TUD1813

This is an appeal by Mr Conor Brennan (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00002798, dated 5 April 2017) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). The Adjudication Officer decided that the Complainant’s claims against Pat the Baker Unlimited Company (‘the Respondent’) were not well-founded. The Complainant’s Notice of Appeal was received by the Court by email on 17 May 2017. A hard copy Notice of Appeal was received the following day, 18 May 2017. The Court sat to hear the appeal – along with two related appeals TU/17/19 and TU/17/24 – on 24 August 2017 and 11 January 2018.

Preliminary Issue

The Complainant’s Notice of Appeal was received a day outside the statutory time period provided for in section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’). The Complainant is seeking, nevertheless, to have the appeal admitted – in accordance with section 44(4) of the 2015 Act – and asserts that his appeal was made outside of time ‘due to the existence of exceptional circumstances’. The Complainant submits that the exceptional circumstances arise from his Solicitor’s miscalculation of the relevant date for the purposes of section 44(3). At the Court’s request, both parties made comprehensive supplementary written submissions addressing the grounds on which the Complainant seeks to extend the time for referring his appeal to the Court.

In her supplementary written submission, Ms Bruton BL for the Complainant submits that the Complainant was blameless in relation to the late referral of his appeal to the Court as the delay was entirely the fault of the Complainant’s Solicitor in circumstances where the Complainant had instructed her to lodge the appeal and was entitled to expect her to have done so within the statutory timeframe for doing so. Ms Bruton BL makes the very novel submission that a refusal by the Court to extend the time for bringing the within appeal would be effectively to make the Complainant vicariously liable for his Solicitor’s actions. In support of her submission, Counsel invited the Court to consider a number of well-known authorities on (a) vicarious liability; and (b) the Superior Courts’ approach to a Solicitor’s failure to initiate proceedings within statutorily prescribed time limits and whether that failure should be attributed to the Solicitor’s client in the context of an application to extend time or to dismiss proceedings for want of prosecution or on the grounds of delay:Deighan v Ireland[1995] 1 ILRM 88;Duignan v RF Fry (Associates) Ltd[1971] IR 176;Allen v Sir Alfred McAlpine & Sons Ltd[1986] 2 QB 229;O’Reilly (A Minor) v CIE[1973] IR 278;Rainsford v Limerick Corporation[1995] 2 ILRM 561; Burke v Minister for Health[2012] IEHC 304; andCS v Minister for Justice[2005] 1 IR 343.

Ms Bruton’s submission comprises a detailed analysis of key passages from the aforementioned judgments from which, she submits, the following principles emerge:

• “At the level of principle - and as a matter of law - a litigant cannot automatically be identified with, and is not automatically vicariously liable for, the acts or omissions of the solicitor instructed by that litigant.

  At the level of principle - and as a matter of law - a failure by a solicitor instructed by a litigant to lodge a claim or to institute proceedings to lodge that claim, or to institute those proceedings, within the time limit prescribed for doing so in circumstances where the litigant bears no personal blameworthiness for the failure can constitute substantial grounds or good and sufficient reason or a justification for extending the time limit.

  In circumstances where the failure of a solicitor to lodge a claim within the prescribed time limit is offered as a basis for an application to extend the time limit, the starting point for analysis is the extent (if any) of the personal blameworthiness of the litigant for the failure to lodge the claim within the prescribed time limit. The starting point for analysis is not that litigant must be identified with the acts or omissions of the solicitor instructed by the litigant and is not that the litigant is vicariously liable for the acts or omissions of the solicitor.

  In circumstances where the failure to lodge a claim within the prescribed time limit was attributable to the default of the solicitor instructed by the litigant and the litigant otherwise bears no personal blameworthiness in the matter, the litigant should not be identified with and should not be held to be vicariously liable for, the default of the solicitor.”

Ms McGowan BL, for the Respondent, submits that the miscalculation by the Complainant’s Solicitor of the time period within which the within appeal should have been brought does not amount to ‘exceptional circumstances’ within the meaning of section 44(4) of the 2015 Act. Counsel disagrees in a number of respects with the interpretation placed by Ms Bruton BL on the judgments cited in support of her application to extend time and the relevance of those judgments to the within facts.

Ms McGowan BL submits that the issue of vicarious liability does not arise in the instant case and the Complainant’s attempts to introduce it before the Court are misconceived. She further submits that it is not the case the Appellant becomes liable for the purported wrong of his Solicitor although she accepts that the consequences of the Solicitor's action or inaction would be visited on the Complainant – should the court not accede to his application - as that is what is provided for in section 44(4) of the 2015 Act.

