FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : TOWERBROOK LIMITED CASTLE DURROW COUNTRY HOUSE (REPRESENTED BY MR WILLIAM KELLY B.L. INSTRUCTED BY WILLIAMS SOLICITORS) - AND - LAURA STRELNIECE (REPRESENTED BY MS. CAROLINE DOYLE B.L. INSTRUCTED BY SEAN ORMONDE SOLICITORS & COMPANY) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No(S). ADJ-00012892 CA-00017209-022 CA-00017209-023.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 30 January 2019. A Labour Court hearing took place on 9 January 2020. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by the Applicant against a Decision of an Adjudication Officer ADJ-00012892, CA-00017209-022 dated 11thDecember 2018 under the Employment Equality Acts 1998. The Notice of Appeal was received on the 24th January 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 Adjudication Officer decision is dated 11thDecember 2018. In order for the appeal to have been submitted within the statutory timeframe the appeal would have to have been received by the Labour Court no later than the 21stJanuary 2019. The Applicant sought an extension of time to bring the appeal on the grounds that there were ‘exceptional circumstances’ at play which prevented her bringing the appeals within the statutory time period.
The Representative for each party agreed a common matrix of facts in respect of the application to extend time on the grounds of exceptional circumstances.
The parties agreed that there was a chimney fire on the 29thNovember 2018 and that the Complainant, and her family were out of the property for four days. The Complainant provided a letter dated 4thMarch 2019 from the local fire authority confirming that there had been a fire on the 29thNovember 2018.
In relation to the Complainant’s partner’s health it was common cause that he suffered from ulcerative colitis. He was in work up to and including the 6thJanuary 2019. He was admitted to a local hospital on the 7thJanuary and moved to a hospital in Dublin on the 16thJanuary 2019. He underwent significant surgery on the 23rdJanuary 2019.
The Complainant submitted that there was a second fire on the 14thJanuary 2019. However, the letter from the local fire authority dated 4thMarch 2019 makes no mention of a second fire.
It was the Complainant’s submission that because of the fires and her husband’s illness she had a lot going on and that was why the appeal was not lodged in time. It was her submission that she did not have legal advice during that period and that the appeal was submitted on the 24thJanuary 2019 the date she sought legal advice.
It was the Respondent’s submission that the fire had occurred prior to the Adjudication Officer Decision issuing and therefore could have no bearing on the appeal. While the Respondent accepts that the illness of the Complainant’s husband could have caused her a lot of worry and stress it does not accept that it prevented her from lodging her appeal. The Respondent contended that the Applicant had not demonstrated that exceptional circumstances existed and that no such exceptional circumstances prevented the Complainant from lodging an appeal of the decision of the Adjudication Officer.
Both parties agreed that the test the Court should apply is the test set out inJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110
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 Complainant. To discharge that burden the Complainant 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 circumstances that existed were the aftermath of a house fire and the sudden hospitalisation of the Complainants partner. While these circumstances might be considered to be exceptional no cogent arguments were put forward as to how these circumstances operated to prevent the applicant from lodging her claim in time. The Court is not satisfied that these circumstances fall within the definition of exceptional circumstances and accordingly the Court determines that the application for an extension of time must fail.
Determination
In all of the circumstances the Court finds that the existence of exceptional circumstances has not been established and therefore the application for an extension of time must fail.
The Court so Determines.
Signed on behalf of the Labour Court
Louise O'Donnell
TH______________________
15 January 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.