FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DOMESTIC & GENERAL PROPERTY SUPPORT SERVICES LIMITED - AND - TATIANA POPA (REPRESENTED BY MARIUS MAROSAN) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00008860.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer 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 24 May 2018. The following is the Determination of the Court:
DETERMINATION:
BACKGROUND
This matter comes before the Court as an appeal by Ms Tatiana Popa (the Appellant) of a decision made by an Adjudication Officer in her complaint made under the Unfair Dismissals Act, 1977 against her former employer, Domestic and General Property Support Services Limited (the Respondent).
The decision of the Adjudication Officer was made on 28thNovember 2017. The within appeal was received by the Court on 11thJanuary 2018. The Respondent submitted as a preliminary issue that the within appeal was made outside the time limit specified in the Workplace Relations Act, 2015 (the Act of 2015) at Section 44(3).
The Court decided to consider this matter as a preliminary matter on the basis that the Court’s decision in that regard could be determinative of the entire appeal.
The Law
The Act of 2015 at Section 44(2), (3) and (4) provides as follows:
- 44 (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.
- (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.
Position of the Appellant.
The Appellant’s representative made no written submission in advance addressing this matter. The Appellant’s representative, at the hearing of the Court, set out that he was unaware that an appeal of a decision made under the Unfair Dismissals Act, 1977(the Act) would require the Appellant to specify that the decision of the Adjudication Officer made under the Act, as distinct from a decision made under any other Act, was under appeal. The Appellant’s representative submitted that an appeal under another Act was made on 11thDecember 2017. He submitted that although the Court responded to that appeal in writing on 12thDecember he did not make the within appeal until 11thJanuary because he was on his ‘Winter Holidays’ outside of the country.
Position of the Respondent
The Respondent submitted that no valid appeal was before the Court having regard to the time limits set out in the Act and that no exceptional circumstances had been outlined to the Court which would allow the Court to make an order in accordance with the Act at Section 44(4)
Discussion and conclusions.
It is settled law that in order to consider an appeal made outside the time limit specified in the Act of 2015 at Section 44(3) 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 within the time limit specified.
The Court addressed the issue of exceptional circumstances in its decision, albeit in a case under a different statute, in Gaelscoil 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.
In the within case the Appellant’s representative contends that two factors caused the delay in submitting an appeal in time.
The first of these factors was the representative’s lack of knowledge that an appeal of a decision made under the Act could not be made in the form of an appeal of a decision made under another Act. The Appellant’s representative submitted that his appeal made under another Act was, in his initial view, sufficient to move an appeal under the Act. He accepted that he received correspondence from the Court dated 12thDecember 2017 advising him that his appeal as received by the Court was under another Act and not the Act.
InGalway & Roscommon ETB UDD1624, the Court found as follows:-
- “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 principle ignorantia 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 36the 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.”
The second factor submitted to be exceptional within the meaning of the Act of 2015 at Section 44(4) was the fact the Appellant’s representative was outside of the Country on his ‘winter holiday’ for a significant amount of time during the forty two days following the date of the decision of the Adjudication Officer. The Court cannot find, having regard to modern communication facilities and infrastructure, that the fact of the Appellant’s representative being out of the country for a period can be accepted as amounting to exceptional circumstances preventing the making of the within appeal in time.
In all of the circumstances therefore the Court finds that the Appellant has not established that exceptional circumstances arose in this case such as to be regarded individually or together 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.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
24 July 2018______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.