EDA2021

1.An appeal of an Adjudication Officer's Decision No(s) ADJ-00018217 CA00023440-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 22 November 2019. A Labour Court hearing took place on 18 November, 2020. The following is the Court's Determination:





DETERMINATION:

This is an appeal by G4S Secure Solutions (Ire) Limited (the Appellant) against the Decision of an Adjudication Officer given under the Employment Equality Acts, 1998 to 2015 (the Acts) in a compliant made under the Act by Noel Barry (the Complainant).

The Adjudication Officer’s Decision issued on 9^thOctober 2019. The within appeal was received by the Court on 22^ndNovember 2019. The appeal, were it to have been received in time, would require to have been received by this Court no later than 19^thNovember 2019.

Preliminary Issue - Time Limits.

The Appellant, having made its appeal outside the statutory time limit of 42 days provided in the Act made application to the Court for an extension of the time allowed for the making of the appeal.

The Complainant submitted that no such extension should be granted by this Court in exercise of its power to do so as set out in the Workplace Relations Act, 2015 (the Act of 2015) at Section 44(4).

In the interest of efficiency of process, and in view of the fact that this matter has 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.

Relevant Law

The Workplace Relations Act, 2015 ( the Act of 2015) at Section 44(3) and 44(4) 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 due to exceptional circumstances the Court should enlarge the time permissible for the making of the within appeal.

The decision of the Adjudication Officer was made on 9^thOctober 2019 and issued on that date to Mr Tom Carey, Operations Manager of the Appellant. This was done despite an undertaking given by the WRC in response to requests made in 2017 to the Workplace Relations Commission (WRC) to address all communications to Mr Neil Fitzpatrick, the Appellant’s Human Resources Manager. This was not a specific undertaking of the WRC in relation to this complaint but rather a general undertaking from the WRC in relation to any and all complaints which the WRC might receive thereafter in respect of the Appellant company.

The decision of the Adjudication Officer was eventually forwarded internally with the Appellant organisation to Mr Neil Fitzpatrick on 22^ndOctober. Due to Mr Fitzpatrick’s annual leave the decision was not seen by Mr Fitzpatrick until his return from that leave on or about 29^thOctober 2019.

Following his receipt of material, the decision was forwarded by Mr Fitzpatrick to the Appellant’s head office in the United Kingdom (UK). Mr Fitzpatrick ‘followed up’ the matter ‘a few times’ until 18^thNovember 2019.

On or about the 18^thNovember 2019 Mr Fitzpatrick, after phoning the head office, received instructions that the decision of the Adjudication Officer was to be appealed.

Mr Fitzpatrick completed the appeal form and left instructions internally in the Appellant organisation that the completed form should be issued by courier to the Labour Court. However, on subsequent enquiry, Mr Fitzpatrick established that the completed appeal form was not issued by courier as instructed but was sent, as is usual in the Appellant organisation’s offices, sent by regular post thus causing a delay of four days which ‘in no way’ could have been foreseen by the Appellant.

The Appellant asked the Court to have regard to the decision of this Court in The Grove After School Care (Management Company) and O’Sullivan (PWD 18/3) wherein the Court addressed the law applicable to its jurisdiction to extend time where the statutory test to be applied was that of reasonable cause. The Appellant submitted that it had identified to the Court the reason for the delay in making the within appeal and had established that it provides a justifiable excuse for the delay. The circumstances of the within appeal are that a significant delay was caused by the WRC through their failure to address the decision to the correct person within the Appellant company. Thus, the Appellant was not afforded the correct amount of time to appeal the decision of the Adjudication Officer.

The Appellant submitted that if the WRC had not issued the decision to the incorrect person within the Appellant organisation there would have been sufficient time for the appeal to be made. There is therefore, a causal link between between the actions of the WRC and the delay in making the within appeal to the Court.

The Appellant submitted that the delay caused by the inaccurate issue of the decision by the WRC and the internal mistake in the manner of transmission of the appeal to the Labour Court were the main contributing factors in relation to the delay in lodging the within appeal. It was submitted that, ‘on the balance of probabilities’, if either of these two factors had been avoided by ‘either design or chance’, as a matter of probability, the appeal would have been presented to the Labour Court within allowable time limits.

The Appellant submitted that from the date of receipt of the decision of the Adjudication Officer, the Appellant was aware of the statutory time limit applicable for the making of the within appeal.

The Appellant submitted that the test to be applied by the Court is a relatively low level test of reasonableness and consequently, the Appellant submitted, the Court should conclude that the appeal was not made to the Court within the applicable time limits due to the existence of exceptional circumstances and extend time accordingly.

