FULL RECOMMENDATION
SECTION 10 (1), INDUSTRIAL RELATIONS (MISCELLANEOUS PROVISIONS) ACT, 2004 PARTIES : IRISH PRISON SERVICE REPRESENTED BY DAVID DODD, B.L., INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE - AND - A WORKER (REPRESENTED BY ALAN BRADY, B.L., INSTRUCTED BY GALLAGHER SHATTER, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer Recommendation Nos. r-159905-ir-15/r-159923-IRM-15/RG.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and recommendation. The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 8 March 2017 in accordance with Section 10(1) of the Industrial Relations (Miscellaneous Provisions) Act, 2004.
A Labour Court hearing took place on the 25 April 2017.
DETERMINATION:
This is an application to the Court by Mr Gabriel Keaveny (the Applicant) for an extension of time to bring an appeal to the Court of a Decision of an Adjudication Officer/Rights Commissioner r-159905-ir-15/RG and r-159923-IRM-15/RG taken under theIndustrial Relations (Miscellaneous Provisions Act) 2004 (the 2004 Act) and the Industrial Relations Act 1990 (Code of Practice on Victimisation) (Declaration) Order 2004 (SI 139 of 2004) (the 2004 Code) against the Irish Prison Service (the Respondent). The Adjudication Officer/Rights Commissioner found that she had no jurisdiction to hear the complaints as she found that the Complainant does not come within the definition of a “worker” under the 2004 Act and the 2004 Code.
The Facts
The Adjudication Officer/Rights Commissioner issued her Decision on 25th January 2017. An appeal of that decision, if one were to be made within the time limit specified in the Workplace Relations Act 2015 of 42 days, would require to be received by the Court on 7thMarch 2017.
The Applicant appealed the Decision of the Adjudication Officer by notice received by the Court on 8th January 2017.
The Law
The within application is to be considered in accordance with the provisions of Section 44 (2) (3) and (4) of the Workplace Relations Act 2015 (the 2015 Act).
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.
Summary of the Applicant’s Case
Mr Alan Brady, B. L., instructed by Gallagher Shatter, Solicitors, on behalf of the Applicant, submitted to the Court that exceptional circumstances existed in this case. Mr Brady told the Court that the Applicant’s Counsel was of the understanding that the deadline date for submission of the appeal was 8th March 2017. He explained that this mistake arose due to the confusion between the different methods of counting time periods under the 2015 Act and those that apply under Order 122 Rule 10 of the Rules of the Superior Courts 1986 as the latter provide that, when counting time periods, the first day is excluded and the last day is included. By such reckoning, the time in this case would have expired in this case on 8th March 2017.
However, Mr Brady noted that inRS247 ResourcesvNewmann(UD/16/117) the Labour Court held that, in accordance with section 18 of the Interpretation Act 2005, the day of issuing an Adjudication Officer's Decision is to be counted as part of the time limit. He accepted therefore that the time did in fact expire on 7th March 2017 in this case.
Mr Brady submitted that there were a number of factors which contributed to the lodging of the notification of the appeal on 8th March 2017 - the level of complexity in the first instance decision; due to this complexity it was necessary to have consultation and advice from Senior Counsel; consideration was being given as to whether or not judicial review proceedings would be necessary; the issues arising had ramifications for the Prison Officers Associations as a whole as opposed to the Applicant alone; the absence of prejudice to the Respondent by being one day late and a genuine mistake was made regarding the expiry of the time to appeal.
In support of the Applicant’s application, Mr Brady submitted that it is important tohave regard to the leading case in this jurisdiction on the principles to be applied for the extension of time to bring an appeal. In that regard, he citedEire Continental TradingCo LtdvClonmel FoodsLtd[1955] IR170.Mr Brady heldthat the circumstances in the instant case meet all of the criteria in theEire Continentalcase, viz. (i)that the intention to appeal was formed within the relevant time period, (ii) that the failure to bring the appeal within time was due to an element of mistake and (iii) that there is a substantive issue to be tried.
Summary of the Respondent’s Position
Mr David Dodd, B.L., instructed by the Chief State Solicitor’s Office on behalf of the Respondent, submitted that there were no circumstances mentioned in the Applicant’s submission to the Court which met the required criteria for exceptional circumstances in accordance with Section 44 (4) of the Workplace Relations Act 2015. He referred to the fact that nogrounds of appeal were outlined in the Labour Court Appeals Form contending that the Appellant is not employed by the State. Instead it states that theappeal was lodged on a protective basis in circumstances where the statutory time limit to lodge the appeal is about to expire.