In Counsel’s view, the relevant provisions of the Workmen's Compensation Act 1934 (the subject legislation inDuignan v. RF Fry (Associates) Ltd. [1971] IR 176) can be distinguished from section 44(4) of the 2015 Act in a number of respects. Counsel further submits that there are significant differences between the facts ofDuignanand those of the instant appeal. The plaintiff inDuignantook a series of steps to satisfy himself that his solicitor was acting on his instructions -he visited or had been interviewed by his Solicitor on six occasions; the Solicitor had assured him that the matter was proceeding properly. From this the Supreme Court concluded that the plaintiff could not be held responsible as it could be assumed that had he known the real situation he would have taken steps to institute the proceedings himself or through another Solicitor.The Complainant in the instant case, however, by his own admission in evidence, took no such steps. He sought no assurances and he certainly did not enquire with his Solicitor if she was pursuing his appeal. On his and his Solicitor's evidence he made no contact with the Solicitor in respect of the appeal save to give the initial instructions to proceed with the appeal which were given on the day of receipt of the Adjudication Officer’s decision.

Ms McGowan further submits that the judgments which consider the issue of delay in non-statutory applications cited in the Complainant’s submissions turn on the exercise by the Superior Courts of the discretion vested in them under the Rules of the Superior Courts to determine how justice is served and prejudice to the parties avoided in considering whether proceedings should be dismissed for delay. She then makes the point that were this Court to accept the Complainant’s submission — that an extension of time should be granted where a complainant is blameless and fault lies with his Solicitor - it would follow that this Court should, in respect of any extension of time application, consider, all of the principles of law relevant to an application to dismiss an action for want of prosecution, as set out inPrimor v Stokes Kennedy Crowley[1996] 2 IR 459. In Ms McGowan’s submission, the legislature would have specified such a requirement in section 44 of the 2015 Act had it been its intention that the Labour Court’s exercise of its statutory power to extend time for lodging an appeal in exceptional circumstances should be subject to such requirements. She suggests that – similarly - had the legislature intended that this Court be required to consider the degree of blameworthiness attaching to an appellant as a factor in determining whether or not to grant an extension of time, this would have been expressly stated in section 44 of the 2015 Act.

Counsel for the Respondent proceeded to discuss a number of previous decisions of this Court in which the Court considered the meaning of ‘exceptional circumstances’ in the context of an application to permit an appellant an extension of time to lodge his/her appeal:Galway & Roscommon ETB v Josephine Kenny(UDD1624) andKildare & Wicklow Education and Training Board v Teresa Igoe(DWT1671). She submits that the facts of the former appeal, in particular, are on all fours with those of the within appeal and that, therefore, the Court should apply the same reasoning in this case and dismiss the Complainant’s application.

Discussion and Decision

Section 44 of the 2015 Act

Subsections (2) to (4) of Section 44 of the 2015 Act provide:

• “(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.”

This provision deals with the interpretation of periods of time that are set down in legislation, as follows:

• “(h)Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;”

Discussion

Having regard to section 18(h) of the Interpretation Act 2005, the Court was notified of the within appeal 43 days from the date of the Adjudication Officer’s decision. The appeal was not, therefore, brought within the relevant statutory time limit as decreed by the Oireachtas in section 44(3) of the 2015 Act. This was not disputed between the parties.

In her evidence to the Court, the Complainant’s solicitor informed the Court that she had utilised an-online tool to calculate the latest date for submission of the appeal as permitted by section 44(3) of the 2015 Act. However, the tool - which she relied on – had miscalculated the date. There is no other explanation for the delay.

The Court agrees with the Respondent’s submissions to the effect that the concept of the Complainant being vicariously liable in some way for his solicitor’s error in calculating the timeframe within which his appeal ought to have been lodged is not a relevant factor to be taken into account by it in determining whether, in all the circumstances, the Court did not receive his notice of appeal within the statutory 42-day period ‘due to the existence of exceptional circumstances’ such as would justify it applying section 44(4) to enlarge the period for bringing the appeal.

Furthermore, the Court agrees with the Respondent’s submission in relation to the applicability of the determination inGalway & Roscommon ETB v Josephine Kenny(UDD1624) to the facts of the within application wherein the Court stated:

• “The Court cannot accept that a miscalculation of the due date amounts to “exceptional circumstances” as defined by Section 44(4) of the Workplace Relations Act 2015. The miscalculation of the deadline date is akin to a misinterpretation of the statutory provisions. The Court is satisfied that the legal principleignorantia juris non excusat(“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.

  While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. InMinister for Finance v CPSU and Ors[2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.”

Conclusion

This matter was referred to the Court outside the statutory time limit, and as there are no exceptional circumstances to justify an extension of the time, the Court has no jurisdiction to hear it.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
SC______________________
30 July 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.