UDD2024

1.Appeal of Adjudication Officer Decision No.ADJ-00017078 CA-00021986-001

BACKGROUND:

2.The Complainant appealed the Decision of the Adjudication Officerto the Labour Court on 06 August 2019 in accordance with Section 8 A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 18 August 2020. The following is the Determination of the Court.

DETERMINATION:

This is an appeal by the Respondent at first instance, McNelis Hospitality Bars Limited, (the Appellant) against the Decision of an Adjudication Officer given under the Unfair Dismissals Act 1977 – 2015 (the Act) in a claim of unfair dismissal made by Stephen O’Dowd (the Claimant).

The Adjudication Officer’s Decision issued on 19^thJune 2019. The within appeal was received by the Court on 6^thAugust 2019.

Preliminary Issue - Time Limits.

The decision of the Adjudication Officer issued on 19^thJune 2019. The within appeal, were it to be received in time, would have to have been received by or on 30^thJuly 2019. The appeal was received on 6^thAugust 2019.

In the interest of efficiency of process, and in view of the fact that this matter had the potential to be determinative of the appeal in its entirety, the Court set out at its hearing that it would determine the matter of time limits for the making of the within appeal as a preliminary matter and only thereafter would the Court, if required, proceed to hear the substantive matter. Neither party raised any objection to this approach.

The Court had identified to both parties in writing on 13^thAugust 2019 that an application to extend time for the making the within appeal by the Appellant should be supported in a written submission. In the event, the Appellant’s submission which was received in September 2019 did not address the matter and the responding submission of the Claimant, also received in September 2019, made no reference to the matter. In those circumstances the Court gave the parties an opportunity to make an oral submission on the matter at the hearing.

Relevant Law

The Workplace Relations Act (the Act of 2015) at Section 44(3) and 44(4) which, by operation of Section 8A(2) of the Act, applies to a decision of an Adjudication Officer given in respect of a claim for redress under the Act, provides as follows

• 44 (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 Appellant submitted that the appeal had been made after the time period allowed by the Act of 2015 through error and because a bank holiday had fallen in the period of time allowed for the making of an appeal of the decision made on 19^thJune 2019. The Appellant submitted that these circumstances amounted to exceptional circumstances within the meaning of the Act at Section 44(4).

Summary of the Claimant’s Position on the Preliminary Issue

The Claimant submitted that the appeal had been made out of time and should not be allowed.

Conclusions of the Court

The Court has given careful consideration to the oral submissions of the parties.

The Court notes that no public holiday occurred in the period between 19^thJune 2019 and 30^thJuly 2019. That being the case, the Appellant’s submission on the preliminary matter rests upon the contention that an error in calculation or otherwise represents exceptional circumstances within the meaning of the Act of 2015.

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 Respondent contends that the error of the Appellant’s legal adviser satisfies the requirement under the Act at Section 44(4).

The Court is of the view that the Appellant has not established that exceptional circumstances existed in this case such as to have prevented the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer.

The Court therefore cannot find that time should be extended for the making of the within appeal.

Determination

For the reasons set out above, the Court finds that the within appeal is statute-barred and therefore must fail. The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Kevin Foley
H.M.	______________________
24 August 2020	Chairman