FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES : MATHEWS PROPERTY MANAGEMENT LIMITED (REPRESENTED BY MR. JOHN CONNELLAN, CARLEY AND CONELLAN SOLICITORS) - AND - MR EDWARD SMITH DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No: ADJ-00028407 Mr. Smith, ‘the Complainant’ was employed as an Accountant by Matthews Property Management Limited, ‘the Respondent’. He lodged a claim under the Redundancy Payments Act with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, upheld the claim and decided that a redundancy payment was due in respect of the Complainant’s service from 9 March 2006 to 31 December 2019, based on an amount of €351 per week. The Respondent states that they accept this Decision. However, there was a disagreement between the parties, as a result of which the money was not paid. The Complainant lodged an appeal with this Court. A preliminary issue arose for consideration by the Court in the first instance. The Decision of the AO is dated 3 March 2021. In accordance with the provisions of the Workplace Relations Act 2015, the appeal should have been lodged with the Court within 42 days i.e. by 13 April 2021. The appeal was submitted on 16 April 2021. S.44(4) of the 2015 Act gives the Court discretion to extend this period if it is satisfied that there were exceptional circumstances that prevented the appeal being lodged within the 42 days. Both parties were invited to make submissions to the Court on the question of whether such exceptional circumstances exist, such that the Court should exercise its discretion to extend the period. SUMMARY OF COMPLAINANT ARGUMENTS ON PRELIMINARY POINT: The Complainant was unwell on 13 and 14 April 2021. The frame of the Complainant’s glasses were twisted and he arranged an emergency appointment for 15 April 2021, so that he was unable to submit his appeal until 16 April 2021 as his second pair were most likely in his car when it was stolen in 2019. This made him very unwell and exacerbated the stress for him. The Respondent has refused to make the payment directed by the Adjudication Officer. The life and health of the Complainant have been affected by the actions of the Respondent. The Complainant only understood the full detailed significance of the late appeal about two weeks prior to the hearing. SUMMARY OF RESPONDENT ARGUMENTS ON PRELIMINARY POINT: The Respondent is prepared to pay the amount awarded by the Adjudication Officer once they receive the relevant Bank details from the Complainant. The Complainant offers an explanation for the 41stand 42ndday after the date of the AO Decision. He offers no explanation for the previous 40 days. What happened after the 42 day period is irrelevant. The theft of the Complainant’s car in 2019 is not relevant. The Court is referred toDunne v. Clifford TE/19/50,in which it was noted that there must be exceptional circumstances in existence and that these circumstances must justify the delay beyond 42 days. The Court is referred also to the case ofGaelscoil Thulach na nOg v. Joyce Fitzsimons Markey, EET 034,in which the term ‘exceptional circumstances’ was examined and in which it was noted that the burden of proof rested firmly on the party seeking to rely on the existence of such circumstances. It is notable that no reason is given at all for the delay up to 13 April 2021. The appeal by the Complainant is not in the correct form, seeParkgate Lounge Abbot Lounge v. Sazzad Hossain, RPA/20/17. THE APPLICABLE LAW: Workplace Relations Act, 2015 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: This type of application is considered by the Court on a reasonably regular basis. As the Court noted in the case ofGaelscoil Thulach na nOg v Joyce Fitzsimons Markey (EET034),the nature of such applications requires that each case must be decided on its own circumstances and a decision in one case is no more than a rough guide to decisions in others. However, that case itself, (cited also inKylemore Services Group/Home Fare Services Ltd v. Terrie Clarke (DEC-E2015-160),considered the application of the test to determine whether ‘exceptional circumstances’ apply. The Court 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 (seeR v Kelly[1999] 2 All ER 13 at 20 per Lord Bingham CJ.)” In cases of this type, an applicant seeking to be treated as an exceptional case warranting a time extension for lodging an appeal must both explain the delay and offer a justifiable reason for it. The Complainant offers no explanation for the failure to submit his appeal within the first 40 of the 42 day period. While an explanation of ill health is offered for day 41 and day 42, no medical evidence is provided to support this claim and, even if it was supplied, it could not explain why an appeal was not submitted earlier. The Respondent is correct to note that what happened after day 42 is of no interest to the Court, unless the failure to submit the appeal within the prescribed 42 days is deemed to be justifiable due to ‘exceptional circumstances’. Unfortunately for the Complainant, for a party to find themselves to be unwell on two out of forty two days cannot be said to be out of the ordinary course, unusual, special or uncommon. The Court is not satisfied that exceptional circumstances have been established and, as a result, the Court does not have jurisdiction to hear the substantive appeal. In light of this, it is not necessary for the Court to give consideration to the question of whether the format of the appeal was in an acceptable form. The Court notes the stated willingness of the Respondent to implement the decision of the Adjudication Officer. DETERMINATION: The appeal is out of time. The Decision of the Adjudication Officer is affirmed.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |
