FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : AN EMPLOYER - AND - A WORKER DIVISION :
SUBJECT: 1.An Appeal of an Adjudication Officer's Decision No(s)ADJ-00006370 CA-00008724-002 As the case contains statements by the Complainant regarding his mental health, the Court has exercised its power to anonymise the parties in order to respect the Complainant’s right to privacy regarding his health. Preliminary Issue The Decision being appealed was issued on 24 January 2018. The Labour Court received an appeal from the Complainant on 18 February 2020. Section 44 of the Workplace Relations Act 2015 reads as follows; (2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates. (3) Subject tosubsection (4), a notice undersubsection (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 undersubsection (2)may be given to it after the expiration of the period specified insubsection (3)if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances. As the Complainant’s appeal was not received within the 42 days specified in s. 44(3), it is necessary for the Court to consider if there are ‘exceptional circumstances’, as per s.44(4), such that the Court can be satisfied that the appeal could not have been submitted within the 42 days. The parties were invited to make submissions on this point. Summary of Complainant’s Arguments. The Complainant stated that he was under psychiatric care for two years after the WRC hearing , that he had been hospitalised for three months and had twice attempted suicide and that he was incapacitated to a degree that prevented him from submitting an appeal within the 42 days. The Complainant outlined issues that he said had arisen with his legal representative in the proceedings at the WRC. TheComplainant argued that the WRC had ruled against his case on groundsthat the Embassy had legal immunity and this was what he had believed to be the legal situation until the case ofKanj v.The State of Kuwait (UDD 1940)established that such immunity did not extend to cases such as his. Summary of Respondent’s Case. The Respondent stated that no medical evidence had been provided to the Court to support the argument that the Complainant was incapacitated such that he was prevented from submitting his appeal in time. Any alleged issues between the Complainant and his legal representative were matters between them and were not of relevance to the Court’s consideration of the issue before it. A finding by any court subsequent to the expiry of a prescribed period for the submission of an appeal cannot be a basis to justify delaying the submission of the appeal. Courts interpret the law in accordance with the circumstances of a case and case law develops. The case quoted relied on case law that was known when the Complainant’s case was before the WRC and the outcome did not change the law. Deliberation and Determination The Court has accepted in the past that medical circumstances can be a factor to be taken into account when determining if there were exceptional circumstances that warrant an extension of the appeal period. In the instant case, the Court notes the fact that the first time the Complainant made reference to his medical circumstances to explain, in part, his delay in submitting an appeal was at the Court hearing. The Court notes also that no medical evidence in support of this claim was provided to the Court. The Complainant offered to provide medical records to the Court subsequent to the hearing. This was considered by the Court. However, there is no doubt that the Complainant was well aware that his failure to appeal within 42 days was an issue for the Court and that he was aware of the need for him to make his case to the satisfaction of the Court that there were exceptional circumstances that prevented him from doing so. If he wished to make an argument based on a medical condition, it was incumbent on him to provide medical evidence to support this and he had ample time between the receipt of his appeal and the Court hearing to compile such evidence and to present any documentary evidence to the Court and the other party in advance of the hearing. Even allowing for the fact that he represented himself in the proceedings, there is no obvious reason why he did not do so and there is no obvious reason why the Court should extend an exceptional privilege to him by allowing him to do so after the hearing. Not for the first time, the Court is required to point out that it does not possess any medical expertise and that if a party wishes to put forward an argument of a medical nature, the Court will require that argument to be backed up with medical evidence. In this case, such evidence would involve not just medical records but also, most likely, medical testimony or other corroborative evidence to substantiate an argument not just to establish a medical condition but also that the nature of any such condition is such that it would render the Complainant unable to submit an appeal within 42 days of a WRC hearing. In the absence of such evidence, the Complainant has not made a case to the satisfaction of the Court that would justify an acceptance that what he advised the Court regarding his medical condition is a sufficient basis for the Court to conclude that there were ‘exceptional circumstances’ that would warrant extending the time for appeal from 42 days to more than two years. The Court is obliged to deal with the fact that the Complainant stated at the hearing that he had some, but not all, medical records with him and could have given them to the Court on the day if this case had been heard in a physical court room which, he stated, he was led to believe was to be the case when he was notified of the hearing. The Complainant was notified by letter dated 27 October 2020 that the case would be heard remotely, so, while he may have misunderstood, there is no doubt that he should have known that this case was going to be heard remotely. In any event, as noted above, partial medical records, even if accepted on the day of the hearing, (and this would have been a matter on which the Court would have invited submissions before deciding to accept them or not), could not have been sufficient, on their own, to enable the Court to determine that not only did the Complainant have a medical condition at the relevant time but also that the nature of that condition would have rendered him incapable of submitting an appeal within 42 days of the WRC hearing. The Court notes, in any event, that the Complainant advised the hearing that his medical record was not the main reason being put forward by him for the delay in submitting his appeal. The Court is not in a position to judge if any allegations made by the Complainant regarding his former legal representation have any validity and it would be unfair to the Complainant and to his former representatives, who are not party to the Court proceedings, for the Court to offer any observations on these allegations. It is sufficient for the Court to note that any alleged problems are a matter for a different forum and that, given the allegations relate to the conduct of the WRC proceedings, they offer no reason to explain the fact that the Complainant failed to appeal within 42 days of those proceedings.The Complainant accepted in the Court hearing that this was the first time that he had offered this as a reason for the delay in submitting his appeal. The initial communication received by the Court from the Complainant regarding his wish to make what he called a ‘late appeal’ referred specifically to the ‘Kanj’case. In his view, this case contradicted the outcome of the finding of the WRC in his case and gave a basis for appeal. The question of whether or not that case gave grounds for the Complainant’s substantive appeal is not before the Court at this point. The relevance of the case, as argued by the Complainant, is that, he says, it gave grounds to justify a delay in his appeal beyond the 42 days specified in s. 44(3) of the 2015 Act. It seems that this is the main basis for the Complainant’s argument that he was not in a position to appeal within 42 days. The Respondent’s representative arguedinter aliathat the‘Kanj’case did not change the law. That is an arguable point that might very well arise for argument in some future case. The Court will not offer its views as it is not pertinent to the issue to which the Court must give consideration i.e. does the outcome of that case create ‘exceptional circumstances’ that justify the Complainant’s failure to appeal within 42 days? In this regard, it is simply a fact that there is nothing exceptional about developing case law. It is an everyday occurrence and an ongoing part of our legal system. If litigants are to be permitted to ignore time limits for the submission of appeals in the hope that case law might develop in their favour, then there is clearly no point in any legislation specifying time limits as they will become meaningless. If the Complainant disagreed with the WRC Decision, he had the opportunity to appeal within 42 days. The fact that he did not do so and that, a considerable time period later, a subsequent case was, in his view, helpful to his appeal is not, by any stretch of the imagination, an exceptional circumstance and it could not warrant the Court to conclude that he was unable to submit his appeal within the usually required 42 days. Taking account of all arguments, the Court is not satisfied that a case has been made to justify the failure by the Complainant to submit an appeal within 42 days. The Court, therefore, cannot hear the appeal and the Court determines that the Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
