FULL RECOMMENDATION
SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 PARTIES : CH MARINE LIMITED TRADING AS BANTRY BAY CANOES (REPRESENTED BY ANNE TAIT & CO SOLICITORS) - AND - CIARÁN O' CONNOR DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No. ADJ-00011634.
BACKGROUND:
2.
The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 28 August 2017. A Labour Court hearing took place on the 18 October 2018. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Ciaran O’ Connor against Adjudication Officer’s Decision ADJ-00011634 given under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I.131 of 2003). The Adjudication Officer found that the claim was out of time and that he had no jurisdiction to hear the claim.
The transfer in question took place on the 20thJanuary 2017. The cognisable period for the lodging of a claim under the Regulations is 28thApril 2017 to the 27thOctober 2017 being the date the claim was lodged with the WRC.
The Court decided to deal with the preliminary issue of time limits in the first instance.
Complainant’s case
The Complainant had engaged a firm of Solicitors to act on his behalf in May 2017. He subsequently parted company with the legal firm and at that stage lodged his claim.
Respondent’s case
It is the Respondent’s case that they were engaging with the Complainant's Solicitors and progress was being made when he decided to dispense with his legal team. The Respondent then engaged with the Complainant. It is their position that the Complainant has not demonstrated any exceptional circumstances for the delay in lodging the claim and therefore the Labour Court does not have jurisdiction to hear the claim.
The applicable law
Section 10;
- ……
(6)A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable
It is not disputed by the Complainant that his claim was submitted outside the prescribed time limit nor has the Complainant provided any explanation other than a decision to part company with his legal team for the delay in submitting the claim.
This Court has, in a number of cases, considered the application of the test to determine whether exceptional circumstances apply. For example inJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110(cited inKylemore Services Group/Home Fare Services Limited v Terrie Clarke(DEC-E2015-160) the Court stated:
“Exceptional Circumstances
- 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 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.
In this case it is for the Complainant to both explain the delay in lodging his appeal and to offer a justifiable excuse for the delay. Having regard the submissions advanced by the Complainant, the Court is of the view that he has not offered a justifiable excuse for the delay in all the circumstances. The appeal, therefore, fails.
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
CC______________________
12 November 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.