DWT199

The decisions of the Adjudication Officer were made on 17^thDecember 2018. The within appeal was received by the Court on 1^stFebruary 2019.

The Appellant made an application to the Court that it direct, under Section 44(4) of the Workplace Relations Act, 2015 (the Act of 2015), that the time allowable for the making of the within appeal should be extended because of the existence of exceptional circumstances. The Appellant also submitted that the Court had no jurisdiction to hear the within appeal because the contract of employment held by the Complainant was substantively illegal.

The first of these matters has the potential to dispose of the entire matter. For this reason and in the interest of efficiency of process, the Court decided to determine this matter as a preliminary matter in advance of its consideration of other matters.

In the event that the Court should decide to give a direction under the Act of 2015 at Section 44(4) the Court decided that it would then decide the matter of its jurisdiction as a second preliminary matter.

In the event of the Court determining that it had jurisdiction in the matter the Court will then consider the substantive appeal.

First Preliminary matter

The within appeal was received by the Court on 1^stFebruary 2019. An appeal of an Adjudication Officer decision made on 17^thDecember 2018, were it to be made in time having regard to Section 44(3) of the Act of 2015, would have to be made by 27^thJanuary 2019. The within appeal was not received by the Court until 1^stFebruary 2019.

The Court is empowered by Section 44(4) of the Act of 2015 to direct that the time for the making of an appeal be extended where it is satisfied that the appeal was not made within time because of the existence of exceptional circumstances.

Both parties to the within matter accepted that exceptional circumstances existed up to and including 21^stJanuary 2019. The Appellant submitted that further exceptional circumstances existed thereafter.

The Complainant submitted that no exceptional circumstances existed after 21^stJanuary 2019 which prevented the Appellant making his appeal in time.

Summary position of the Appellant

The Appellant’s legal representative submitted that a family circumstance had the effect of making him unavailable to attend at his place of work until 21^stJanuary 2019. He submitted that he was unaware until 22^ndJanuary that a decision had been received from the Adjudication Officer. He submitted that he immediately took instructions to appeal from the Appellant.

The Appellant’s legal representative submitted that a further mistake occurred and the within appeal did not issue until 29^thJanuary 2019. That mistake related to the availability of the book-keeper of the Appellant’s legal representative who was required to make a payment to accompany the appeal to the Court in view of the fact that the Appellant had not attended the hearing of the Adjudication Officer,

The Appellant submitted that the set of circumstances outlined amounted to exceptional circumstances within the meaning of the Act of 2015 at Section 44(4).

Summary position of the Claimant

The Claimant accepted that exceptional circumstances preventing the making of the within appeal obtained until the return to work of the Appellant’s legal representative on 21^stJanuary 2019. The Claimant submitted that the Appellant had been in a position to make the appeal from that date and had completed the necessary documentation on 25^thJanuary 2019. The Claimant submitted that no exceptional circumstances existed after 21^stJanuary 2019 which prevented the making of the within appeal.

Discussions and conclusions

In order to give a direction under Section 44(4) of the Act of 2015 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 finds that exceptional circumstances relating to the family of the Appellant’s legal representative existed until 21^stJanuary 2019 and that those circumstances prevented the making of the appeal up to that date.

The Court addressed the issue of exceptional circumstances in its decision 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.

It is not contended by the Appellant that his representative was unaware of the time limits applying under the Act for the making of an appeal. The Appellant has submitted that a mistake or mistakes by the book-keeper of the Appellant’s legal representative should be accepted by the Court as constituting exceptional circumstances.

The process of making an appeal to the Court involves the completion of a standard form with a brief narrative. The book-keeper’s role, as outlined to the Court by the Appellant, was confined to the making of an electronic payment to a designated account as an element of the process of making the within appeal. The making of that payment was a separate transaction to the submission by post or manual means of the appeal documentation, albeit requiring to be completed as part of the process of making the within appeal to the Court. The Court cannot accept that mistakes by the book-keeper can be regarded as being exceptional within the meaning of the Act of 2015 or causative of the failure to give notice of the Appellant’s appeal by 27^thJanuary 2019. In reaching this conclusion the Court notes that the appeal form which was received by the Court on 1^stFebruary 2019 was signed by the Appellant’s legal representative on 25^thJanuary 2019. That date preceded the expiry of the time limit set out in the Act of 2015 but the appeal was not received by the Court until seven days after the date of signing of the form.

The Court, applying the principles set out in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034), has concluded that no exceptional circumstances applied in relation to the within appeal such that the Appellant was prevented from giving notice of appeal within the time set out in the Act. The Court therefore cannot give a direction in accordance Section 44(4) of the Act of 2015.

Second Preliminary matter

The Appellant had asked the Court to consider its jurisdiction to hear the within appeal in the context where it was argued that the Appellant had engaged the Claimant under a work permission which was invalid. In particular, the Appellant invited the Court to make findings as regards the legal validity of anAtypical Working Scheme Letter of Approvalwhich had issued from the Irish Naturalisation and Immigration Services (INIS) in June 2017 addressed to the Claimantcare ofthe Appellant’s legal representative. The Appellant further invited the Court to conclude that the Appellant had engaged the Claimant under a contract of employment which, by application of the decision of the High Court inHussein v The Labour Court and others [2012] IEHC 364,was substantively illegal.

The Court notes that the Appellant made no submission setting out the functions of the Court under the legislation or other framework underpinning the issuing of Atypical Working Scheme permissions to non-EEA fisher people.

Neither did the Appellant make a submission addressing the proposition that the Court holds jurisdiction to make findings as regards the legal validity of letters of approval under any such scheme issued by the INIS.

The Court, on the basis of it having made an earlier decision as regards the preliminary issue of time limits applying for the making of the within appeal, concluded that no decision was necessary in respect of the second preliminary matter raised by the Appellant.

Determination

The Court determines that no exceptional circumstances existed within the meaning of the Act of 2015 at Section 44(4) which would form the basis for a direction of the Court extending the time for the making of the within appeal. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CH______________________
31 May 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.