FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : BLANCHARDSTOWN AREA PARTNERSHIP COMPANY LTD AREA PARTNERSHIP - AND - LORRAINE CUMMINS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00004871 CA-00006943-002
BACKGROUND:
2. This is an appeal of Adjudication Officer Decision made pursuant to Section 7(1) of the Payment of Wages Act 1991. The appeal was heard by the Labour Court on the 3 August 2017 in accordance with Section 44 of the Workplace Relations Act 2015. The following is the Court's Determination:
DETERMINATION:
This matter comes before the Court by way of a preliminary application by Ms Cummins (the Complainant) relating to the time limit set out in the Workplace Relations Act, 2015 (the Act) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. 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.
The Complainant seeks to have the Court direct, in accordance with Section 44(4) of the Act that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.
Position of the parties
The Complainant contended that exceptional circumstances can be demonstrated in the within appeal and that the Court consequently has the discretion to allow the within appeal to progress.
The Complainant set out the relevant circumstances applying as follows:
•The appeal form was scanned and sent from Siptu to Ms Cummins on 6thJune. The form was signed and returned to Siptu by email by Ms Cummins on the same date.•The notification of the appeal was sent to the Labour Court on 7thJune 2017 by registered post from the Siptu office (Liberty hall ) and Siptu on behalf of the Complainant’s stated to the Court that it was believed, based on past interactions with the An Post delivery service, that delivery would be effected the very next day. Siptu submitted that they on behalf of the Complainant had acted reasonably and that circumstances outside their control delayed the arrival of the notification of Appeal.
Siptu outlined their internal processes in relation to registered letters and indicated that their records reflected that the item was collected by a collecting officer from An Post on the 7thof June.Siptu contended that in these circumstances the fact that the appeal form was not received by the Labour Court until the 9thJune 2017 was an exceptional circumstance.
The Complainant drew the Court’s attention to the decision inJoyce Fitzsimons-Markey v Gaelscoil Thulach ns nOg [2004] ELR 110(cited inKylemore services Group/Home fare Services limited v Terrie Clarke(DEC-E2015-160) andStablefield Limited and Ana Lacramioara(DWT1714) in support of her submission that the unreliability of the registered post system amounted to exceptional circumstances which prevented her from bringing her appeal within 42 days.
The Respondent contends that no exceptional circumstances applied which prevented the Appellant from giving notice to the Court of her appeal within the time limits allowed under the Act.
The Respondent submitted that the fact of a registered letter posted on Wednesday 7thJune 2017 not being delivered by An Post until Friday 9thJune 2017 is not in itself exceptional. The Respondent contends that the Complainants representative had alternative means available to ensure delivery to the Court of the Appeal on the next day.
The Respondent submitted that the unreliability of the postal system cannot be regarded as exceptional circumstances and referred the Court to the case ofFrank Donaldson v South west Regional Tourism Authority UD 1309/2004andTim Daniel v Lyreco Ireland limited UD 2115/2010in support of that contention.
Discussion and conclusions.
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 an appeal notice 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.
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 Complainant contends that the fact a registered letter was not delivered the next day in circumstances where their experience had been that such an item would be delivered the next day satisfies the requirement under the Act.
It is contended by the Complainant’s representative that delays in the postal delivery system which caused a letter sent by registered post on Wednesday 7thJune to be delivered on Friday 8thJune should be regarded as exceptional.
In circumstances where An Post does not guarantee next day delivery for registered post, the Court cannot accept that a delivery timeframe of this nature could be regarded as exceptional.
In all of the circumstances therefore the Court finds that the Complainant has not established that exceptional circumstances arose in this case such as to be regarded as being of such a nature as to prevent the lodging of the within appeal within 42 days of the date of the decision of the Adjudication Officer.
Determination
The Court determines that the within appeal was made outside of the time limit set down in the Act at Section 44(3) and consequently the Court does not have jurisdiction to hear the appeal.
Signed on behalf of the Labour Court
Louise O'Donnell
JD______________________
9 August 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.