PDD212

1.Appeal of Adjudication Officer Decision no. ADJ-00021468, CA-00028236-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26^thMay 2020. A Labour Court hearing took place on 22^ndJanuary 2020. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Mr Gavin Bailey of an Adjudication Officer’s Decision ADJ-00021468, CA-00028236-001 under the Protected Disclosure Act, 2014 in a complaint of penalisation as defined by the 2014 Act, against his employer, Irish Prison Service. The Adjudication Officer held that the complaint was not well founded.

The Decision of the Adjudication Officer was issued on 1st April 2020. The appeal was presented to the Labour Court on 26th May 2020, two weeks outside the statutory time limit provided for in Section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’).

Mr Bailey (hereinafter referred to as “the Applicant”) is seeking, nevertheless, to have the appeal admitted, in accordance with Section 44(4) of the 2015 Act. He asserts that his appeal was made outside of time ‘due to the existence of exceptional circumstances’. The Irish Prison Service (hereinafter referred to as “the Respondent”) objected to the application.

Preliminary Issue – Time Limit and Application for an Extension of Time

Mr Padraig D Lyons, B.L., instructed by Costello Solicitors, on behalf of the Applicant submitted that there were exceptional circumstances for the late presentation of his appeal to the Court. He said that these related principally to the implications of Covid 19 restrictions which preventing him from consulting with his legal representatives, thereby resulting in him changing Solicitors and secondly, the restrictions prevented him from lodging his appeal at the Court, due to the closure of its offices.

Mr Peter Leonard, B.L., instructed by the Chief State Solicitors’ Office, contended that changing solicitors did not amount to exceptional circumstances. He referred to the fact that although late, the Applicant did eventually submit the Appeal Form himself, without recourse to legal advice. Mr Leonard submitted therefore that the appeal lodged was not valid, consequently the Court has no jurisdiction to hear the appeal.

The Applicant gave evidence to the Court. He told the Court that he had engaged Solicitors and Counsel for his hearing before the Adjudication Officer which was held on 16th December 2019. He said that shortly after the Adjudication Officer’s Decision was issued (1st April 2020), he received a copy of the Decision. He said that he then set about contacting his Solicitors but due to Covid 19 restrictions, their offices were closed and it was very difficult to contact them and he could not go and meet with them.

He said that within a week or two of receiving the Decision, his Solicitor informed him that he had 42-days to make an appeal, however, he was most anxious to seek feedback on the Adjudication Officer’s Decision in order to decide whether or not to appeal but was unable to have a meeting with them. He said that he emailed his Solicitor on 29th April 2020 asking about the possible grounds for an appeal and did not receive a response until 14th or 15th May 2020, which was outside the 42-day time limit. Following which he decided to change Solicitors and did so after he lodged his appeal.

The Applicant said that he tried to telephone the Court within the 42-day limit but without success due to Covid 19 restrictions and eventually he downloaded the Appeal Form and filled it in by hand, without having had advice from his Solicitors. He told the Court that on either 11th or 12th May 2020 he went to the Court’s offices on Lansdowne Road, but as all doors were locked due to Covid 19 restrictions, he was unable to lodge his appeal. He then emailed the Court on 15thMay 2020 and received information on seeking an extension of time for the lodging of his appeal. He submitted his appeal and application for an extension on 26th May 2020.

He explained that around the deadline date he was very busy at work due to a change in his role and furthermore, he said that he had great difficulty in getting access to a scanner in order to send the completed Appeal Form to the Court. In answer to questions from the Court, he said that he did not think of posting the Form at the time as he was distracted by how busy he was due to his work commitments.

The Law

Section 44 of the Workplace Relations Act 2015,provides

“(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.”

Court’s Findings

It is not in dispute that the appeal was lodged outside the 42-day time limit. The Adjudication Officer’s Decision is dated 1st April 2020, therefore the final day for lodging the appeal was 12th May 2020, it was not lodged with the Court until 26thMay 2020, therefore, it was not brought within the relevant statutory time limit as decreed by Section 44(3) of the 2015 Act.

In support of their respective positions, both parties relied upon the Decision inGaelscoil Thulach na nOg and Joyce Fitzimons-MarkeyEET034, where the Court found:-

“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”. Mr Lyons relied on this case in support of his contention that the Applicant had made every effort to bring his appeal before the Court but was prevented from doing so mostly due to Covid 19 restrictions, which he submitted were exceptional and unprecedented.

Whereas, Mr Leonard submitted that there no exceptional circumstances in this case, he contended that there was an onus on the Applicant to use good sense in circumstances where there is a pandemic and ensure that he lodged him appeal in time by whatever means. He pointed to the Court’s reference inGaelscoilto the following:-

“However, the existence of exceptional circumstances alone cannot avail the applicant. She must also show that the exceptional circumstances operated so as to prevent her from presenting her complaint in time”.

The Court notes that within two weeks of receiving the Adjudication Officer’s Decision, the Applicant had been advised by his Solicitor that the time lime for lodging his appeal was 42 days, therefore he was fully aware of the necessity to have his appeal in in time. While it is clearly regrettable that he was unable to obtain legal advice on an appeal, this did not prevent him from lodging his appeal, which he told the Court he attempted to do on day 41 or 42, when he went to the Court’s offices to lodge the appeal.

Restrictions imposed by Covid 19 have resulted in offices being closed down for certain periods, however, the Court continued to work remotely and has received numerous in-time Appeal Forms during these difficult times. Therefore, the Court cannot accept that Covid 19 prevented the Applicant from submitting his Appeal Form in time. Furthermore, it is clear to the Court that he did not change Solicitors until after he lodged his appeal.

He had the benefit of legal advice from his original Solicitors regarding the 42-day deadline in plenty of time for him to lodge his appeal and was clearly mindful of that necessity as he attempted to do so on 11th or 12th May 2020. However, for no apparent reason, he did not lodge it for a further two weeks and did so without the inclusion of legal advice. Finally, the Court could not accept that the Applicant’s busy work commitment could amount to ‘exceptional circumstances’ within the meaning of Section 44(4) of the 2015 Act.

Determination

In such circumstances of this case, the Court must conclude that no exceptional circumstances prevented the Applicant from lodging his appeal within the time set out in the Act.

The Court determines that the within appeal was made outside of the time limit set down at Section 44(3) of the 2015 Act and consequently the Court does not have jurisdiction to hear the appeal.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
H.M.	______________________
01 February 2021	Deputy Chairman