the substantive case previously been represented by a trade union official and a Solicitor. The Court further notes that in the aftermath of the Adjudication Hearing, the Applicant sought information from the CIS on the likely timeframe for receipt of the Adjudication Officer’s Decision. Following receipt by her of the Decision dated 28thApril 2016, the Applicant on 1stJune 2016 met with Ms Gerety for the first time to consider what options were available to her. Thereafter the Applicant completed the Appeals Form on 7thJune 2016 and it was posted on 8thJune and received by the Labour Court on 9thJune 2016 – one day outside the deadline date.
Ms Gerety on behalf of the Applicant drew the Court’s attention to a number of cases,viz, Kylemore Services Group Home Fare Services v Terrie Clarke,EDA169 ;An Employee v An EmployerUD566/2012;Kenneally v Waterford Carpets Limited2009 E.L.R.28; andJennifer Murphy v AldiEET043/2004 on the basis that the circumstances of those cases were similar to the within case.
These cases involved situations where the Complainant’s legal representatives were late in filing their submissions, due to various reasons: post did not arrive on time, intervention of postal strike etc. The Court is satisfied that those cases can be distinguished from the within case in that none of them appear to involve a miscalculation of the due date of the appeal.
The reason advanced on behalf of the Applicant for the delay in presenting her appeal was based on the mistaken belief that the date for receipt by the Labour Court was 42 days post the date of the Adjudication Officer’s Decision, as opposed to 42 days from the date of the Decision, in accordance with the provisions of the Interpretation Act, 2005.
Section 18(h) Interpretation Act 2005 deals with the interpretation of periods of time that are set down in legislation, as follows:-
- “Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;”
Accordingly, the Court is satisfied that a miscalculation was the reason for the delay, as the Appeal Form was signed by the Applicant in time for it to be received by the Court by the due deadline. The Court cannot accept that a miscalculation of the due date amounts to “exceptional circumstances” as defined by Section 44(4) of the Workplace Relations Act 2015. The miscalculation of the deadline date is akin to a misinterpretation of the statutory provisions. The Court is satisfied that the legal principleignorantia juris non excusat (“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.
While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. InMinister for Finance v CPSU and Ors[2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.
By application of that principal the Court cannot accept that an extension can be granted in this case. The Court has therefore concluded that no exceptional circumstances apply in relation to the within appeal such that the Applicant was prevented from giving notice of appeal within the time set out in the Act. The Court therefore cannot give a direction that a notice of appeal may be submitted after the expiration of the specified period, in accordance Section 44(4) of the Workplace Relations Act 2015.
Determination
The Court determines that the within appeal was made outside of the time limit set down at Section 44(3) of the Workplace Relations Act 2015 and consequently the Court does not have jurisdiction to hear the appeal.
The Court so Determines.
Signed on behalf of the Labour Court
JD______________________
31 August, 2016.Caroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.