UDD1958

This is an appeal by CES Controlled Services Limited (hereafter “the Respondent”) against an Adjudication Officer’s Decision ADJ-00015232 given under the Unfair Dismissals Acts 1977 to 2015 ("the Acts") in a claim that Ms Vivienne Long (hereafter “the Complainant”) was unfairly dismissed by the Respondent, her former employer. The Adjudication Officer held that the complaint of unfair dismissal was well-founded and awarded six months' 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 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 contends 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 instructed his Solicitor that he wished to appeal the Decision of the Adjudicator shortly after receipt of same on the 26^thMarch 2019. The Court’s attention was drawn to an email from the Respondent on the 24th April 2019 confirming that they wanted to appeal and to a response on the same day from the Solicitor confirming that he would lodge same.

The Respondent’s Solicitor wrote to Counsel on the 29^thApril 2019and Counsel responded on the 2^rdMay 2019. The Respondent’s Solicitor arranged for the Respondent to attend at his offices on the 3^rdMay 2019 to sign the completed appeal which the Respondent duly did.

The Respondent’s Solicitor had erroneously recorded the deadline for submission of the appeal in his diary as being the 9^thMay 2019 and, when he submitted the appeal on the 7^thMay 2019, he did so in the belief that he was submitting same two days in advance of the deadline.

The Respondent drew the Court’s attention to the decisions inKylemore Services Group/Home fare Services limited v Terrie Clarke(EDA 169),ALDI v Jennifer Murphy EETO43, Kenneally & Ors v Waterford Carpets [2009] 20 E.L.R. 28 and the decision of the Supreme Court in Duignan V R.F.Fry (Associates) Limitedin support of their submission that the Solicitor’s error as set out above amounted to exceptional circumstances. In particular the Court’s attention was drawn to the Duignan case. In that case the Solicitor had failed to take the proper steps to institute proceedings. The High Court held “that as a result of the nature of his solicitor’s failure to take the proper steps, the plaintiff had failed to satisfy the Court that there were substantial grounds for the fact that the action had not been instituted within 12 months from the date of the plaintiff’s action”However, this decision was overturned by the Supreme Court which held in allowing the appeal “1 That the plaintiff had failed to establish substantial grounds if the issue had to be decided upon an examination of the conduct of his solicitor. 2 That the sub-section required that the issue should be decided upon an examination of the conduct of the plaintiff and that he, having taken reasonable care to prosecute his claim and having relied upon the reassurances of his solicitor, had established substantial grounds for the fact that he had not instituted his action within 12 months from the date of the accident.

The Respondent submitted to the Court that the test in Duignan of “substantial grounds” was a higher bar than the test applicable in this case of “exceptional circumstances” and as the Court is bound to follow the decisions of the Superior Courts this decision takes precedent over any Labour Court or EAT decisions that the Court may rely on. It was their case that the Respondent had taken reasonable care to prosecute his claim and that in those circumstances the error of the Solicitor met the test set out in Duignan which is a higher bar than exceptional circumstances and the Court should exercise its discretion as set out in section 44(4) of the Act.

The Complainant contends that no exceptional circumstances applied which prevented the Appellant from giving notice to the Court of his appeal within the time limit allowed under the Act. The Complainant drew the Courts attention to a number of cases including Gael Scoil Thulach Nog v Joyce Fitzsimons Markey EET034.

The Complainant submitted that the error of the Respondent’s Solicitor could not in and of itself be considered to be exceptional and even if the Court did accept that it was exceptional it did not prevent the Respondent from giving notice of an appeal to the Court within the statutory timeframe. The Respondent, in its submission to the Court, confirmed that the Respondent had signed the form on the 3^rdMay 2019 which was within the statutory timeframe. The Respondent had not identified how it was prevented from lodging the claim on that date and therefore did not meet the test of exceptional circumstances.

Discussion and conclusions.

The Respondent relies on the Supreme Court Judgment in the case ofDuignan V R.F.Fry (Associates) Limited.Having reviewed this case the Court does not accept that it is on all fours with the case before it. In theDuigancase the Court relies on the provisions of s.6 of the Workmen’s Compensation (Amendment) Act 1953 which states;

“In a case to which this section applies-(a) acceptance by the workman of compensation under the Act, or of any payment purporting to be by way of compensation thereunder, or of any sum paid under an agreement duly registered under Part V1 of this Act, shall not prevent the workman from maintaining proceedings independently of this Act, provided that the proceedings are instituted within twelve months from the occurrence of the accident, or if the workman satisfies the Court in which the proceedings are instituted that there were substantial grounds for his not having instituted the proceedings within the said twelve months…..”

The Supreme Court in applying the above section to the facts of the Duignan case held “It is quite clear that under s.60 of the Workmen’s Compensation Act of 1934, that acceptance by the workman of compensation under the Act barred him from maintaining proceedings independently of the Act. It is quite clear that under s.60 of the Act of 1934 an unauthorised acceptance of compensation by a solicitor on behalf of the workman would not bind the workman. Therefore, the amendment contained in the Act of 1953, in speaking of acceptance by the workman of compensation, obviously refers to something done by him personally or done with his authority and , in the context of the sentence where the word “workman” appears three times before the reference to the substantial ground the word “his” clearly refers to the workman and the substantial grounds must be related to his personal activity or inactivity as the case may be”

It is clear to the Court that the ratio of the Duignan case does not apply to the case before it. Section 44(2) of the Workplace Relations Act, 2015 states 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.

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 (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.

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 error of the Solicitor in misreading the date of the Adjudication Officer’s Decision satisfies the requirement under the Act. Even if this was so, the Respondent has failed to show how this prevented the Respondent from lodging its appeal in time.

In all of the circumstances therefore the Court finds that the Complainant 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.