FULL RECOMMENDATION
PARTIES : ALTERATION CENTRE DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No.ADJ-00009115 CA-00011982-004 BACKGROUND: 2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991. A Labour Court hearing took place on 9 November 2021. The following is the Determination of the Court:- DETERMINATION: This matter comes before the Court as an appeal by The Alteration Centre (the Respondent) of a decision of an Adjudication Officer given under the Payment of Wages Act, 1991 (the Act) in a complaint made by Ms Marzena Ramza Swietlowska (the Complainant) against her former employer, the Respondent. The Adjudication Officer decided that the complaint was well founded and that the Complainant had received no pay in respect of the notice period given to her by the Respondent and that the failure to pay wages during that period amounted to an unlawful deduction within the meaning of the Act. Preliminary issue. The decision of the Adjudication Officer was made on 5thFebruary 2019. An appeal of that decision, were it to have been made in time having regard to Section 44 of the Workplace Relations Act, 2015 (the Act of 2015) would have to have been made by 18thMarch 2019. The Respondent e-mailed the Court on 15thMarch 2019 and stated as follows: “I refer to the above cases and wish to apply for appeals on behalf of the Respondent. Hard copies will follow.” This was the full text of the mail of 15thMarch 2015. On 20thMarch 2019, the Court received an appeal from the Respondent. That appeal utilised the form drawn up by the Court for the purpose of giving notice to the Court of an appeal of a decision of an Adjudication Officer. The Respondent covered that form with a letter which stated the following: ‘I refer to the above case and wish to lodge an appeal on behalf of the Respondent’. A member of the administrative staff of the Court wrote to the Respondent by letter dated 20thMarch 2019. That letter acknowledged receipt of an appeal on 20thMarch 2019 and went on to advise that the appeal had been received outside of the time allowed by the statute. Finally, the letter drew the attention of the Respondent to Section 44(2) and Section 44(4) of the Act of 2015. That latter section deals with the jurisdiction of the Court to extend time for the making of an appeal. On 21stMarch, a member of the administrative staff of the Court mailed the Respondent to say that the letter of the 20thMarch was an error and that it could be disregarded. The Respondent submitted to the Court at its hearing that the mail provided to the Court on the 15thMarch 2019 amounted to an appeal within the meaning of the Act. The Respondent asserted that no application was being made to the Court to exercise its jurisdiction under Section 44(4) of the Act to extend time for the making of an appeal. The Respondent submitted that that the e-mail it had received from the administrative staff of the Court dated 20thMarch 2019 confirmed that the Court had accepted the mail of 15thMarch 2019 as a valid appeal of the decision of the Adjudication Officer. The Complainant, who was unrepresented, made no submission in relation to the preliminary matter. Relevant Law The Industrial Relations Act, 1946 at Section 20(5) makes provision as follows: (5) Subject to this section, the Court may make rules for the regulation of its proceedings. The Workplace Relations Act, 2015 at Section 44 makes provision in relevant part as follows: 44. (1) (a) A party to proceedings under section 41 may appeal a decision of an adjudication officer given in those proceedings to the Labour Court (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 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. Labour Court Rules 2019, which were the Rules of the Court drawn up under Section 20 of the Industrial Relations, Act 1946 and in being at the time of the making of the within appeal made provision as follows: The provisions of this Part of the Rules relate to the procedure to be used in appeals against the decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 and the Employment Equality Acts 1998 - 2015. 1. The appeal shall be initiated by notice in writing delivered to the Court within 42 days from the date of the decision being appealed. In accordance with the provisions of the Interpretation Act 2005 the date of the decision is day 1 of the 42-day period. 2. If the appeal is not made within the requisite 42 days, then as part of the appeal an application should be made in writing to the Court in accordance with Section 44(4) of the 2015 Act, to extend time for bringing an appeal and giving the grounds upon which the extension is sought. Such an extension of time will only be granted in exceptional circumstances. The grounds for any such extension of time should from part of the submission. 3. The notice of appeal shall be accompanied by a copy of the decision of the Adjudication Officer to which the appeal relates and shall contain the following particulars: - (a) The name, phone number, address and email address of the Appellant; (b) The name, phone number, address and email address of the Appellant’s representative if any; (c) The name, phone number, address and email address of the Respondent; (d) The name, phone number, address and email address of the Respondent’s representative if any; (e) Brief details of the grounds of appeal. 4. The notice referred to at 3 above shall be given on a form provided by the Court for that purpose. Conclusion of the Court The Court considered carefully the submission of the Respondent on the preliminary matter. The matter of whether an appeal made under the statute is a valid appeal is a matter for a decision of the Court exercising its jurisdiction under the Act. A letter or an e-mail from an administrative member of staff cannot be taken as a communication of a statutory decision of the Court unless that communication is related to a decision of Court taken by a division of the Court assigned to the matter by the Chairman of the Court in accordance with Section 20 of the Industrial Relations Act, 1946 and Section 3 of the Industrial Relations Act, 1969. An administrative error cannot confer jurisdiction in the matter on the administrative staff of the Court. The matter remains a matter for decision by the Court itself. The Court, while accepting that the administrative communication of 21stMarch 2019 may have been misleading or causative of confusion, concludes that the chronology of events clearly demonstrates that the administrative communication of the staff member of the Court post-dated the receipt by the Court of communications from the Respondent on 15thand 20thMarch 2019. The communication from the Respondent on 20thMarch 2019 contained an appeal from the Respondent in the manner set out in the Act and the Rules of the Court 2019, was on the form provided for the purpose by the Court and contained the details set out in the Rules of the Court 2019. The administrative communication dated 21stMarch 2019 therefore cannot be contended to have had an effect on the timing or nature of communications from the Respondent to the Court in making the within appeal. The Court notes the content of the letter received from the Respondent on 20thMarch 2019 which covered the completed form. That letter advised the Court that the Respondent wished to ‘lodge an appeal on behalf of the Respondent’ and the documentation attached to that letter constituted 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’. The Court concludes that the e-mail of 15thMarch 2019 was not a notice of appeal given to the Court in the manner set out in Section 44(2) of the Workplace Relations Act, 2015 and Rules 1, 2and 3 of Labour Court Rules 2019 which took effect on 21stJanuary 2019. No application to extend time for the making of an appeal has been made by the Respondent and therefore the Court concludes that the within appeal was not made within the time permitted for the making of an appeal. Decision The Court decides that the appeal of the Respondent must fail and that the decision of the Adjudication Officer is affirmed. The Court so decides.
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