UDD1729

FULL RECOMMENDATION

UD/17/30

DETERMINATIONNO.UDD1729

ADJ-00000987 CA-00001156-001

SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

YERIA LIMITED T/A DUN NA NOG
(REPRESENTED BY GARTLAN FUREY, SOLICITORS)

- AND -

BOLANLE ADEGBITE
(REPRESENTED BY AARON SHEARER B.L., INSTRUCTED BY O' CONNOR BUCKLEY, SOLICITORS)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Mr McCarthy

SUBJECT:
1. Appeal Of Adjudication Officer Decision No: ADJ-0000987.

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 5 April 2017. The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court by way of a preliminary application by Yeria Limited T/A Dun na N’Og (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 of the Workplace Relations Commission (WRC) made a decision in relation to the complaint of Bolanle Adegbite (the Complainant) under the Unfair Dismissals Act, 1977 against her former employer, the Appellant, on 20^thOctober 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 30^thNovember 2016. The appeal was received by this Court on 16^thFebruary 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 on 30^thNovember 2015. A hearing of the complaint by an Adjudication Officer of the WRC was held on 24^thMay 2016. The decision of the Adjudication Officer in respect of that complaint was made on 20^thOctober 2016. The Appellant received no correspondence from the WRC regarding the complaint, the arrangement of a hearing or the decision of the Adjudication Officer to its registered address. Correspondence from the WRC to the Appellant was issued to an address wherein the Appellant carries on business. The Appellant did not attend the hearing of the Adjudication Officer. The Adjudication Officer found in favour of the Complainant and awarded her the sum of €20,000 in respect of her dismissal. The Appellant was contact by representatives of the Complainant at its registered address on 18^thJanuary 2017 seeking implementation of the decision of the Adjudication Officer. The appellant contacted the WRC and received documentation from the WRC on 24^thJanuary 2017 including copies of letters issued by the WRC to an address which was not the registered address of the Appellant. The Appellant had yet to receive a full copy of the decision of the Adjudication Officer at its registered address at the date of the hearing of the Court.
The Appellant made the within appeal on 16th February 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 properly at its registered address of the fact that a complaint had been made, or to notify it properly of the hearing of the within complaint or to advise it properly of 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 acknowledged that the decision of the Adjudication Officer was recorded as having been delivered to one of the addresses where the Appellant carries on business on 24^thOctober 2016 but submitted that this document was, for whatever reason, never transmitted to the registered address of the Appellant and consequently remained unknown to the Directors of the Appellant.

The Appellant contends that the Act at Section 6 sets out that documentation to be served under the Act must be served to the registered address of a company within the meaning of the Companies Acts or the Companies Acts 2014. The Appellant contended that the failure of the WRC to so serve various notices under the Act resulted in the existence of exceptional circumstances in this case.

Summary position of the Complainant.

The Complainant acknowledged that she had advised the WRC when making the within complaint that the address for correspondence to the Appellant was one of a number of addresses where the Appellant carried on business. She submitted that she should not be held responsible for administrative lapses on the part of the Appellant. She contended that the lapse of time involved in this matter meant that she had built up a legitimate expectation that the award of €20,0000 made by the Adjudication Officer would be met in full by the Appellant and would therefore be prejudiced by any application to ‘re-enter’ the matter. The Complainant submitted that she would be greatly prejudiced by having to present her case a second time.

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 at its’ registered address to advise of receipt of a complaint, to fail to notify the party at its registered address of the hearing of the matter and to further fail to notify a party at its registered address as to the decision of an Adjudication Officer in the case to which they are a party.
The Act at Section 6 provides as follows:

Service of documents

6. (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

- - - (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;
      (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or
      (d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner.
  (2) For the purpose of this section, a company within the meaning of the Companies Acts or the Companies Act 2014 shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

It is undisputed that the WRC corresponded with the Appellant at an address other than its registered address. The Court has concluded that it must be exceptional for the WRC to fail to adhere to the requirements of the Act at Section 6 in notifying a party as regards receipt of a complaint, the arrangements made for a hearing of the matter and ultimately the detail of the decision of the Adjudication Officer in the matter. To conclude otherwise would be to assume that the WRC, in the normal course, corresponds with parties to a complaint in a manner other than that provided for in the Act. Such a conclusion would not be reasonable.

The Court has concluded for the reasons set out above that exceptional circumstances existed in this matter and 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 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 her case. The Court notes the lapse of time involved in this matter but cannot accept that such a matter and its consequences can be taken by the Court to outweigh the obligation of the Court to apply the provisions of the statute on the terms in which they are set out.

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 16th February 2017.

The Court so determines.

Signed on behalf of the Labour Court

Kevin Foley
CO'R______________________
8th June, 2017Chairman

NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.