UDD1831

Background

The Respondent, in a submission received by the Court on 16^thNovember 2017, raised an issue as regards the time limit specified in the Act at Section 44(3) for the making of an appeal. That submission was copied at that time also to the Appellant.

The Appellant submitted to the Court that it had no jurisdiction to consider this matter. The Appellant submitted that the Court’s administrative staff in various correspondences associated with the administrative function of receiving appeal documentation and arranging a hearing of the within appeal had confirmed that the within appeal had been accepted.

The Appellant submitted that the Court becamefunctus-officioonce its administrative staff had confirmed in December 2017 that a hearing of the appeal had been arranged for 2^ndFebruary 2018. That confirmation amounted to a confirmation that the Labour Court had decided to hear the appeal in full. The Appellant submitted that the Labour Court was not now entitled to re-visit that decision and was obliged to hear the within appeal in full. The Appellant asked the Court to consider the decision of the Court of Appeal inNoel Recruitment (Ireland) Limited v Personal Injuries Assessment Board [2016] IECA 129wherein Peart J found that the Board had becomefunctus officioafter exercising its power and issuing an authorisation.

The Respondent submitted that the actions of the Labour Court following receipt of appeal documentation from the Appellant amounted to no more than administrative activity associated with the administrative task of arranging a hearing and could not be taken as the Court exercising its statutory function as regards receipt of an appeal in conformity with the requirements of the Act at Section 44.

The Court considered the submissions of the parties in this matter. The Court received a document from the Appellant dated 30^thAugust 2017. The Court’s administrative staff subsequently engaged in appropriate administrative correspondence in the process of arranging a hearing of the appeal. The function of deciding upon any aspect of an appeal or concluding whether the requirements of the Act have been met in respect of an appeal is reserved to the Court. The Court was established by the Industrial Relations Act, 1946 at Section 10. All statutory functions subsequently afforded to the Court can only be carried out by the Court as the entity described in that Act and in the Industrial Relations Acts of 1969 and 1976 and the Workplace Relations Act, 2015.

The Court finds that no administrative activity of its staff necessarily associated with the administrative task of receiving correspondence and arranging hearings of the Court can be considered to be the discharge by the Court of its functions under the Act at section 44. The Court consequently distinguishes the within matter from the matter considered by the Court of Appeal inNoel Recruitment (Ireland) Limited v Personal Injuries Assessment Board[2016] IECA 129.

The Court therefore finds that it has jurisdiction to consider the submissions of the parties made in relation to the operation of the Act at Section 44(3) and the Court’s functions under Section 44(4).

Preliminary matter.

The Respondent submitted that the Appellant had failed to make an appeal within the time limit of 42 days as set down in the Act at Section 44(3).

TheLabour Court (Employment Rights Enactments) Rules 2016,made pursuant to section 20 of the Industrial Relations Act 1946 as amended by section 50 of the Workplace Relations Act 2015, provide at Rule 50 as follows:

• 57. The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling.

Background to the preliminary matter

An Adjudication Officer issued his decision in the within complaint on 20^thJuly 2017. An appeal, were it to be made within the time limit of 42 days set down in the Act at Section 44(3), would require to be received by the Labour Court by 30^thAugust 2017.

The act at Section 44(2) 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.

• 1. The appeal shall be initiated by notice in writing delivered to the Court within 42 days from the date of the Decision being appealed. In accordance with the provisions of the Interpretation Act 2005 the date of the decision is day 1 of the 42 day period.

3. The notice shall contain the following particulars: -

• (a) The name, phone number, address and email address of the Appellant;

  (b) The name, phone number, address and email address of the Appellant’s

  representative if any;

  • (c) The name, phone number, address and email address of the Respondent;
  (d) The name, phone number, address and email address of the

  Respondent’s representative if any;

  (e) The grounds of appeal.

  4. The notice of appeal shall be accompanied by a copy of the decision of the Adjudication Officer to which the appeal relates.

A document was received by the Court on 30^thAugust accompanied by a short covering letter from a firm of solicitors. That covering letter carried an introductory reference as follows

The attached form was an abridged version of the form published by the Court in accordance with its rules for the making of an appeal. The form contained no information other than a signature of the Appellant and the date of 29^thAugust 2017.

Summary Position of the Appellant

The Appellant submitted that the Act at Section 44(2) sets out three basic elements to the initiation of an appeal and that these elements are (a) that there must be an appeal in writing, (b) the intention to appeal from a decision must be expressed, and that (3) the Labour Court, having regard to its own regulations, determines to accept the appeal.

The Appellant submits that the presence of basic elements such as the above is consistent with the informal approach intended by the Oireachtas. The Appellant, applying the above, submitted that the documentation submitted on 30^thAugust 2017 met the elements set out at (a) and (b) above.

The Appellant submitted that the Court cannot fetter its own jurisdiction under the Act at Section 44(2). The Appellant submitted that it cannot be the case that the Labour Court Rules are mandatory pre-conditions to the validity of an appeal.

