UDD1939

This matter comes before the Court as an appeal by Eddie Grimes (the Appellant) of a decision made by an Adjudication Officer in his complaint made under the Unfair Dismissals Act, 1977 (the Act) against his former employer, Laser Shipping Limited (the Respondent).

The decision of the Adjudication Officer was made on 18^thDecember 2018. The within appeal was received by the Court on 30th January 2019. The Respondent submitted as a preliminary issue that the within appeal was made outside the time limit specified in the Workplace Relations Act, 2015 (the Act of 2015) at Section 44(3).

The Court decided to consider this matter as a preliminary matter on the basis that the Court’s decision in that regard could be determinative of the entire appeal.

The Law

The Act of 2015 at Section 44(2), (3) and (4) provides as follows:

• 44(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.

Position of the Appellant.

The Appellant’s representative submitted that the Appellant’s spouse was unwell at or around the material time for the making of the within appeal and that she remains unwell. She submitted that she advised the Appellant at the first instance hearing of the time limit applying for the making of the appeal, that she advised him again of the time limit upon receipt of the decision of the Adjudication Officer and that she reminded him again approximately seven days before the expiry of that time limit. The Appellant notified his representative of his wish to appeal the decision of the Adjudication Officer on the afternoon or evening of the 28^thJanuary 2019. The Appellant’s representative submitted that the illness of the Appellant’s spouse constituted exceptional circumstances within the meaning of the Act at Section 44(3).

Position of the Respondent

The Respondent submitted that no valid appeal was before the Court having regard to the time limits set out in the Act and that no exceptional circumstances had been outlined to the Court which would allow the Court to make an order in accordance with the Act at Section 44(4). The Respondent submitted that no documentary evidence or other pertinent detail as regards the illness of the Appellant’s spouse had been put before the Court and that no submission had been made by the Appellant setting out how the illness of his spouse prevented him from making the within appeal. The Respondent also submitted that the Appellant had confirmed that his spouse remained unwell during and after the making of the within appeal and, having done so, could not contend that the ill health of his spouse prevented him from making of the within appeal in time.

Discussion and conclusions.

It is settled law that in order to consider an appeal made outside the time limit specified in the Act of 2015 at Section 44(3) 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 within the time limit specified.

The Court addressed the issue of exceptional circumstances in its decision, albeit in a case under a different statute, in Gaelscoil 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.

In the within case the Appellant’s representative contends that the illness of the Appellant’s spouse prevented the making of the appeal in time. The Appellant’s representative made no submission setting out the date of commencement of the illness of his spouse but did confirm that the illness persisted throughout the period when the appeal was actually made and thereafter.

Upon questioning by the Court, the Appellant’s representative confirmed that he had been in employment and attending his workplace throughout the material time and that the illness of his spouse did not prevent him from so doing.

The Court notes that the Appellant was repeatedly advised by his representative of the time limit applying in the within appeal.

The Court, applying the reasoning set out in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034), finds that the fact of a person’s spouse being ill from an unspecified date in circumstances where that person is not prevented from carrying on his employment could not be regarded as an exceptional circumstance within the meaning of the Act. The Court further finds, having regard in particular to the fact that the appeal was made during a period when it was submitted that the illness of the Appellant’s spouse persisted, that it cannot find the illness of the spouse to have prevented the Appellant from making the within appeal.

In all of the circumstances therefore the Court finds that the Appellant 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



Kevin Foley
MK______________________
17 July 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.