UDD1864

FULL RECOMMENDATION

UD/18/73

DETERMINATIONNO.UDD1864

ADJ-00002882 CA-00003986-001

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

BOYNE VALLEY BOYNE VALLEY GROUP
(REPRESENTED BY ANNE O' CONNELL SOLICITORS)

- AND -

ANITA HARMON
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Mr Marie
Worker Member: Mr Hall

SUBJECT:
1. Appeal Of Adjudication Officer Decision No. ADJ-00002882

BACKGROUND:

2. The Claimant appealed the Decision of the Adjudication Officer ADJ-00002882 to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on 30 October, 2018. The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court by way of a preliminary application by Ms Cummins (the Complainant) relating to the time limit set out in the Workplace Relations Act, 2015 (the 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.

In the within case the Adjudication Officer made a decision in relation to the Complaint of the Complainant under the Unfair Dismissals Act 1997 against her employer, Boyne Valley Unlimited (the Respondent) on 9th March 2018. An appeal against that decision, were it to be made within the time limit specified at Section 44(3) of the Act, would require to be made no later than 19th April 2018. The appeal was received by this Court on 20^thApril 2018.

The Complainant seeks 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.

Position of the parties

The Complainant contended that exceptional circumstances can be demonstrated in the within appeal and that the Court consequently has the discretion to allow the within appeal to progress.

The Complainant set out the relevant circumstances applying as follows:

The Complainant was sent a copy of the Adjudication Officer’s decision on the 20^thMarch 2018 by email. Unbeknownst to the Union the Complainant’s computer was broken and she could not access her emails.

The Union Official when she returned from Annual leave on the 19^thApril discovered that the Complainant had not replied to her email. The Official made contact with the Complainant and explained the outcome and the option of appeal. The complainant after a long discussion with her Union Official decided not to lodge an appeal.

The following day the 20^thApril at about 1.00pm the Complainant contacted her Union Official to advise that she had changed her mind and wished to lodge an appeal. She was informed that the appeal was out of time but at her request the appeal was lodged.

The Complainant drew the Court’s attention to the decision inJoyce Fitzsimons-Markey v Gaelscoil Thulach ns nOg[2004] ELR 110 (cited inKylemore services Group/Home fare Services limited v Terrie Clarke)in support of their contention that the Complainant had made every effort to bring her appeal before the Court as soon as possible

The Respondent contends that no exceptional circumstances applied which prevented the Appellant from giving notice to the Court of her appeal within the time limits allowed under the Act. The Respondent submitted that the Complainant made an informed decision not to submit an appeal in circumstances where her appeal would have been on time. The fact that she changed her mind the following day does not constitute exceptional circumstances.

Discussion and conclusions.

It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court.

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 burden of proof in establishing the existence of exceptional circumstances rests with the Complainant. To discharge that burden the Complainant must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) of the Act of 2015 exist and that those circumstances acted so as to prevent the applicant from lodging her appeal in time.

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

In the within case the Complainant contends that the fact that the Complainant’s computer was broken and that she only became aware of the decision on the last day influenced her decision not to submit an application. On reflection over night she then decided she wanted to submit an appeal. It is the Unions view that this constitutes exceptional circumstances.

Applying the test for exceptional circumstances as set out above the Court finds that the Complainant has not established that exceptional circumstances arose in this case such as to be regarded as being of such a nature as to prevent the lodging of the within appeal within 42 days of the date of the decision of the Adjudication Officer.

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 Court does not have jurisdiction to hear the appeal.

Signed on behalf of the Labour Court

Louise O'Donnell
CC______________________
6 December, 2018.Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.