UDD172

FULL RECOMMENDATION UD/16/117 DETERMINATIONNO.UDD172 ADJ-00001011 CA-00001435-001 SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : RS247 RESOURCES LTD (REPRESENTED BY MR. STEPHEN O'SULLIVAN B.L.) - AND - BOGDAN NEWMANN (REPRESENTED BY MR MICHAEL BRENNAN B.L. INSTRUCTED BY DUNNE LAW) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal of Adjudication Officer Decision No. ADJ-00001011.


BACKGROUND:

2. The employee appealed the Decision of the Adjudication Officer to the Labour Court on the 10 October 2016. A Labour Court hearing took place on the 9 December 2016. The following is the Court's Determination:


DETERMINATION:

This matter comes before the Court by way of a preliminary application by Mr Bogdan Newmann (the Appellant) 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.

In the within case the Adjudication Officer made a decision in relation to the complaint of the Appellant under the Unfair Dismissals Act, 1997 (the Act of 1997) against his employer, RS247 Resources Ltd (the Respondent) on 29^thAugust 2016. An appeal against that decision, were it to be made within the time limit specified at Section 44(3) of the Act, would require to be made no later than 9^thOctober 2016. The appeal was received by this Court on 10^thOctober 2016.

The Appellant 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 Appellant.

The Appellant stated in his submission to the Court that a ground of appeal was related to a contention that the Court, in establishing the time limit applicable to the within appeal, erred in identifying the 9^thof October as the date of expiry of the 42 day time limit provided at Section 44(3) of the Act. The Appellant confirmed to the Court at its hearing his acceptance that the Court had correctly applied the Act at Section 44(3) by reference to the Interpretation Act, 2005 (the Act of 2005) at Section 18(h). The Act of 2005 provides at Section 18(h) as follows:

18.—The following provisions apply to the construction of an enactment:

• (h) 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;

The Appellant 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 Appellant set out the relevant circumstances applying as follows:

• 
  •The decision of the Adjudication Officer issued on 29^thAugust 2016. At the time of receipt of the decision the Appellant was resident in Poland. He possesses limited English. His daughter in law provided a translation service ‘of sorts’. She had no legal training and therefore her understanding of legal concepts was ‘less than ideal’. The fact of the Appellant’s residency in Poland combined with the factors outlined above made the scheduling of calls and the giving of general legal advice difficult.

  •The notification of the appeal was posted to the Labour Court on 6^thOctober 2016 by registered post and the Appellant’s legal adviser 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. The Appellant’s legal advisor submitted that the Appellant had acted reasonably and that circumstances outside his control delayed the arrival of the notification of Appeal.

  •The Appellant’s legal advisor submitted at the hearing that the Appellant had advised his legal adviser on 27^thSeptember 2016 that he wished to appeal. It was submitted that the Appellant’s Counsel was unavailable at that point for stated reasons and that a new Counsel had to be sourced in order to prepare submissions to facilitate an appeal. Counsel ultimately prepared submissions associated with the appeal such that they were supplied to the Appellant’s solicitor on 4^thOctober 2016. The appeal was posted on 6^thOctober 2016.

The Appellant drew the Court’s attention to the decision ofEire Continental Trading Company Ltd v Clonmel Foods Ltd (1955) IR170wherein the Supreme Court considered time limits allowable for the lodgement of an appeal contained within the Rules of the Superior Courts. The Appellant contended that Mr Justice Lavery in his judgement, a judgement with which the Court agreed, outlined three conditions which ought to be satisfied, stating as follows:

• 1. The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

  2. He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of Counsel or Solicitor as to the meaning of the relevant rule was not sufficient.

3. He must establish that an arguable ground of appeal existed.

The appellant also drew the attention of the Court to the case ofJennifer Murphy v Aldi Stores (Ireland) Limited (EET043).

It was submitted that the Appellant had an intention to appeal within the permitted time as evidenced by the fact of postage on 6^thOctober, that there were issues in relation to communication between the Appellant and his legal advisors and that there were issues of delay on the part of An Post. The Appellant’s legal advisor submitted that these elements amount to more than a mere procedural mistake, or a misunderstanding in relation to the allowable time limits and that these practical difficulties faced by the Appellant amount to sufficient exceptional circumstances so as to allow the appeal.

Position of the Respondent

The Respondent contends that no exceptional circumstances applied which prevented the Appellant from giving notice to the Court of his appeal within the time limits allowed under the Act.

The Respondent submitted that the fact of a letter posted in Wexford on Thursday 6^thOctober not being delivered by An Post until Monday 10^thOctober is not in itself exceptional. The Respondent contends that the Appellant’s representative had alternative means available on 6^thOctober 2016 to ensure delivery to the Court of the Appeal on the next day.

The Respondent contended that the Appellant had already been afforded an extension of time in the within case and therefore was aware of time limits and the need to act expeditiously.

The Respondent submitted that delay by legal advisors cannot be regarded as exceptional circumstances and referred the Court to the case ofTyco Healthcare (Ireland) Limited v A worker EET 5/2002in support of that contention.

The Respondent contended that reference by the appellant toEire Continental Trading Company Ltd v Clonmel Foods Ltd (1955) IR170related to the Rules of the Superior Courtwherein the test considered by the Court was not a test related to the existence of exceptional circumstances and consequently the reference is not relevant.

