UDD179

The Facts

The Adjudication Officer issued a decision on 8^thAugust 2016. An appeal of that decision, if one were to be made within the time limit of 42 days specified in the Act at Section 44(3), would require to be received by the Court by 19^thSeptember 2016.

The Court received an incomplete and unsigned appeal document on 9^thDecember 2016. A complete and signed appeal was received by the Court on 12^thJanuary 2017.

The Law

The decision of the Adjudication Officer in this case issued on 8^thAugust 2016. Therefore the within application is considered by the Court in accordance with Section 44 of the Workplace Relations Act, 2015 (the Act).

Section 44 of the Act in relevant part provides as follows:

• 44. (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.

Position of the Applicant

The Applicant stated to the Court that he had not been aware of the hearing of the Adjudication Officer which resulted in the decision of 8^thAugust. The Applicant stated that, following his receipt of the decision of the Adjudication Officer, he had communicated with the Workplace Relations Commission to seek guidance as to how he might appeal that decision and that this communication took place within 42 days of the 8^thAugust 2016. The Applicant stated that he had subsequently written to the Court on a date unspecified clarifying that he had been unable to attend the hearing of the Adjudication Officer. The applicant asserted at the hearing that he understood that this letter would be taken by the Court as an appeal. The Applicant was unable to supply the Court with a copy of this letter or to specify a date upon which it issued other than to say that was in a time period close to or shortly after the expiry of the time limit for the making of the within appeal. The Applicant, subsequent to the hearing of the Court, confirmed that in fact he had written at this time to the Workplace Relations Commission and not to the Court.

The Applicant further contended that he contacted the Workplace Relations Commission on an unspecified date subsequent to the issue by him of the letter referred to above and came to understand at that point that he should have given a notice of appeal to the Court. The Applicant stated to the Court that he then sought legal advice and made a formal appeal. The Applicant confirmed to the Court that this appeal was the unsigned and incomplete appeal document received by the Court on 9^thDecember 2016.

Position of the Complainant

The Complainant did not attend the hearing of the Court and was not represented at the hearing. The Court is satisfied that the Claimant was properly notified of the date, time and location of the hearing.

Discussion

In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110 this Court gave extensive consideration to the meaning of the expression "exceptional circumstances". In that case the Court stated as follows:

• “The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act. That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another.”

The Court went on to state

• “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.”

In the within case the Applicant has stated that he wrote to the Court outlining why he did not attend the hearing of the Adjudication Officer. The Applicant was unable to give any details of date of issue of this letter and was unable to supply a copy to the Court at the hearing. The Applicant subsequently confirmed that this letter had in fact issued to the Workplace Relations Commission. In any event the Applicant asserts that this correspondence issued sometime close to the date of expiry of the time limit specified in the Act for the making of an appeal. The Applicant set out no reasons for the subsequent failure to confirm or otherwise ensure that he had, in fact, made an appeal to the Court. The Applicant merely asserted to the Court that he had received no reply to the letter he asserts that he issued and that some time later he spoke with the Workplace Relations Commission, engaged legal advice and lodged an appeal. A complete set of appeal documentation was received by the Court on 12^thJanuary 2017.

Decision

The Court has considered the detail of this matter as submitted by the Applicant. The Court has not been able to ascertain the existence of exceptional circumstances such as to prevent the making of the within appeal within the time limit set out in the Act at section 44(3).

In all of the circumstances the Court finds that the existence of exceptional circumstances has not been established such that the Court should direct that a notice under Section 44(2) of the Act may be given to it after the expiration of the period set out in Section 44(3) of the Act.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
9 March, 2017______________________
CCChairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.