FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : NATIONAL UNIVERSITY OF IRELAND, GALWAY (REPRESENTED BY RONAN DALY JERMYN, SOLICITORS) - AND - PETER CREIGHTON DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No: DEC-E2016-120
BACKGROUND:
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on 28 October 2016. A Labour Court hearing took place on 20 January 2017. The following is the Court's Determination:
DETERMINATION:
Background to the Appeal
Mr Creighton (“the Complainant”) has been employed by NUIG (“the Respondent”) as a Lecturer in its Biochemistry Department since 1 September 1998. He submitted a complaint to the Workplace Relations Customer Service on 28 May 2015 alleging various breaches of the Employment Equality Act 1998 (“the 1998 Act”).
An Equality Officer investigated those complaints at a hearing held on 6 April 2016 and issued her decision (DEC-E2016-120) on 23 August 2016. She found that the Complainant had failed to make out aprima faciecase in respect of any of the alleged breaches that were the subject of his complaint. A copy of the Equality Officer’s decision was posted to the Complainant under cover of a registered letter on 23 August 2016 but was returned to the Workplace Relations Commission (“the WRC)” on 2 September 2016 as the Complainant was not present to receive the registered post at the address he had provided when submitting his complaint. The WRC then sent a second copy of the decision to the Complainant at the same address but by ordinary post on 6 September 2016. In any event, on the 27thof October 2016 the Complainant was at the premises associated with the address he had provided to the WRC and this is the date he submits on which he first came into possession of the Equality Officer’s written decision. By this date, the time permitted by the Act for bringing an appeal from a decision of an Equality Officer to this Court had passed. He, nevertheless, submitted a notice of appeal which was received by the Court on 28 October 2016 and wherein he requested the Court to extend the time period for lodging an appeal pursuant to section 44(4) of the WorkplaceRelations Act 2015 (“the 2015 Act”) on the basis that exceptional circumstances existed which prevented him from lodging his appeal within the statutory time frame for so doing.
Preliminary Issue
The Respondent furnished the Court with a very detailed written submission in advance of the hearing in support of its position that the Complainant did not havelocus standito pursue his appeal outside of the statutory 42-day time limit for bringing an appeal provided for in section 83 of the 1998 Act, prior to its substitution by section 17(1) of the National Minimum Wage (Low Pay Commission) Act 2015. The newly substituted section 83 of the 1998 Act came into operation on the date that the relevant provisions of the Workplace Relations Act 2015 were commenced i.e. 1 October 2015. The Respondent’s submission also dealt in some detail with the existing case law – largely of the Employment Appeal Tribunal – interpreting the meaning of the words “exceptional circumstances” as they are used in the Unfair Dismissals Act 1977.
It is clear to the Court that before it moves to determine whether or not the circumstances outlined by the Complainant constitute exceptional circumstances within the meaning of section 44(4) of the 2015 Act, the Court must first satisfy itself as to whether or not the Complainant herein can invoke section 44(4) in circumstances where his original complaint to the then Equality Tribunal was referred prior to the commencement of the relevant sections of 2015 Act on 1 October 2015.
Section 83 of the Workplace Relations Act 2015
Having considered in detail both parties’ written and oral submissions and having traced the somewhat convoluted sequence of amendments made to the Act of 1998 by both the Workplace Relations Act 2015 and the National Minimum Wage (Low Pay Commission) Act 2015, the Court is satisfied that it was not the intention of the legislature to retrospectively apply the new statutory redress scheme effected by the Workplace Relations Act to complaints referred to the Director of the Equality Tribunal prior to the commencement of that Act on the 1stof October 2015. The Court is reinforced in its conclusions in this regard by the wording of section 83(2) of the 2015 Act which provides:
- “(2) The amendment of the Act of 1998 effected by this section shall not apply in relation to a case referred to the Director of the Equality Tribunal under section 77 of that Act before the commencement of this section.”
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
2 May 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.