MND1912

FULL RECOMMENDATION

MN/19/28

DETERMINATIONNO.MND1912

ADJ-00015232 CA-00019818-002

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

PARTIES :

CES CONTROLLED SERVICES LIMITED
(REPRESENTED BY STEPHEN O'DONOGHUE, B.L.,
INSTRUCTED BY KELLY DULLEA, SOLICITORS)

- AND -

MS VIVIENNE LONG
(REPRESENTED BY JW O'DONOVAN, SOLICITORS)

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Mr Murphy
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Adjudication Officer Decision No. ADJ-00015232.

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 7 May 2019. A Labour Court hearing took place on 25 September 2019. The following is the Determination of the Court:-

DETERMINATION:

Background

This is an appeal by CES Controlled Services Limited (hereafter "the Respondent") against an Adjudication Officer’s Decision ADJ-00015232 given under the Minimum Notice and Terms of Employment Acts 1973 to 2005 (“the Acts”) in a claim that Ms Vivienne Long (hereafter "the Complainant”) was unfairly dismissed by the Respondent, her former employer, and was not paid her minimum notice entitlements under the Acts. The Adjudication Officer held that the complaint was well-founded and awarded four weeks' salary. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance.

Preliminary issue

This matter comes before the Court by way of a preliminary application by the Respondent relating to the time limit set out in the Workplace Relations Act 2015 (“the Act”) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. The Act at Section 44(2), (3) and (4) provides as follows:

(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 Court has dealt with the preliminary issue in detail in a linked unfair dismissal case UD/19/104 and found that there were no exceptional circumstances. The preliminary issue in this case is based on the same set of facts as were considered in the unfair dismissal case.

Determination

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
TH______________________
11th October 2019Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.