FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY HRS CONSULTANTS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No(s) ADJ -00000880.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and recommendation. On the 9 August 2016 the Adjudication Officer issued the following Recommendation:-
- Based on the evidence presented at the hearing by both parties, I find that the complaint is well founded. I order the Respondent to issue to the Complainant a copy of the Dignity at Work Policy so that he will be in a position to outline his complaints in line with the terms of this policy. If it is found that the complaints outlined by the Complainant could be considered as bullying and harassment in line with the policy, then an independent investigator should be appointed to follow out a full investigation into these complaints. This decision must be implemented within 6 weeks of the date of this decision.
The Employee appealed the Adjudication Officer’s decision to the Labour Court on the 6 January 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 21 February 2017.
DECISION:
The Claimant in this case seeks an extension of time to bring an appeal against a recommendation of an Adjudication Officer made under section 13(3) of the Industrial Relations Act 1969 as amended by Section 36(2) of the Industrial Relations Act 1990.
The Adjudication Officer issued his Recommendation on 9 August 2016. The Complainant appealed against that decision to this Court on the 10thJanuary 2017 outside of the 6 week statutory time limit for making appeals under the Act. The Complainant submits that there were reasonable grounds for the delay in bringing the appeal and asks the Court to extend time under the Act.
The Respondent objects to the appeal in its entirety. It submits that it has complied with the Adjudication Officer’s Recommendation and further submits that the Claimant is seeking to bring enforcement proceedings in the guise of an appeal under the Act. It further submits that the appeal is out of time and that the Court is statute barred from hearing the appeal.
Findings of the Court
The Law
Section 36(2) of the 1990 Act states
- (2) An appeal to the Court against the recommendation of a rights commissioner shall not be considered unless it is notified in writing to the Court within six weeks after the making of the recommendation.
The Complainant is implicitly contending that this section of the 1990 Act has been amended by the Workplace Relations Act 2015.
Section 44 of the 2015 Act states
- 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.
(b) In this subsection “relevant redress provision” means—
(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 undersubsection (2)may be given to it after the expiration of the period specified insubsection (3)if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.
However the scope of this section is limited to enactments specified in Schedules 5 and 6 of the Act. Section 36(2) of the 1990 Act is not included amongst the enactments mentioned therein. Accordingly the provisions of section 44(4) of the 2015 Act do not apply to “recommendations” issued under section 36(2) of the 1990 Act.
Moreover Section 36(2) makes no provision for an extension of time beyond the statutory 6 week time limit set out in the Act. As the Oireachtas decided not to vest such powers to extend time in the Court, as a creature of statute it has no authority to confer such a power on itself. Accordingly this Court must comply with the strict 6 week time limit set out in section 36(2) of the 1990 Act.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CO'R______________________
3 April 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.