Summary of the Complainant’s position on the preliminary issue.

The Complainant submitted that the time limits set out in the Act of 2015 at Section 44(4) for the making of the within appeal should not be extended.

The Complainant submitted that the Appellant had put forward four factors that it contended amount individually or in sum to the existence of exceptional circumstances. Specifically, the Appellant had contended that the WRC, in posting the decision of the Adjudication Officer to the Appellant had addressed it to the Operations Manager rather than the Human Resource (HR) Manager. Secondly, when the decision was eventually forwarded to the HR Manager he was on annual leave. Thirdly, when the HR manager returned from annual leave he forwarded the decision to the UK head office who, when contacted on 18^thNovember 2019, instructed that the decision should be appealed. Finally, instructions which had been left internally specifying that the appeal documentation should be transmitted to the Court by courier were not followed.

The Complainant submitted that none of these matters individually or when taken together amounted to exceptional circumstances within the meaning of the Act of 2015. The Complainant also submitted that even if the matters were considered to amount to exceptional circumstances within the meaning of the Act of 2015, none of these matters by themselves or when taken together amounted acted so as to prevent the making of the within appeal in time.

The Complainant pointed to correspondence to the Court from the Appellant dated 28^thNovember 2019 which stated that the appeal had not been posted to the Court until 19^thNovember 2019. On that basis the appeal would certainly have been received by the Court after the final date for the making of the appeal.

The Complainant submitted that at the time of the making of the within appeal the Appellant was represented by a highly experienced management consultancy firm.

Discussion and Conclusions

The Court notes that significant submissions are made to the Court by the Appellant to support a contention that the Court, under the Act of 2015, has jurisdiction to extend time for the making of an appeal where the Court is satisfied that the delay arose for reasonable cause. The Appellant has submitted authorities to support this proposition.

It is important therefore for the Court to clarify that its jurisdiction to extend time for the making of the within appeal arises from the provisions of the Act of 2015 at Section 44(4). That section makes clear that the Court’s jurisdiction is confined to circumstances where the Court is satisfied that the delay in making the appeal occurred because of the existence of exceptional circumstances.

Against the background of that understanding, the Court notes the Appellant’s submission that a main factor contributing to the delay was the failure of the WRC to adhere to a 2017 commitment it had entered into to communicate with Mr Neil Fitzpatrick, HR Manager, in respect of all matters related to the Appellant organisation in all future appeals. The Court notes that it has not been provided with documentation to support the contention that the WRC entered into such a commitment governing its interaction with the Appellant organisation in all matters.

The Appellant has submitted that the subsequent failure of the WRC to address a copy of the decision of the Adjudication Officer in the within matter to its Human Resources Manager and instead to address that decision to Mr Tom Carey, who was its Operations Manager, caused a delay from 9^thOctober 2019 to 22^ndOctober 2019. The Appellant has not addressed at all the lapse of time between its Operations Manager’s receipt of the decision of the Adjudication Officer and his conveyance of that decision to its HR Manager.

Separately, the Appellant submits that the annual leave of its HR Manager caused a delay from 22^ndOctober 2019 to 29^thOctober 2019. The Appellant has made no submission setting out the administrative arrangements, if any, in place to address operational issues which arise during the annual leave of staff other than to state that the absence of Mr Fitzpatrick on annual leave caused a delay of seven days in the making of the within appeal.

The Appellant has submitted that at or about the time of his return from annual leave, Mr Fitzpatrick transmitted the decision of the Adjudication Officer to the head office of the Appellant in the UK and that no response was received from that quarter until on or about 18^thNovember 2019. The Court has not been advised whether the head office in the United Kingdom was made specifically aware of the statutory time limits for the making of the within appeal when the decision of the Adjudication Officer was transmitted there albeit the Appellant has submitted that it was at all material times aware of the statutory time limits applying. Mr Fitzpatrick, according to the Appellant, followed up his transmission of the decision to head office ‘a few times until 18^thNovember’. The Appellant submitted that ‘on or about’ 18^thNovember Mr Fitzpatrick was informed by head office that the decision of the adjudication Officer should be appealed.

