DWT183

FULL RECOMMENDATION

WTC/17/68

DETERMINATIONNO.DWT183

ADJ-00006896 CA-00009334-001/002

SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

TA HOTELS LTD LYNAMS HOTEL

- AND -

PREETI KHOOSYE
(REPRESENTED BY MICHAEL MCCORMACK B.L., INSTRUCTED BY WILLIAM FRY, SOLICITORS)

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Ms Doyle
Worker Member: Mr McCarthy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no: ADJ-00006896.

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 27 September 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 12 January 2018. The following is the Decision of the Court.

DETERMINATION:

The Complainant lodged complaints with the WRC on 26^thJanuary 2016 under the Organisation of Working Time Act 1977, the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994 and the Redundancy Payments Acts 1967. The complaints were heard on the 19^thApril, 2017 and the Respondent failed to appear. The Adjudication Officer issued a decision upholding each of the complaints on the 6^thJuly 2017. The Respondent by letter of the 27^thSeptember 2017 appealed the decisions. The appeal was submitted outside of the statutory time limit. A hearing of the Court was scheduled for 12^thJanuary 2018. At that hearing both parties agreed that the Court would deal with the time limits as a preliminary issue. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Andreucetti is referred to as the Respondent and Ms Preeti Khoosye is referred to as the Complainant

This matter comes before the Court by way of a preliminary application by the Respondent 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 Organisation of Working Time Act 1977, the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994 and the Redundancy Payments Acts 1967 against her employer, the Respondent on 6^thJuly 2017. 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 16^thAugust 2017. The appeal was received by this Court on 27^thSeptember.

The Respondent 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 Respondent contends 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 Respondent set out the relevant circumstances applying as follows:

The Respondents business had to vacate the premises they were operating from on 1^stAugust 2016 on foot of a court order. In January 2017, they changed their address with the Companies Registration Office to their current address between August 2016 and January 2017 they had received mail addressed to the hotel via the receiver’s office. However, they did not receive any correspondence from the WRC.

The Respondent received a letter dated 13^thSeptember 2017 from the Complainant seeking payment of the award made by the Adjudication Officer. This was the first time the Respondent became aware that a claim had been taken. The Respondent emailed the WRC on the 14^thSeptember advising that they had not received any correspondence in relation to the case. They received an email back advising that the issue was closed from an Adjudication services perspective but that either party could appeal to the Labour Court.

The Respondent contends that in a further phone call to the WRC they confirmed that all the correspondence had gone to the O’Connell street address and that it had been returned undelivered.

The Complainant 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 Complainant in filling out the initial form for the WRC had included on the form the address of where she worked and the trading address of the company

The Respondent received the complainants letter on the 14^thSeptember so was on notice from that point. Any exceptional circumstances that could exist only prevented the appeal being lodge up until in and around that date. The appeal does not appear to have been lodged till the 27^thSeptember and no reason has been put forward for that delay.

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 Respondent in this case. 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 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 Respondent contends that all documentation from the WRC was sent to the wrong address. At the time the complaint was lodged 26/1/2017 the company had changed the address of the registered office for the company with the Company Registration Office. Appendix C of the Complainant’s submission shows that the correspondence from the WRC was sent to the wrong address in March 2017. As soon as the Respondent became aware of the decisions of the Adjudication Officer she sought information from the WRC in relation to the case and then within a short period submitted her appeal. Prior to receiving the letter dated 13^thSeptember she was not in a position to submit an appeal as she was not aware that a case had been taken against the company.

The question for the Court is whether the issuing of all the documentations by the WRC to the wrong address in circumstances where the Company had taken the necessary steps to correct the Company Registration Offices records could be regarded as exceptional circumstances. It appears to the Court that as the Respondent was unaware of the Decision of the Adjudication Officer during the relevant period for lodging an appeal the Respondent has 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 within the time limit set down in the Act at Section 44(4) and consequently the Court does have jurisdiction to hear the appeal.

The Court so determines.

Signed on behalf of the Labour Court

Louise O'Donnell
CR______________________
30 January, 2018Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.