UDD1920

• (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.

The Respondent seeks to have the Court direct, in accordance with Section 44(4) of the Act that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.

Position of the parties:

The Respondent contended that exceptional circumstances can be demonstrated in the within appeal and that the Court consequently has the discretion to allow the within appeal to progress.

The Respondent set out the relevant circumstances applying as follows:

The Respondent informed his representative on the 1^stSeptember 2018 that he wished them to make an appeal on his behalf. In line with normal practise in the representatives’ office a file was created, and the representative engaged with the Respondent. It was understood that in and around that time the appeal was submitted. The Respondent contacted the representative towards the end of September 2018 and was assured that everything was in order and that the appeal was on track. It later transpired that this was incorrect.

On the 3^rdOctober 2018 a reminder on the inhouse system of the Respondents representative alerted the administrator to the fact that an appeal had not been submitted. The appeal form was completed on the morning of the 4^thOctober 2018 and was left for the administrator to arrange for it to be couriered to the Labour Court. Due to unforeseen circumstances the Administrator was forced to leave work early and the letter was not couriered.

When the administrator returned to the office the next day the 5^thOctober 2018 she arranged for the appeal to be couriered to the Labour Court.

The Respondent drew the Court’s attention to a number of cases which addressed the test on reasonable cause and in particular the requirement that the reason for the delay must both explain the delay and afford a justifiable excuse for the delay. It is their submission that had the administrator not being forced to leave work that day the appeal would have been sent by courier and would have been in on time. The Respondent submits that therefore the Court should accept the appeal in accordance with s44(4) of the Workplace Relations Act 2015.

The Complainant contends that no exceptional circumstances applied which prevented the Respondent from giving notice to the Court of the appeal within the time limits allowed under the Act.

The Complainant referenced a number of cases includingRobinson v Barlo Group plcUD402/1995 where it was held that the failure on the part of a solicitor to lodge a claim within the specified time did not come within the correct meaning of “exceptional”

Discussion and conclusions.

It is settled law that in order to consider an appeal of this nature 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.

The Court addressed the issue of 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 Court accepts that the facts of any case are unique to itself and that the application of the law to the within case must be in the context of the circumstances arising in this case

In the within case the Complainant contends that that a number of administrative mishaps within the representatives’ organisation, led to the appeal not being submitted within the 42 days. The representative does not dispute that they became aware that the appeal had not been lodged on the 3^rdof October at which time it was still possible to lodge the appeal in time. The only explanation given for not lodging the appeal that day was an inhouse procedure which required the appeal form to be reviewed by an IR executive. The fact that the representative company had a particular system for lodging appealscannot in the view of the Court be deemed to be “exceptional circumstances”.

In all of the circumstances therefore the Court finds that the Respondent has not established that exceptional circumstances arose in this case such as to be regarded 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.

Signed on behalf of the Labour Court



Louise O'Donnell
29th April 2019______________________
SCDeputy Chairman



NOTE

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