FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AN EMPLOYER - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00010061.
BACKGROUND:
2. The Applicant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section (83) (1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on1stMay2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by the Applicant against two Decisions of an Adjudication Officer ADJ-00010061, CA-00013126-001 and 002 dated 22ndNovember 2018 under the Employment Equality Acts 1998 – 2015 and the Payment of Wages Act 1991. The Notice of Appeal was received on 3rdJanuary 2019, which was outside the 42-day period for bringing an appeal provided for in section 44(4) of the Workplace Relations Act 2015 (‘the Act’). The Applicant sought an extension of time to bring the appeals on the grounds that there were ‘exceptional circumstances’ at play which prevented him bringing the appeals within the statutory time period.
The Applicant explained that he went to the Post Office on 31stDecember 2018 to post his appeals to the Labour Court and requested the envelope to be send by Express Post and paid the appropriate fee. However, due to an error by the Postal Clerk, it was sent by Registered Post instead and arrived on 3rdJanuary 2019, which was one day out of time. The Applicant told the Court that An Postguarantee (99%) to deliver Express Post items the next working day.The Applicant wrote to An Post to make a complaint and received a letter dated 29thJanuary 2019 from Customer Services, An Post, apologising to him for the error when the wrong service was used to deliver his post. Copies of the An Post receipt of payment and the letter from An Post were supplied to the Court.
The Respondent disputed the existence of exceptional circumstances when the Applicant failed to present his appeal in time. It submitted that the Applicant could not rely on the inefficiencies of the postal service as being either exceptional or causative of the failure to give notice of the appeal. It cited a number of authorities in support of its contention,viz,Kildare & Wicklow ETB v IgoePWD1626where the Appellant gave the reasons for the delay in presenting her appeal on time:-
- “Her legal representative posted her appeal at the mails centre in Portlaoise on 2ndMay 2016 on the understanding that the notice of appeal would arrive in the Court on 3rdMay 2016. The final date for giving notice of appeal to the Court fell on a Bank Holiday Monday. Two Bank Holidays fell on dates during the appeal period of 42 days.”
The Respondent also citedSAP Landscape Limited v Gutkin & O’NeillUDD166, where“the Applicant stated to the Court that the decision to appeal the decision of the Adjudication Officer was made on 2ndOctober 2015 and the notice of appeal was placed with other correspondence of the Applicant’s Trade Union to be sent to the Court by registered post on that date. A ‘postal strike’ took place on that date and the Applicant thought that the notice of appeal had issued when that strike concluded.”
The Court concluded that:“the existence of exceptional circumstances has not been established such that the Court should direct that a notice under Section 44(2) of the Act may be given to it after the expiration of the period set out in Section 44(3) of the Act.”
The Respondent contended that the Applicant had not demonstrated that exceptional circumstances existed and that no such exceptional circumstances prevented the Applicant from lodging an appeal of the decision of the Adjudication Officer.
Discussion
InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110this Court gave extensive consideration to the meaning of the expression"exceptional circumstances". In that case the Court stated as follows:
“The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act. That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another.”
The Court went on to state
- “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 burden of proof in establishing the existence of exceptional circumstances rests with the Applicant. To discharge that burden the Applicant 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.
In the within case the Court is satisfied that but for the wrong delivery service being used by An Post when it sent the Applicant’s appeals by Registered Post as distinct from Express Post, then it would have arrived in time. The Court is of the view that it was reasonable for the Applicant to expect the appeals to be delivered on 2ndJanuary 2019, when he asked to have the envelope delivered by Express Post on 31stDecember 2018 and paid the appropriate fee. Taking account of the public holiday on 1st January 2019, there was a genuine expectation that it would arrive on 2ndJanuary 2019, instead due to an error on An Post’s part, it was sent by
Registered Post and did not arrive until 3rdJanuary 2019. The Court is satisfied that these circumstances fall within the definition of exceptional circumstances and accordingly the Court accepts that the appeal is within time.
Determination
In all of the circumstances the Court finds that the existence of exceptional circumstances has been established such that the Court should direct that a notice under Section 44(2) of the Act may be given to it after the expiration of the period set out in Section 44(3) of the Act.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
20 May, 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.