TED1911

Preliminary Issue

The Adjudication Officer issued his Decision on 1^stAugust 2018. An appeal of that decision, if one were to be made within the 42 day time limit specified in the Workplace Relations Act 2015 at Section 44(3), would require to be received by the Court by 11^thSeptember 2018. The Appellant appealed the decision of the Adjudication Officer by notice received by the Court on 7^thFebruary 2019 which was over 160 days out of time.

The Court decided to consider the matter of the Court’s jurisdiction to hear the within appeal as a preliminary matter on the basis that the Court’s decision on this matter had the potential to dispose of the entire matter.

Position of the parties

The Appellant’s legal representative accepted that he did not lodge his appeal to the Court within the 42-day period but submitted that exceptional circumstances prevented him from doing so. The Appellant submitted that, while he was legally represented at the date of making his appeal, his legal representative erroneously made the appeal to the Workplace Relations Commission which is a separate statutory body. The Appellant accepted that the appeal form provided by the Court for the making of an appeal and which was used in this matter, gave very clear details of how to make an appeal and where that appeal should be sent. The Appellant submitted that the Respondent suffered no prejudice as a result of the delay in making the within appeal.

The Respondent said that it was a matter for the Court to decide on whether or not the circumstances as described by the Appellant constitute exceptional circumstances. The Respondent submitted however that it had reviewed its potential liabilities in respect of employment matters at year end 2018 and had not identified any appeal in this matter as being in process at that time. Thus, the Respondent submitted that it has suffered a prejudice as a result of the delay in making the within appeal.

The Law

This preliminary matter falls to be considered in accordance with the provisions of Section 44(2), 44(3) and 44(4) of the Workplace Relations Act 2015 (the Act of 2015).

The Act at Section 44(2), 44(3) and 44(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.

Discussion and conclusions

The Court addressed the issue of what can be regarded as 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 Appellant. To discharge that burden the Appellant 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 him lodging his appeal in time.

In the within matter the Appellant contends that the fact that his legal representative made an appeal to an incorrect statutory body should be regarded as an exceptional circumstance within the meaning of the Act.

This set of circumstances arose notwithstanding that the appeal form used for the making of the incorrectly directed appeal was clear in terms of the steps required to be taken and the details of the Court as being the body to whom any appeal should be made. The Court cannot but conclude that the Appellant and his legal representative failed, through lack of attention to or respect for the statutory procedure involved, to carry out the basic steps which were clearly set out in the form being used at the point when they intended to make an appeal. It is not for the Court to say whether such practice is unusual in terms of legal practice but it would be a significant step for the Court to find that the circumstances of this matter amount to the existence of exceptional circumstances within the meaning of the Act.

In all of the circumstances therefore the Court finds that the Appellant has not established that circumstances arose in this matter which could be regarded as being exceptional and of a nature such as to prevent the lodging of the within appeal within 42 days of the date of the decision of the Adjudication Officer.

Determination

Having regard to the submissions advanced on behalf of the Appellant, and in all the circumstances of this case, the Court is of the view that he has not offered a justifiable excuse for the delay in making his appeal. The appeal therefore fails.

The Court so Determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
24 April 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.