DWT1714

On 17 August 2016 she submitted a number of complaints under the National Minimum Wage Act 200, the Organisation of Working Time Act 1997and the Payment of Wages Act 1991 to the Workplace Relations Commission.

Having given the parties an opportunity to set out their respective positions at a hearing convened under those acts the Adjudication Officer issued her decision on 1 March 2017.

The Complainant appealed against that decision to this Court on 11 April 1 day outside the 42 day time limit for bring an appeal under the Act.

The Complainant sought an extension of time pleading "exceptional circumstances".

The Court heard the parties on this preliminary point on Friday 9 June 2017.

Position of the Parties

The Complainant submits that she sought the assistance of the Migrant Rights Centre Ireland (MRCI) to help her prepare an appeal against the decision of the Adjudication Officer. It consulted one of its legal advisors who advised that there were grounds for an appeal and directed the MRCI on the preparation of the appeal.

It sent the relevant documents to the Complainant.

She attempted to complete the documents and return them to the MRCI. However she had provided them with an incomplete form and it returned them to her for signature. The Complainant signed the document and sent a photograph of the signed document to the MRCI electronically.

All of this took time and as a result the final document was available to the MRCI on the 42^ndday of the time limit to bring an appeal.

The MRCI understood that provided it sent the documents to the Labour Court by Registered Post before the time limit expired, it would be in time. The documents arrived with the Labour Court one day out of time.

MRCI submits that the Complainant is pregnant and was employed in the fast food industry some 20 miles from her home. It submits that the long hours the Complainant works, her condition and the daily commute took its toll on the complainant and militated against her capacity to return the forms in time.

MRCI advised the Court that it does not, as a matter of course, take responsibility for processing an employment claim for one of its individual clients and is not practiced in that regard. However, MRCI endeavoured to do so on this occasion. MRCI submits that its expertise is limited and that it relies on the support of legal professionals operating on a pro bono basis. In this case this took some time to organise and delayed the completion of the forms. It further submits that it was unaware that it could submit the forms to the Labour Court by email and had it known this it would have done so. Instead it posted the forms within the 42 day deadline believing it was complying with the requirements of the Act.

It submits that the delay in making the appeal is minimal and taken together the circumstances that apply in this case constitute exceptional circumstances within the meaning of the Act and asks the Court to extend time

The Respondent submits that the Complainant was aware of the statutory time limits, was well advised by the MRCI and had the benefit of legal advice. She was computer literate and could have submitted the form to the Labour Court by email had she so decided to do. It submits that pregnancy is not an illness and it is settled law that on its own it does not constitute grounds for extending time for the bringing of appeals under the Act.

It submits that the Complainant has failed to show that there were exceptional circumstances in this case and that those circumstances prevented her making an appeal in good time under the Act. It submits that in the absence of meeting those tests the Court cannot grant an extension of time.

The Complainant seeks an extension of time arguing that exceptional circumstances prevented her from filing her appeal within the statutory time limit.

The Law

Subsections (3) and (4) of section 44 of the 2015 Act provide:

(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.”

This Court has, in a number of cases, considered the application of the test to determine whether exceptional circumstances apply. InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110(cited inKylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) the Court stated:

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

Findings of the Court

Applying that test to this case the Court must determine whether the Complainant has established the existence of exceptional circumstances and whether the delay in delivering the appeal to the Court was due to the existence of those exceptional circumstances.

In determining this matter the Court has considered the extensive written and oral submissions of both sides in this case.

The Court notes the totality of the circumstances relied upon by the Complainant. In doing so the Court finds that the Complainant made every effort to bring her appeal to the Court within the statutory time limit and relied on the MRCI to deliver the relevant notice. The Court notes in particular that the Complainant submitted the signed form electronically to the MRCI in time for the MRCI to submit it to the Labour Court on time. The Court further notes that the MRCI does not ordinarily process employment claims for individual clients and is not practiced in this area. It acted to the best of its ability but ultimately failed to meet the statutory deadline in this case.

MRCI mistakenly believed that it could not send the appeal to the Court by email and as a consequence sent it by registered post within the statutory time limit. However the form arrived outside the statutory time limit.

In response to a question from the Court the Respondent’s representative stated that the delay in this case was minimal and any decision to extend time would not prejudice his client.

In those circumstances, and taking the full extent of the Complainant’s circumstances into account, including the efforts to which she went to submit her appeal within time and the role played by MRCI, the Court is satisfied that the circumstances applicable here amount to exceptional circumstances within the meaning of the Act.

Accordingly the Court exercises its discretion to extend time for the bringing of the appeal in this case.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
20 June 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.