FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : MAC ARDLE MCSWEENEY ASSOCIATES - AND - DESMOND EGAN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00001237.
BACKGROUND:
2. The Claimant appealed the decision of the Adjudication Officer to the Labour Court on the 14 August 2017. A Labour Court hearing took place on the 9 March 2018. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Des Egan against the Decision of an Adjudication Officer in his claim against his former employer, Mac Ardle McSweeney Associates under the Redundancy Payments Acts 1967- 2014 (the Acts) for a statutory redundancy payment. The Adjudication Officer held that a redundancy situation did not arise in the case and accordingly found that the claim was not well-founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Des Egan will be referred to as "the Complainant" and Mac Ardle McSweeney Associates will be referred to as "the Respondent".
The Facts
The Complainant referred a complaint under the Acts to the Workplace Relations Commission on 22ndDecember 2015. The hearing was held on 17thMay 2016, The Adjudication Officer issued his Decision on 28thMarch 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 8thMay 2017. The Complainant appealed the decision of the Adjudication Officer by notice received by the Court on 14thAugust 2017- 99 days out of time.
Preliminary Issue
The Complainant accepted that he did not lodge his appeal within the 42-day period, but submitted that exceptional circumstances prevented him from doing so. The Respondent said that it was up to the Court to decide on whether or not the circumstances as described by the Complainant constitute exceptional circumstances. The Court considered the issues of whether or not exceptional circumstances applied in this case, as a preliminary issue.
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 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.
The Complainant told the Court that the delay in submitting his appeal to the Court was caused by the Adjudication Officer’s Decision being sent to his Solicitors Office and not to him. He said that he had a highly regarded law firm handling his case. However, the Solicitor directly dealing with his case left the firm in early 2017, during the time the Adjudication Officer’s Decision was awaited. This led to the Decision not been passed on to him. He said that in June 2017, when he requested an update from the Solicitors firm he discovered that the Decision had been issued at the beginning of April and that an email notification had been sent to him, however, the incorrect email address was used to notify him.
Court’s findings and conclusion
The Court notes that on 19thJune 2017 the Complainant discovered that the Adjudication Officer’s Decision had been issued. On that date, he learnt that he had lost his case before the Adjudication Officer and he sought legal advice on his next step. On 14thJuly 2017, knowing that it was too late to appeal he sought legal advice from his Solicitors on how to submit a late appeal. However, he then went on holidays until 30thJuly 2017 and did not submit the appeal to the Court until 14thAugust 2017. At this point the appeal was 99 days late and it was six weeks since he discovered the outcome of the Adjudication Officer’s hearing.
Exceptional Circumstances
The Court must first consider if the circumstances relied upon by the Complainant 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 him from lodging his 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 seeR v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.
Applying that understanding of the term to the facts of the instant case the fact that the Solicitors’ office sent the Decision to the incorrect email address may be regarded as exceptional, however, the existence of exceptional circumstances alone cannot avail the Complainant. He must also show that the reason why notice of his appeal was not given within the time provided was due to exceptional circumstances preventing him from presenting his complaint in time.
The Court notes that a firm of Solicitors were handling his case, the Solicitor directly dealing with his case had left the firm, but others were available to ensure that he was informed of the Adjudication Officer’s Decision and there was an onus on him to monitor the situation. The Court notes that when he did discover that the Decision had been issued at the beginning of April 2017, he delayed in lodging his appeal by another six weeks.
Decision.
Having regard the submissions advanced on behalf of the Complainant, and in all the circumstances of this case, the Court is of the view that he has not offered a justifiable excuse for the delay in all the circumstances. The Appeal, therefore, fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
09 April, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.