Summary Position of the Respondent

The Respondent submitted that the documentation received by the Court on 30^thAugust failed to state the decision to which it related as required by the Act at Section 44(2) and could not be said to initiate an appeal pursuant to the Act at section 44.

The Respondent submitted that the documentation received by the Court on 30^thAugust 2017 failed to meet the requirements of the Court in its published Rules at Rules 3 and 4 in that it did not provide details of the parties and was not accompanied by a copy of the decision to which the purported appeal related.

The Respondent submitted that an appeal made in compliance with the Act at section 44(2) was filed only on or after 5^thSeptember 2017.

Findings of the Court on this aspect of the preliminary matter.

The Court has considered the submissions of the parties. The Court notes that the Appellant was legally represented at the time of submitting documentation to the Court which was received on 30^thAugust 2017.

The Court has examined the documentation submitted on 30^thAugust 2017. That documentation failed to identify a decision which was purported to be under appeal and failed to identify legislation under which any decision under appeal might have been made. The documentation similarly failed to meet the requirements of the Court’s Rules in that significant detail as regards the parties involved in the matter and the decision to which any such appeal related were not supplied to the Court.

The Court can, in certain circumstances, consider the degree to which the absence of certain information required by Rules 3 and 4 of the Court can invalidate a purported appeal. The Court in this matter however was not, on 30^thAugust 2017, provided with any detail of the decision purported to be under appeal and, having regard in particular to the Act at Section 44(2), finds that the documentation was deficient in fundamental respects and consequently cannot be accepted as a valid appeal.

The Court therefore finds that the within appeal was made outside of the time limit set down in the Act at Section 44(2).

The Court, consequent on the above finding, must go on to consider a second preliminary matter which is the Appellant’s contention that the Court should make an order in accordance with the Act at section 44(4) allowing an appeal received after the lapse of the time limit set out in the Act due to the existence of exceptional circumstance. A completed appeal form signed on 5th September 2017 was received by the Court on or about that date.

Summary Position of the Appellant on this aspect of the preliminary matter

The Appellant submitted that, to the best of his knowledge, the appeal documentation used by him was retrieved from the websitehttp://www.lrc.ie/en/Appeals which was then, according to the Appellant, live. The Appellant submitted that he or his representatives did not notice the dropdown menu options within a pdf document on that site. The Appellant submitted that the use of drop down menus in pdf documents is unusual and not something which is regularly encountered in the legal profession.

The Appellant submitted that this unusual technology issue and/or mistake was such as to be sufficient to amount to an exceptional circumstance for the purpose of the Act at section 44(4). The Appellant referred the Court to its decision inJoyce Fitzimons Markey v Gaelscoil Thulach na nOg[2004] 15 ELR10in support of the contention that the Court should accept the existence of exceptional circumstances in the within appeal.

Summary Position of the Respondent on this aspect of the preliminary matter

The Respondent submitted that no exceptional circumstances were in existence in the within matter which could be accepted by the Court as giving cause for the delay in making the within appeal on time having regard to the Act at Section 44(2)

Discussion and Conclusions

The Court has carefully considered the submissions of the parties as regards this aspect of the preliminary matter.

InJoyce Fitzimons Markey v Gaelscoil Thulach na nOg[2004] 15 ELR10the Court considered the meaning of the phrase ‘exceptional circumstances’ 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 (see R v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.)

The appeal forms at issue in the within proceedings have been in use since the passing of the Act in 2015 and have been drawn down from the Court’s websitewww.workplacerelations.iesince that facility became available in 2015. The Appellant has submitted that, to the best of his knowledge, he used a website in August 2017 which had been operated by another statutory body, the Labour Relations Commission, which had itself been dissolved in October 2015 with the passing of the Act.

No submission has been made by the Appellant as to how such a website could have contained the appeal form of the Labour Court in 2017 and therefore the Court cannot draw conclusions in that regard.

The key matter therefore for the Court to consider is the contended for unusual nature of the technology behind the appeal forms made available on the internet to facilitate access to the appeal form for use in making appeals under the Act.

It is a fact that these appeal forms have been the basis for the submission of appeals since October 2015. It is also a fact that the legal profession have been successfully navigating the technology to access those forms in order to make appeals to the Court since that time.

The Court must therefore conclude that the technology utilised to make appeal forms available is not in any way unusual from the point of view of the legal profession and nor is it a particular challenge for the legal profession to navigate.

In all of the circumstances, the Court finds that no exceptional circumstances existed in the within matter which could be taken by the Court as inhibiting or preventing the Appellant from making his appeal in time.

Determination

The Court finds that the within appeal was not made within the time limit set out in the Act at Section 44(3) and the Court declines to make an order as it is empowered to do by the Act at Section 44(4)

The appeal fails and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
6 June, 2018Chairman



NOTE

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