TED1726

The Adjudication Officer found that the complaint was not well founded.

The case

It is common case that the Claimant commenced employment with the Respondent in December 2005. She took up a position as a Merchandiser in 2007 and the Respondent supplied the Claimant with a written Statement of Employment in November 2007.

The Complainant contends that she was not supplied with notification in writing of the detail and date of changes to that statement when the nature of her terms and conditions of employment changed in 2011 or at any time since. She contends that a failure to provide such notification is a contravention of the Act at Section 5.

The Act at Section 5 in relevant part provides as follows:

• 5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

  (a) 1 month after the change takes effect,

The Respondent submitted to the Court that a preliminary matter relating to the jurisdiction of the Court in respect of the within appeal required consideration.

The Respondent submitted that the Court had no jurisdiction to hear the appeal because the document which was submitted to the Court did not identify a respondent and did not contain the detail set down in the Rules of the Court for the making of an appeal.

The Appellant submitted that, notwithstanding the absence of detail on the appeal form submitted, the Court should accept the appeal as valid and consequently the Court should accept jurisdiction with respect to the appeal.

The Court considered this issue as a preliminary matter.

The Law as regards the making of an appeal under Section 44 of the Workplace Relations Act, 2015

The Workplace Relations Act, 2015 (the Act of 2015) provides at Section 44 provides in relevant part as follows:

• 44. (1) (a) A party to proceedings under section 41 may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall—

  (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

  (ii) make a decision in relation to the appeal in accordance with the relevant redress provision, and

(b) In this subsection “relevant redress provision” means—

• (i) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a complaint under that section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5 , the provision of that enactment specified in Part 2 of Schedule 6 ,

  (ii) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5 , the provision of that enactment specified in Part 2 of Schedule 6 and

  (iii) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a complaint under subsection (3) of that section, paragraph 2 of Schedule 2 to the Act of 2012.

  (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.

• 32. The appeal shall be initiated by notice in writing delivered to the Court within 42 days from the date of the decision being appealed.

  33. The notice shall be given on a form provided by the Court for that purpose.

  34. The notice shall contain the following particulars: -

  (a) The name, phone number, address and email address of the Appellant;

  (b) The name, phone number, address and email address of the Appellant’s

  representative if any;

  (c) The name, phone number, address and email address of the Respondent;

  • (d) The name, phone number, address and email address of the Respondents representative if any;
  (e) The grounds of appeal.

  35. The notice of appeal shall be accompanied by a copy of the decision of the Adjudication Officer to which the appeal relates.

Subsequent to the receipt of the document on 11^thJuly 2017 the Court engaged in correspondence and other engagement with the Appellant’s representative to point out the deficiency in the appeal documentation submitted. The Appellant’s representative, on her behalf, then submitted an unsigned form to the Court entitled‘Complaint under Section 20(1) of the Industrial Relations Act, 1969’,a form provided for the Court for the making of such complaints. That form was received by the Court on 8^thAugust 2017. Following receipt of that unsigned form the Court contacted the Appellant’s representative to advise of the need for a signature on such a form. A further copy of that form, signed, was received by the Court on 21^stAugust 2017. At that juncture the Court advised the Appellant’s representative that a complaint under Section 20(1) of the Industrial Relations Act, 1969 could not constitute an appeal of a decision of an Adjudication Officer made in accordance with the Act of 2015.

The Appellant’s representative ultimately submitted a complete appeal form which was received by the Court on 30^thAugust 2017 containing all prescribed information and accompanied by the decision of the Adjudication Officer to which the appeal related.

Immediately following the receipt of the complete appeal form containing the prescribed information the Court acknowledged to the Appellant’s representative the receipt of the appeal and advised the Respondent’s representative of the existence of an appeal.

Discussion and findings as regards the preliminary matter

The combined effect of s.44(2) of the Act and the relevant provisions of the Rules of the Court is to prescribe what is needed in order to validly initiate an appeal to the Court of a decision of an Adjudication Officer. The question before the Court in this preliminary matter is whether, in light of a substantial absence of prescribed detail, the Court can properly consider the document submitted by the Appellant so as to be received by the Court on 11^thJuly 2017, as a valid initiation of the appeal.

The Court, in considering this matter gave consideration to the decision of the Supreme Court inMonaghan Urban District Council v Alf-A-Bet Promotions Lts[1980] ILRM 64where it was held that a planning application did not comply with a mandatory statutory requirement and was therefore invalid. In his judgement in that case Henchy J stated

• I do, however, feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of the permission. In such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.

The Court cannot accept that such detail is, in the words of Henchy J“so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with”.

The Court finds that the Act of 2015 taken together with the Rules of the Court set out as a mandatory requirement the detail which must be supplied by an Appellant in order to initiate an appeal under the Act of 2015 at Section 44(1). The Court finds that the omissions of detail in the form submitted on 11^thJuly 2017 were such as cannot be regarded as insignificant or of such a nature that they can be overlooked when considering the mandatory burden on an Appellant when initiating an appeal under the Act of 2015. The Court therefore finds that the document received by the Court on 11^thJuly 2017 did not constitute a valid appeal of the decision of the Adjudication Officer.

In all of those circumstances the Court finds that no valid appeal was received by the Court within the period of 42 days set down in the Act at Section 44(3).

The Court did receive a completed appeal form on 30^thAugust 2017, more than 42 days after the issuing by the Adjudication Officer in the within matter.

The Act at Section 44(3) provides as follows

(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.

The decision of an Adjudication Officer which is the subject of the within appeal was made on 31^stMay 2017. An appeal of that decision, were it to be made within 42 days of the decision, would require to be received by the Court on or before 11^thJuly 2017.

No application has been made to the Court to make a direction in accordance with the Act of 2015 at Section 44(4) to extend the period during which an appeal may be made. The Court concludes therefore that the appeal received by the Court on 30^thAugust 2017 is out of time.

Determination

The Court determines that the within appeal was made outside of the time limit set down in the Act at section 44(3) and consequently the appeal fails and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
8 November 2017.______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.