TED1712

FULL RECOMMENDATION

TE/17/12

DETERMINATIONNO.TED1712

r-157199-te-15

SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012

PARTIES :

BOBBY LUIZ T/A BOMBAY BAZAAR
(REPRESENTED BY IAN FITZHARRIS B.L., INSTRUCTED BY EUGENE SMARTT SOLICITORS)

- AND -

GORAN ZORIC
(REPRESENTED BY AOIFE SHEEHAN B.L., INSTRUCTED BY JAMES P EVANS SOLICITORS)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Ms Tanham

SUBJECT:
1. An appeal of an Adjudication Officer's Decision No r-157199-te-15.

BACKGROUND:

2. The Employer made a preliminary application to the Court relating to the time limit set out in the Workplace Relations Act, 2015 regarding the making of an appeal against the decision of an Adjudication Officer. A Labour Court hearing took place on 25 May 2017. The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court by way of a preliminary application by Bobby Luiz trading as Bombay Bazaar (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 Goran Zoric (the Complainant) under the Terms of Employment Information Act, 1994 against his former employer, the Appellant on 8^thJune 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 19^thJuly 2016. The appeal was received by this Court on 3^rdFebruary 2017.

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.

Background

The Complainant made a complaint to the then Labour Relations Commission in June 2015. The Workplace Relations Customer Services Unit, on behalf of the then Rights Commissioner Service of the then Labour Relations Commission wrote to the Appellant at the correct address in Dublin on 17^thAugust 2015 advising that the complaint was being forwarded to the Rights Commissioner Service, effectively for the arrangement of a hearing.

The Workplace Relations Commission has acknowledged in correspondence to the Appellant that ensuing correspondence intended for the Appellant was addressed and sent to an address in Cork. That address was unknown to and unconnected with the Appellant. The Workplace Relations Commission sent the notification of hearing on 18^thNovember 2015 to the address in Cork and subsequently issued the decision of the Adjudication Officer to the address in Cork. The Appellant had no communication from the Commission as regards the hearing or the subsequent decision.
The Appellant became aware of the decision of the Adjudication Officer upon receipt of a letter to its correct address from the Complainant on 7^thJanuary 2017 seeking implementation of the decision of the Adjudication Officer.

The Appellant made the within appeal on 3^rdFebruary 2017.

Summary position of the Appellant.

The Appellant contends that exceptional circumstances within the meaning of the Act at Section 44(4) exist in this case. Specifically the Appellant contends that the acknowledged failure of the Workplace Relations Commission to notify it of the hearing of the within complaint or the decision of the Adjudication Officer served to deprive the Appellant of an opportunity to be heard or to appeal the decision within the timeframe laid down in the Act at Section 44(3). The Appellant contends that such a sequence of events is exceptional.

Summary position of the Complainant.

The Complainant made no written submission to the Court but contended that, were the Court to make a direction as permitted by the Act at Section 44(4), the consequent appeal would be prejudicial to the Complainant on the basis that he would not be able to contest the facts of the case.
The Complainant also contended that the Appeal of the Appellant is without merit.

Discussion and conclusions.

In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [EET034] this Court gave extensive consideration to the meaning of the expression "exceptional circumstances". In that case the Court stated as follows:

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.)

Applying that approach to this case, the Court must consider if it is out of the ordinary course or uncommon for the Workplace Relations Commission to fail to communicate with a party to notify the party of the hearing of a case and to further fail to notify a party as to the decision of an Adjudication Officer in the case to which they are a party.

The Court has concluded that what occurred must be regarded as exceptional. Indeed the failure to notify the Appellant of a hearing denied the proceedings before the Adjudication Officer of the capacity to observe the principle of ‘audi alterem partem’, in essence the principle of allowing both parties to be heard.

The Court is further satisfied that the exceptional circumstances prevented the Appellant from making the within appeal in time.

Taking all of the above considerations into account the Court is satisfied that exceptional circumstances exist in this case and that the time limit set out in the Act should be extended so as to allow the making of the appeal.

The Court notes the concerns of the Complainant but is satisfied that a ‘de-novo’hearing of the matter under appeal, which is what a hearing of the substantive appeal shall be, will not deprive the Complainant of the opportunity to set out his case. The Court is further satisfied that it is not appropriate to consider the within application on the basis of an assessment of the merits of the position of either party on the substantive matter. Such deliberations will be the preserve of the Court hearing the substantive appeal.

Determination

The Court directs that the notice of appeal given under the Act at Section 44(2) may be given after the expiry of the period specified in the Act at Section 44(3) and up to 3^rdFebruary 2017.

The Court so determines.

Signed on behalf of the Labour Court

Kevin Foley
CR______________________
7th June, 2017Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.