Mr Dodd disputed the Applicant’sinvocation of the High Court rules as he maintained that those Rules do not govern appeals to the Labour Court - section 44(3) of the 2015 Act does. Furthermore, he disputed the Applicant’s contention that his application is governed by the three tests laid down in theEire Continentalcase and that the Applicant satisfies those tests. In the first instance he maintained that theEire Continentalcase concerns the exercise of a broad discretion –
- "the discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised".
Mr Dodd stated that had the Oireachtas intended that the appeal be given out of time discretion in accordance withEire Continental,it would have adopted the language from the 1986 rules. He said that Section44(4) of the 2015 Act is enacted as it is precisely because the Oireachtas intended thatextension of time would only apply in exceptional circumstances.
In any event Mr Dodd contended that the Applicant does not satisfy the tests set down inEire Continentalas:-
(i) The first test was only partially relied upon by the Applicant. The Applicant must show that he had abona fideintention to appeal formed within the permitted time - a genuine intention to appeal the decision whereas the Applicant’s Appeal Form made it clear that the notice was being issued'on a protective basis in circumstances where the statutory time to lodge the appeal is about to expire'.He said that thereforethe appeal was lodged to preserve a right of appeal which may or may not be pursued in due course.
(ii) The Applicant under this heading, proceeded on the basis that
the appeal was in time, and, if not, it was a mistake caused by the website of the Workplace Relations Commission. Mr Dodd disputed this assertion as the provision of Subsection (4) are widely available to be consulted and the cover letter of the 25th January 2017 from the Workplace Relations Commission attached to the Decision outlined the method of appealing the Decision and made it clear:"An appeal must be lodged not later than42days from the date of the Decision ...".
(iii) The Appellant misquotes the third element oftheEire Continentaltests.It is not whether or not there is a "substantive issue to be tried" but rather it is whether "an arguable ground of appeal exists". Mr Dodd stated that in the absence of a formulated ground of appeal to the effect that the Appellant is not employed by the State then any appeal is doomed to fail and the application should not be permitted.
Conclusions of the Court
In order to consider an appeal of this nature the Court must be satisfied that the failure to lodge the notice of appeal before the due date was due to existence of exceptional circumstances.
The Court addressed the issue of “exceptional circumstances” in its decision, albeit in a case under a different statute, inGaelscoil Thulach na nOg and Joyce Fitzimons-Markey(EET034) as follows:-
- “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.”
The Court accepts that the facts of any case are unique to itself and that the application of the law to the within case must be in the context of the circumstances arising in this case.
The Court was informed by Mr Brady that a decision was made to appeal Adjudication Officer/Rights Commissioner’s Decision midway through the 42 days in question. The appeal form was signed on behalf of the Applicant on 7th March 2017 and was handed into the Court on 8th March 2017, one day out of time. Having considered the reasons submitted by the Applicant, it appears to the Court that while there were a number of factors in this case, none of these factors taken either together, individually or in any combination explain the delay. The Court is satisfied that the only reason for missing the deadline date was due to the miscalculation of the due date for receipt of the appeal by the Court. The Court notes that, besides the statutory requirement as outlined in section 44 (3) of the 2015 Act, on the face of the Appeal Form it clearly states that“the date of the Decision of the Adjudication Officer will count as day one of the 42 days”.
The Court cannot accept that failure to ensure its delivery on time comes within the criteria of “exceptional circumstances” where no other factors were advanced to explain why it was not presented to the Court on 7thMarch 2017.
In Galway & Roscommon ETB UDD1624, the Court found as follows:-
- “The Court cannot accept that a miscalculation of the due date amounts to “exceptional circumstances” as defined by Section 44(4) of the Workplace Relations Act 2015. The miscalculation of the deadline date is akin to a misinterpretation of the statutory provisions. The Court is satisfied that the legal principleignorantia juris non excusat (“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.
While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. In Minister for Finance v CPSU and Ors [2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.”
By application of that principle the Court cannot accept that an extension can be granted in this case. The Court has therefore concluded that no exceptional circumstances apply in relation to the within appeal such that the Applicant was prevented from giving notice of appeal within the time set out in the Act. The Court therefore cannot give a direction that a notice of appeal in this case may be submitted after the expiration of the specified period in accordance Section 44(4) of the Workplace Relations Act 2015.
Determination
The Court determines that the within appeal was made outside of the time limit set down at Section 44(3) of the Workplace Relations Act 2015 and consequently the Court does not have jurisdiction to hear the appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
10 May, 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.