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 burden of proof in establishing the existence of exceptional circumstances rests with the Applicant. To discharge that burden the Applicant must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) of the Act of 2015 exist and that those circumstances acted so as to prevent the applicant from lodging his appeal in time.

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 Appellant contends that difficulty in communication and geographical considerations contributed to a delay in forming a decision to appeal of the Adjudication Officer.

Notwithstanding those difficulties the Appellant submitted that a decision to appeal was conveyed to his legal representatives on 27^th September 2016. The delay, from 29^th August to 27^th September, was undoubtedly significant in terms of the time available to make an appeal which would be within the time limits set down by the Act at Section 44(3). The Court considered however that, notwithstanding any consideration of whether this element of delay was exceptional, and adapting the ratio of this Court in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) quoted above, it would be expeditious to decide whether the delay from 29^th August to 27^th September could be found to have prevented the Appellant from submitting an appeal within the time limit of 42 days as provided for in the Act at Section 44(3). In the event that the Court concludes that this element of delay did not prevent the making of an appeal within the time limit allowed it is not relevant to the within preliminary matter whether the circumstances applying during this period were exceptional in themselves.

The Court has concluded that this period of delay did not prevent the submission of an appeal by 9^th October 2016. The Court comes to this conclusion on the basis that a period of 13 days remained available to the Appellant’s representatives to submit the appeal on time at the point of notification to them by the Appellant of his decision to appeal.

The Court was advised at the hearing that further delay was caused by the unavailability on or about 27^th September 2016 of a particular Counsel (for stated reasons) and the fact that the solicitor for the Appellant had to secure alternative Counsel and to brief that alternative Counsel appropriately such that the Counsel could prepare the submissions necessary to make an appeal. The Court was advised that the process of securing Counsel and the subsequent preparation of legal submissions preparatory to the lodgement of an appeal caused a delay which persisted until Counsel supplied legal submissions on 4^th October 2016.

The Court notes that there is no requirement to make legal submissions at the point of lodging an appeal under the Act. The Court notes also that the Appeal documentation when received by the Court on 10^th October 2016 consisted only of a standard appeal form produced and made available by the Court. The standard form used in the within appeal had been completed by the Appellant’s legal advisor by the insertion of the words ‘employee’, ‘employer’, and ‘Unfair Dismissals Acts 1997 to 2007’. In addition the reference number of the Adjudication Officer’s Decision, the date of the decision, the date the Appellant’s employment began and the date the Appellant’s employment ended were inserted on the form. Finally, the form had been stamped with the stamp of the Appellant’s solicitor and signed in an indistinct manner with a specification that the entity completing the form was a solicitor for the Appellant. The form was accompanied by an unsigned letter, apparently from the Appellant’s solicitor, which stated simply

• • Please find attached form of appeal with copy of WRC decision attached. We will furnish written submissions within 21 days. In the meantime we await hearing with acknowledgement.

The documentation submitted by way of appeal demonstrated no characteristics or content which would suggest that the input of Counsel was required for its completion. The documentation also demonstrated an understanding on the part of the solicitor for the Appellant as regards the procedures of the Court and in particular that submissions are not required for a period of three weeks following lodgement of the appeal.

The Court cannot find that adequate explanation has been afforded as regards the element of delay from 27^th September to 4^th October 2016. In particular the submission made to the Court when set against the factual matrix of the content of the appeal documentation cannot support a finding that exceptional circumstances existed during that period which prevented the lodgement of the within appeal.

The appeal was posted by registered post on 6^th October 2016. The Court has not been supplied with any explanation of the delay from 4^th October 2016 to 6^th October 2016. The Court therefore is unable to make a finding that exceptional circumstances were in existence during that period such as to prevent the Appellant from lodging his appeal within the time limit allowed.

Finally, it is contended by the Appellant’s representative that delays in the postal delivery system which caused a letter posted in Wexford on Thursday 6^th October to be delivered on Monday 10^th October should be regarded as exceptional. The Court cannot accept that a delivery timeframe of this nature could be regarded as exceptional.

The Appellant has asked the Court to consider the Judgement of Lavery J in the case of Eire Continental Trading Company Ltd v Clonmel Foods Ltd (1955) IR170. The Appellant submitted that the Judgement outlined that the following three factors ought to be satisfied in consideration of the application of time limits

• • 1. The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

    2. He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of Counsel or Solicitor as to the meaning of the relevant rule was not sufficient.

3. He must establish that an arguable ground of appeal existed.

The Court acknowledges that Lavery J accepted that those three conditions were proper matters for the consideration of that Court in determining whether time should be extended but also found that

• • • • “they had to be considered in relation to all the circumstances of the particular case. In the words of Sir Wilfred Greene, M.R., in Gatti v. Shoosmith [1939] 1 Ch. 841 at 846 (a case resembling the instant one in many ways) “the discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised.”

In any event, this Court accepts the contention of the Respondent that the case of Eire Continental Trading Company Ltd v Clonmel Foods Ltd (1955) IR170 can be distinguished from the within case on the basis that the Court in that case was considering a test which was different to that before this Court which arises from the provisions of the Workplace Relations Act, 2015.

In all of the circumstances therefore the Court finds that the Appellant has not established that exceptional circumstances arose in this case such as to be regarded individually or collectively 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



Kevin Foley
LS______________________
16 January 2017Chairman



NOTE

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