FULL RECOMMENDATION
SECTION 29 (1), SAFETY HEALTH AND WELFARE AT WORK ACTS , 2005 TO 2014 PARTIES : ROSEMARY CROWLEY AND OWEN SWAINE T/A SWAINE SOLICITORS REPRESENTED BY MR. TIM DIXON BL INSTRUCTED BY SWAINE SOLICITORS - AND - MS AGNES O'CONNOR DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00013087 CA-00017304-004. The Court was convened to consider an application by Ms. O’ Connor, ‘the Complainant’, under s. 44(4) of the Workplace Relations Act 2015 to hear an appeal under the Safety, Health and Welfare at Work Act 2005, ‘the Act’, as there were exceptional circumstances that prevented her from lodging said appeal within 42 days. The Complainant had made a complaint to the Workplace Relations Commission, ‘WRC’, against Swaine Solicitors, ‘the Respondent’ under the Act. The Complainant lodged an appeal of the Adjudication Officer’s decision with the Court. The Decision was dated 29 April 2019. The appeal was received by the Court on 10 June 2019 i.e. 43 days after the date of the Decision. S. 44(3) of the Workplace Relations Act provides that appeals of Decisions from the WRC must be received within 42 days. S. 44(4) of the said Act allows the Court to extend this period where there are ‘exceptional circumstances’ and the Complainant asked the Court to extend the period in accordance with this provision. Summary of Complainant arguments. The Court was closed on 8 and 9 June 2019. The appeal was posted on 6 June 2019. The Court being closed was an obstacle to the appeal being lodged within the limitation period. The Circuit Court Rules 2001 (S.I. No. 510 of 2001) state that where the time for any act expires on a week-end day, the act shall be held to be done on the day when the office is next open. The Complainant was grieving the death of a friend in April 2019. She was distracted and not focused. She believed that her appeal was in time, having been posted in advance of the expiry of 42 days. No prejudice was suffered by the Respondent by virtue of a delay of one day, which was due to the 42ndday falling on a Sunday. By contrast, failure to hear the appeal would cause considerable prejudice to the Complainant. As noted in the case ofCementation Skanska v. Carroll DWT0338,the Court has to take account of the prejudice suffered by parties in determining these matters. There is an important point regarding access to justice involved. It would be unfair for the Court not to hear the appeal in the circumstances. Summary of Respondent arguments. The oral presentation at the hearing of the Court is the first time that the Complainant has made an argument to justify the delay in submitting the appeal based on the death of a friend. There is an issue of credibility. No medical evidence of any condition due to bereavement has been submitted. Sadly, there is nothing exceptional about bereavement itself. Six weeks is a generous period within which appeals are permitted. Even if a party suffered a bereavement in that period, there is plenty of time to devote to making an appeal. There is nothing exceptional about the 42ndday falling on a Saturday or Sunday. It is a statistical fact, with five working days and two weekend days, that the 42ndday after a decision is likely to fall on a weekend day in one quarter of cases. The Respondent is entitled to certainty. The Act provides it. It is only if exceptional circumstances can be shown that the Court has discretion to extend the period for appeal. A bald assertion of incapacity due to bereavement with no back up evidence cannot meet this requirement. In theCementation Skanskacase, see above, it was noted that any circumstance being relied upon to warrant an extension of the appeal period must both explain the delay and afford an excuse for it. Neither condition is met in the circumstances of this case. The applicable law. Workplace Relations Act 2015. Section 44. (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 Deliberation The Court noted that the Complainant made an argument that the 42ndday after the date of the Decision being appealed fell on a Sunday, resulting in the appeal not being received by the Court until the following day and that the Court should take account of this. A late submission from the Complainant set out arguments on this point, including case law, regarding a flexible interpretation of s.44(3) of the 2015 Act. As noted above, s.44(3) of the 2015 Act refers expressly to 42 days and no allowance is made in the Act for account to be taken of when the 42ndday falls. It is, therefore, not a matter on which this Court has any discretion. The only discretion permitted to the Court is that contained within s.44(4) and it is the request made to the Court under this section that was the subject of the Court hearing. The Complainant relies upon an argument that bereavement left her unfocused and unable to ensure that her appeal was on time. However, she acknowledged that she had not produced any medical evidence to show that she was medically incapable of meeting the deadline required. The Court concurs with the argument made for the Respondent that it would be unsafe for the Court to rely on an unsubstantiated assertion of incapacity. The Complainant makes an argument that, in the interests of access to justice, the Court should overlook a delay of one day in her appeal being received. The Court has no such discretion. The only discretion available to the Court is to consider if the Complainant has put forward compelling arguments to show that there were exceptional circumstances, such that she could not have submitted her appeal in time. The onus for doing so, is on the Complainant. In making her argument, the Complainant, correctly, says that the Court should consider the extent to which a Respondent might be prejudiced by a delay. However, the Court may only do so if some exceptional circumstances have been put before it that both explain the delay and provide an excuse for it, as per theCementation Skanskacase. As was noted in the case ofJoyce Fitzsimons Markey v. Gaelscoil Thulach no nOg (2004) ELR 110,the first requirement of the Court is to establish if there were exceptional circumstances and then, if so, whether those circumstances operated to prevent the appeal being made in time. The Court is not satisfied that any exceptional circumstance has been provided to it to explain or to justify the delay in the appeal. Every week contains a Saturday and a Sunday. There is nothing exceptional about the 42ndday after a decision falling on one of those days. Likewise, sadly, bereavement is unexceptional. Bereavement can render people incapable of undertaking even important tasks. However, as noted many times, this Court has no medical expertise and any party before the Court that wishes to rely on medical arguments must support such arguments with clear medical evidence. That has not been done in this case. The Court cannot see any basis for extending the time allowed for appeal in this case. Determination As the Court cannot hear the appeal, the decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
