FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : KEELINGS LOGISTICS SOLUTIONS UNLIMITED COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SUNNY ALEX OKEKE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00010124 CA-00013150-002.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17 May 2018. A Labour Court hearing took place on 13 December 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Sunny Alex Okeke against the decision of an Adjudication Officer ADJ-00010124, CA-00013150-002 under the Minimum Notice and Terms of Employment Act, 1973 against his former employer, Keelings Logistics Solutions Unlimited Company. The Adjudication Officer heard a claim under the Unfair Dismissals Acts 1977 – 2015 (the 1977 – 2015 Act) and found that Mr Okeke was not dismissed for gross misconduct, but for misconduct, therefore he should be entitled to minimum notice and accordingly found in his favour and made an award under the Minimum Notice and Terms of Employment Act, 1973 (the 1973 Act). The Adjudication Officer’s Decision was dated 5thApril 2018.
The Adjudication Officer found that the Complainant should be paid in lieu of his statutory notice entitlement based on a start date of 7thJuly 2005 and termination date of 7thJune 2017 and that his gross weekly wage was €800.00, as agreed between the parties.
For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Sunny Alex Okeke will be referred to as “the Complainant” and Keelings Logistics Solutions Unlimited Company will be referred to as “the Respondent”.
A hearing of this appeal was held on the same day as a hearing of an appeal of unfair dismissal by the Complainant against the Respondent under the 1977 – 2015 Acts. In its Determination, the Court concurred with the findings of the Adjudication Officer.
The Respondent appealed against the Adjudication Officer’s Decision under the 1973 Act, however, its appeal was referred to the Court on 17thMay 2018, one day late. The Respondent submitted that there were exceptional circumstances for the delay in submitting its appeal under the 1973 Act. The Court considered the arguments put forward.
Background
The Complainant was employed by the Respondent from 25thJuly 2005 as a Warehouse Operative, until his dismissal on 7thJune 2017.
Preliminary Issue
The Respondent made an application to extend the time limit set out in the Workplace Relations Act, 2015 (the 2015 Act) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. 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 Respondent sought to have the Court direct, in accordance with Section 44(4) of the Act, that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.
Therefore, the Court will need to address the Employer’s application under Section 44(4) the Workplace Relations Act 2015 whether or not there were exceptional circumstances in existence for the Court to hear the case. SIPTU oppose the Employer’s application.
Summary of the Respondent’s Application
Mr Conor O’Gorman, Ibec, on behalf of the Respondent, contended that exceptional circumstances within the meaning of the Act at Section 44(4) exist in this case. Specifically, he contended that the Respondent was prepared to accept the outcome of the Adjudication Officer’s Decisions both under the 1977- 2015 Acts and the 1973 Act and therefore did not appeal those decisions.
Mr O’Gorman said that there had been discussions with Mr Cullen SIPTU, which had led the Respondent to believe that matters were agreed with the Complainant, such that there was no necessity on its part to lodge an appeal.
However, when it was notified that the Complainant had appealed the Adjudication Officer’s decision under the Unfair Dismissals Acts on 16thMay 2018, the Respondent submitted an appeal of the Decision regarding minimum notice. However, at that point, the time for lodging the appeal had expired (the previous evening), nevertheless, it immediately submitted its appeal to the Court. Therefore, the Respondent’s appeal under the 1973 Act was referred to the Court on 17thMay 2018, one day late. On that basis, Mr O’Gorman submitted that there were exceptional circumstances excusing the delay.
Summary of the Complainant’s Arguments on the Preliminary Issue
Mr Vivian Cullen, SIPTU, on behalf of the Complainant, told the Court that when he received the Adjudication Officer's Decision on the two cases which were heard on 4thJanuary 2018, he had difficulty contacting the Complainant as he had changed his address. Therefore, when the Complaint eventually made contact with Mr Cullen, it was on the eve of the deadline date for submission of an appeal, therefore the Complainant’s appeal of the decision under the 1977 – 2015 Act was referred to the Labour Court at the very last minute. Mr Cullen submitted that it had in no way impeded the Respondent from lodging an appeal in time.
Findings and Conclusions of the Court
The burden of proof in establishing the existence of exceptional circumstances rests with the Respondent. To discharge that burden the Respondent must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) of the Act exist and that those circumstances acted to prevent the applicant from lodging his appeal within time. The Respondent was satisfied to accept the outcome of the Adjudication Officer’s Decision in the unfair dismissals case. While the Adjudication Officer found that the Complainant was not dismissed for gross misconduct, she was satisfied that the dismissal was fair. The consequences of this finding, meant that the Complainant had a successful claim under the 1973 Act for minimum notice. The Respondent told the Court that it was prepared to accept this finding and pay the Complainant the monies due. That was the case until it found out the day after the deadline date for referral of an appeal that the Complainant had lodged an appeal under the unfair dismissals legislation the day before.
The Court notes the sequence of events as outlined by the Respondent’s representative. In all the circumstances, the Court finds that the failure to lodge the appeal within time was due to existence of no appeal having been lodged by the Complainant before the expiry of the statutory time limit. The Court is not satisfied that this amounts to exceptional circumstances within the meaning of section 44(4) of the 2015 Act.
Determination
The Respondent’s application to extend time for bringing the appeal is refused. The decision of the Adjudication Officer is, therefore, affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20 December 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.