RPD202

FULL RECOMMENDATION

RPA/18/26

DETERMINATIONNO.RPD202

ADJ-00012693 CA-00017131-001

REDUNDANCY PAYMENTS ACTS, 1967 TO 2014

PARTIES :

DRUMCONDRA CHILDCARE LIMITED

- AND -

NATALIA JARYSZ
(REPRESENTED BY BLAZE
J NOWAK)

DIVISION :

Chairman: Mr Haugh
Employer Member: Ms Connolly
Worker Member: Ms Tanham

SUBJECT:
1. Appeal Of Adjudication Officer Decision No. ADJ-00012693 CA-00017131-001.

BACKGROUND:

2. The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 21 August 2019. A Labour Court hearing took place on the 14 February 2020. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Ms Natalia Jarysz (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00012693/CA-00017131-001, dated 9 July 2018) under the Redundancy Payments Act 1967 (‘the 1967 Act’).

The Notice of Appeal was received by the Court on 21 August 2018.i.e. outside the forty-two day period within which a party to a decision of an Adjudication Officer under the 1967 Act is permitted to refer an appeal to the Labour Court.

Preliminary Issue

Section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides:

“(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.”

Section 44(4) of the 2015 Act provides:

“(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.”

Mr Nowak made an application to the Court to have the time period for the submission of the within appeal enlarged. He submits that exceptional circumstances apply in this case to ground such an extension of time within the meaning of section 44(4) of the 2015 Act. In support of his submission, Mr Nowak points to the following sentence in the body of the Adjudication Officer’s decision: “Therefore, I do uphold CA-00017131-001 related to the non-payment of a redundancy payment.” Mr Nowak told the Court that when he received a copy of the decision, he read this sentence and assumed that his client had succeeded in her claim under the 1967 Act. Mr Nowak also told the Court that he had neglected to read the final section of the Adjudication Officer’s decision where the Officer writes: “I do not uphold CA-00017131-001 related to the non-payment of a redundancy payment.” Had Mr Nowak read the entire decision when he received it initially, he would have referred an appeal within time, he says.

Discussion and Decision

It is abundantly clear to the Court that the sentence relied on by Mr Nowak contains a typographical error: the Adjudication Officer omitted the word ‘not’ when drafting his decision. This is confirmed by the fact that an almost identically worded sentence – but containing the word ‘not’ – is to be found in the final section of the Adjudication Officer’s written decision. Furthermore, the paragraph immediately preceding the sentence Mr Nowak relies on clearly indicates the basis on which the Adjudication Officer declined to uphold the complaint under the 1967 Act. The paragraph reads:

“The section is very clear in this regard and states that an employee ‘shall not be entitled to a redundancy payment’ unless they have served ‘notice of intention to claim’. A simple statement of intention to resign does not comply; indeed, it indicates a voluntary resignation.”

The Court does not accept that an experienced practitioner, familiar with the facts of this case, having read the foregoing paragraph, could have concluded anything other than his client’s case under the 1967 Act had not succeeded and that the sentence that followed immediately after that paragraph contained an obvious typographical error.

In any event, the essence of Mr Nowak’s submission for the extension of time is that his misinterpretation of the Adjudication Officer’s decision, based on his partial reading only of the decision, amounts to exceptional circumstances within the meaning of section 44(4) of the 2015 Act.

The expression ‘exceptional circumstances’, as it was used in s.8(2)(b) of the Unfair Dismissals Act 1977, was considered by the Employment Appeals Tribunal in a number of its determinations. The Tribunal emphasised that the words were “strong words” and meant something “out of the ordinary”. At the very least, the circumstances had to be “unusual, probably quite unusual, but not necessarily highly unusual”: seeByrne v PJ Quigley LtdUD 762/1994 (reported at [1995] E.L.R. 205). In that case, the Tribunal (by a majority of two to one) took the view that:

“In order to extend the time, the Tribunal must be satisfied that the exceptional circumstances ‘prevented’ lodging the claim within the general time limit.”

This Court has consistently adopted and applied the foregoing interpretation of the words ‘exceptional circumstances’ in its determinations in which section 44(4) of the 2015 Act has been invoked on behalf of an appellant seeking an extension of time to refer an appeal to it. (For example see: SAP Landscapes Ltd v Gutkin and O'Neill UDD 6 & 7/2016 and Kildare & Wicklow Education and Training Board v Igoe PWD 26, 27 & 28/2016, PTD 4/2016, DWT 71/2016 and TED 23/2016.)

The Court finds that the established jurisprudence – none of which was opened to it by the Complainant’s representative – does not support the Complainant’s application to extend time in this case. There is nothing before the Court on which it can conclude that the Complainant was prevented from referring her appeal within the forty-two day period for doing so provided for in section 44(3) of the 2015 Act.

On that basis, the application to enlarge time for the appeal fails and the appeal is deemed to be out of time. It follows that the decision of the Adjudication Officer stands.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
TH______________________
23 March 2020Deputy Chairman

NOTE

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