FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BRIAN DUNNE (REPRESENTED BY MICHEAL MC NAMARA, B.L., INSTRUCTED BY WILLIAM CAHIR, SOLICITORS) - AND - CHRISTOPHER CLIFFORD (REPRESENTED BY DAMIEN TANSEY, SOLICITORS) DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No. ADJ-00019856. This is an appeal by Brian Dunne (hereafter the Respondent) against an Adjudication Officer’s Decision ADJ-00019856 given under the Organisation of Working time Act 1997 (the Act) in claims by Mr Clifford (hereafter the Complainant) that his former employer had breached the Act. The Adjudication Officer held that the complaint was well founded and awarded compensation. 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:
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 Complainant took a number of cases against the Respondent in this case and also took similar cases against a Limited Company that the Respondent in this case is associated with. All the cases were heard on the 29th April 2019 by the same Adjudication Officer. The cases in respect of this Respondent were issued on the 11th June 2019 and in accordance with the Act the 42 days in which an appeal could be lodged commenced on that date. The decisions in respect of the Limited Company were issued on the 14th June 2019 and this caused confusion as the expectation was that they would have all issued on the same date. It is the Respondents submission that they assumed all the decisions had been issued on the same date and counted the 42 days from the 14th June 2019 meaning the appeals had to be in on or before the 25th July 2019. It was the Respondents submission that it was highly unusual for an Adjudication Officer to issue decisions arising from cases heard on the same day on different dates. The Respondent submitted that no prejudice arose to the Complainant by the late submission. The Respondent reference the case ofGaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034)and submitted that the circumstances in this case met the test set out therein. The Complainant submitted that no exceptional circumstances existed. The Decisions of the Adjudication officer arrived separately on different dates and therefore no confusion could have arisen it was their submission that there is nothing usual in Adjudication Officer’s issuing decisions on different dates even where the parties were the same. It was the Complainants submission that nothing that the Respondent had submitted could amount to exceptional circumstances. Discussion and conclusions 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 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 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.
NOTE Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary. |
