UDD1937

• (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 had been considering its position in relation to whether or not to lodge an appeal and had sought advice in relation to same. A decision was taken that an appeal would be submitted electronically on the 42^ndday which happened to be New Year’s Day. On the 1^stJanuary the representative for the Respondent logged on to the Labour Court appeals sections of the website to complete the form. Despite multiple attempts during that day and into that evening she was unable to open and/or download the form. When the Respondent’s representative tried to open and access the form, the system crashed and a warning came up that the form was 60 days out of date. As it was New Year’s Day the Offices of the Labour Court were closed and nobody was available to help with the systems issue.

It is the Respondent’s submission that they are entitled to send their submission in on the 42^ndday and that the “crashing” of the Labour Court’s electronic submission system was an exceptional circumstance. The Representative for the Respondent informed the Court that she always submits appeals through the electronic system and has never had an issue with the system before. It is the Respondent’s submission that it was sufficient for the exceptional circumstances only to exist at the time they were attempting to make their submission because in this case the nature of the exceptional circumstance prevented the Respondent from lodging their appeal within the specified time limit.

The Respondent drew the Court’s attention to a number of cases which addressed the test on exceptional circumstances and in particular the requirement that the exceptional circumstance must operate to prevent the applicant from lodging their claim. It is their submission that if the Labour Court electronic system had been working correctly on the 1^stJanuary 2019 the appeal would have been lodged 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 representative for the Respondent acknowledged that there were other options such as email and/or fax available to her on the 1^stJanuary 2019 but the decision had been made to submit the appeal electronically.

The Complainant contends that no exceptional circumstances applied which prevented the Respondent from giving notice to the Court of the appeal within the time limit allowed under the Act. The Complainant referenced the case of Joyce Fitzsimons- Markey v Gaelscoil Thulach na nOg[2004] ELR 110 where it was held that the exceptional circumstances cannot refer to something that is regular or routinely or normally encountered.

Discussion

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

• 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 Respondent contends that the malfunctioning of the Labour Court’s electronic appeals systems which prevented her from downloading an appeals form was an exceptional circumstance. Applying the interpretation of the word exceptional as set out inGaelscoil Thulach na nOg and Joyce Fitzimons-Markeyto the facts of this case the question that arises for the Court is:- Does a systems malfunction constitute an exceptional circumstance or is it something which is regularly or routinely or normally encountered? It is the experience of this Court that a system malfunction is something that is regularly encountered in that whether you are booking a flight, doing banking on-line or lodging a form you can encounter systems malfunction and as such it cannot be considered to be an exceptional circumstance. Even if the Court was to accept that such a malfunction was an exceptional circumstance, it was accepted by the representative of the Respondent that there were other options available that would have facilitated the appeal being submitted within the time allowed under the Act.

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.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
16 July, 2019.Deputy Chairman



NOTE

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