UDD1740

The Applicant submits that exceptional circumstances prevented it from referring the appeal within the 42-day period. The Complainant 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

Mr Tommy Gilson, Manager of the Services, on behalf of the Applicant stated that the appeal was sent by registered post on 16^thJune 2017 at 9.32am, thereby expecting it to arrive the following day. He said that it was the first time the company had engaged with the Court and therefore were not aware that the 42 day notice period included weekends. Finally, it stated that the person overseeing the appeal had been on sick leave from 6^thto 14^thJune 2017 and that this impacted on the company preparing the appeal.

Mr Bernard Daly, Unite the Union, on behalf of the Complainant, disputed the Applicant’s contention that it expected the envelope to be delivered by An Post before the expiry of the 18^thJune 2017. He said that a cursory glance of the An Post website would show that the use of the Express Post (and not registered post) would ensure delivery within 24 hours. He made reference to the fact that all Adjudication Officer Decision’s include a covering letter from the WRC which specifically states that an appeal must be lodged not later than 42 days from the date of the Decision and he submitted that a phone call to the WRC would have clarified the position.

Mr Daly disputed the contention that the absent person was the only person in a position to complete the appeal form. He suggested that it is both simple and straightforward and could have been handled by someone else either internally or externally.

On the basis of the foregoing, Mr Daly contended that no exceptional circumstances exist and that the Court should not accede to the Applicant’s application to extend the time for bringing his appeal.

The Law

The within application is to be considered in accordance with the provisions of Section 44 (2) (3) and (4) of the 2015 Act.

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

• 
  i.Despite being registered, the Court cannot accept that an envelope posted on a Friday could be expected to be delivered over the weekend. An Post operate a “Same Day Delivery” service, this was not availed of.

• ii.The Applicant stated that it was of the mistaken belief that the date for receipt by the Labour Court was within 42 working days of the Adjudication Officer’s Decision, as opposed to 42 calendar days. The Court cannot accept that a miscalculation of the due date of the appeal amounts to “exceptional circumstances” as defined by Section 44(4) of the 2015 Act. Both the communication from the WRC and the Labour Court’s appeal form provides clear instruction on the calculation of the date. This miscalculation of the deadline date is akin to a misinterpretation of the statutory provisions. The Court is satisfied that the legal principleignorant juris non excusal(“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 OR’s[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.

• 
  iii.The Adjudication Officer’s Decision was issued to the parties on 8^thMay 2017; four days later the Union sought implementation of the award to the Complainant. The Court is of the view that the Applicant was fully aware of the implications of the Adjudication Officer’s decision at that stage and has sufficient time to lodge the appeal. A Board meeting was held in the first week in June, yet the appeal was not submitted until 16^thJune 2017. It is difficult to see how the absence of the Manager from 6^thto 14^thJune 2017 could have impacted on the delay in submitting the appeal.

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



Caroline Jenkinson
LS______________________
8 August 2017Deputy Chairman



NOTE

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