The Appellant has submitted that at all times it was aware of the statutory timeline applying to the making of the within appeal. That timeline was such as to mean that any appeal, were it to be in time, would require to be submitted to this Court by 19th November 2019. Against that background, the Appellant has submitted that it completed the appeal form on the 18^thNovember 2019 and that Mr Fitzpatrick and ‘left instructions’ for the appeal to be transmitted to the Court by courier. No submission has been made to the Court that any attempt was made to ensure the performance of this instruction by the party with whom the instruction were left. The Appellant submitted that it made enquiries into the matter after being informed by this Court that its appeal was out of time and then concluded that the appeal form had been transmitted by regular post which, in this case, is submitted to have taken four days to achieve delivery of the appeal form to the Court. The Court notes that the 18^thOctober 2019, the date upon which the Court understands it is submitted by the Appellant that the completed form was erroneously placed in the normal post, fell on a Monday and that the 22^ndNovember, the date upon which the form was received by the Court, fell on a Friday.

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 in time.

The Court addressed the issue of exceptional circumstances in its decision in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) where it stated

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.

It is for the Appellant in this appeal to establish the existence of exceptional circumstances within the meaning of Section 44(4) of the Act of 2015 and that those circumstances acted to prevent the Respondent from lodging its appeal within the time limits allowed for the making of an appeal.

The Appellant has submitted that an alleged error of the WRC caused an element of delay. A further delay was caused by the process of transmission of the document received from the WRC from the Appellant’s Operations Manager to its HR Manager. The Court has been given no basis to understand the reason for this latter lapse of time. No submission that the transmission of the decision of the Adjudication Officer to the Operations Officer of the Appellant was in any way delayed.

A further delay is submitted to have been caused by the absence of the HR manager on annual leave and what appears to have either been an absence of any arrangements in place to deal with material directed towards the HR manager while he was absent on annual leave or a failure of any such arrangements which might have been in place. No submission has been made by the Appellant on this matter.

Procedures carried out in the UK head office to decide on whether an appeal was to be initiated are contended to have required a further period of time to complete from 29^thOctober 2019 to ‘on or about’ 18^thNovember. No submission has been made which might clarify whether the relevant personnel in the UK had knowledge of the statutory timeframes applying to the within appeal. The Court notes the submission of the Appellant however that it was aware of such statutory time limits at all material times. In those circumstances, the Court makes an assumption that relevant UK personnel were fully aware at all times as regards the statutory time limits for the making of the within appeal as set out in the Act at Section 44(4).

The decision to appeal having been made, the Appellant submits that an error resulted in the placing of the appeal in the normal post on Monday 18^thNovember 2019. That appeal form was received in the normal post by the Court on 22nd November 2019. No submission has been made to account for a delay of this dimension in the transmission of the completed appeal form from the Appellant’s premises to the premises of the Court.

Applying the interpretation of the Act as set out by this Court in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey to the facts of this case, the question that arises for the Court is whether, within the meaning of the Act of 2015, any of the circumstances outlined by the Appellant are individually exceptional or whether those circumstances in combination are exceptional. If the existence of exceptional circumstances is established the Court must then consider whether those circumstances acted so as to prevent the making of the within appeal in time.

The Court takes account of the fact that, notwithstanding the contention that the WRC has undertaken to address all correspondence to this employer to a single individual and that the decision when issued was not addressed to this individual, the Appellant’s operations manager was in receipt of the decision of the WRC on or about 9^thOctober 2019. The delay that then arose resulted from whatever arrangements are in place within the appellant organisation to transmit documentation from one manager to another. A further delay arose from the apparent absence or failure of internal arrangements to deal with documents transmitted for the attention of the HR manager when he is absent on annual leave. A further delay arose from the fact that UK based head office personnel, apparently aware of the statutory timelines involved, could not arrange to make a decision on whether to initiate the within appeal for almost three weeks until the day before the expiry of the statutory timeline. Finally, the Court notes the submission that despite instructions having been left on the 18^thNovember with staff of the Appellant to send a document by courier it was in fact placed in the ordinary post.

The Court does not accept that these events constitute exceptional circumstances within the meaning of the Act at Section 44(4). The Court is satisfied in any event that the Appellant was not prevented by any of these matters or all of the matters in combination from making the within appeal in time. The Court is clear in this context that, being aware at all material times of the statutory timeline applying to the with appeal, the Appellant was in a position to make the within appeal in time and that the existence of exceptional circumstances did not prevent it doing so.

Therefore, the Court finds that the Respondent has not established that exceptional circumstances existed in this case or that any of the matters relied upon could 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

For the reasons set out above, the Court finds that the Appeal to the Court was made outside of the permissible time limits and the Appellant’s application for an extension of those time limits is not well founded. The within appeal must therefore fail.

The Court so Determines.

	Signed on behalf of the Labour Court
	Kevin Foley
DC	______________________
30 November 2020	Chairman