FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : FOURNIER LABORATORIES IRELAND LTD (REPRESENTED KEVIN BELL B.L., INSTRUCTED BY MATHESON SOLICITORS) - AND - MR OLIVER BARTHOD-MALAT (REPRESENTED BY TJOS SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00023564 CA-00030179-001. This is an appeal by Olivier Barthod-Malat (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00023564, dated 16 December 2019). Notice of Appeal was received by the Court on 27 January 2020 which is one day outside the forty-two-day period provided for in section 44(3) of the Workplace Relations Act 2015 (‘the Act’). The Court convened in a virtual courtroom on 11 September 2020 to hear the Parties in relation to the jurisdictional issue that arises in this case. Further written submissions were requested of, and received from, the Parties. Both Parties agreed to the Court making a determination in relation to the time-limit issue ‘on the papers’. The Law The within appeal has been referred to the Court pursuant to section 8A of the Unfair Dismissals Act 1977 subsection (2) of which provides: “(2) Section 44 of the Workplace Relations Act 2015 shall apply to a decision of an adjudication officer given in respect of a claim for redress under this Act by an employee as it applies to a decision of an adjudication officer given in proceedings under section 41 of that Act, subject to the following modifications: (a) the substitution of the following subsection for subsection (1) : ‘(1) (a) A party to a claim for redress under the Act of 1977 may appeal a decision of an adjudication officer given in relation to that claim to the Labour Court and, where the party does so, the Labour Court shall— (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal, (ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and (iii) give the parties to the appeal a copy of that decision in writing. (b) A decision of the Labour Court under paragraph (a), may include an award of redress under section 7 of the Act of 1977.’; and (b) any other necessary modifications.” The relevant provisions of Section 44 of the Act states: “(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.” Facts surrounding submission of the AppealIt is submitted on behalf of the Complainant that the decision of the Adjudication Officer under appeal issued on 16 December 2019 and was, therefore, delivered to his Solicitors’ office on a subsequent date during a one-month long period (between 13 December 2019 and 13 January 2020) when that office was closed for the Christmas break. A consultation appears to have taken place between the Complainant and his Solicitor on 14 January 2020 in the course of which the Complainant instructed his Solicitor to resume discussions with Counsel for the Respondent (Fournier Laboratories Ireland Limited) with a view to compromising the matter and thus obviating the need for an appeal to this Court. By 24 January 2020, it appeared to the Complainant and his Solicitor that compromise terms could not be agreed and the Complainant instructed his solicitor to file a notice of appeal which he duly did, and which was received by the Court on 27 January 2020. Submission of the Parties in relation to the Time Issue The Complainant submits that he has complied with section 44(3) of the Act as his Notice of Appeal was posted on 24 January 2020 and must therefore be deemed to have been “given to the Labour Court”, within the meaning of the subsection, on that date. In the alternative, the Complainant submits that the Complainant’s inability to access his Solicitor during the period 13 December 2019 to 13 January 2020 constitutes exceptional circumstances within the meaning of section 44(4). He is seeking an extension of time to allow for his appeal to be accepted by the Court on that basis. In this context, the Complainant has requested the Court to consider the High Court’s interpretation of the rules governing the extension of appeals to that Court. The Respondent submits that the Complainant’s interpretation of the words “given to the Labour Court” in section 44(3) of the Act is incorrect and the plain words of that subsection do not bear the meaning ascribed to them by the Complainant. The Respondent draws copiously from the jurisprudence of the Court in relation to section 44 of the Act in support of its submission that “unless the Labour Court has received a notice of appeal within the 42 days prescribed by the section the appeal is out of time.” The Respondent further submits that the Complainant has not disclosed any exceptional circumstances that can be said to have caused the late filing of his Notice of Appeal. Discussion and Decision This Court has consistently held that the date on which a Notice of Appeal is received by it is the date on which that Notice is given to it for the purposes of section 44(3) of the Act: see, for example,Aiseiri Ltd v McCormackPTW/16/3;Galway Roscommon ETB v KennyUD/16/62 andRS247 Resources Limited v NewmannUD/16/117. The Court held inDomestic & General Properties Ltd v PopaUD/18/15 that a legal adviser’s absence on his Christmas holidays does not constitute exceptional circumstances within the meaning of section 44 of the Act. In any event, by his own submission, the Complainant accepts that he was aware of the Adjudication Officer’s decision on 13 January 2020, at which point he still had thirteen days within which to ensure any Notice of Appeal was received by the Court. The Complainant says he immediately resumed his engagement with the Respondent at the time to attempt a settlement. Notwithstanding this, it seems to the Court that the prudent thing to do in such circumstances would have been to file the Notice of Appeal with a view to withdrawing it later should the matter settle. Finally, the Court has considered the Complainant’s submission in relation to the recent jurisprudence of the High Court concerning extensions of time for bringing appeals in the Superior Courts and in particular the flexible approach taken by the High Court where the refusal of an application to extend time would lead, in the Court’s view, to an injustice. This Court enjoys no such discretion. In considering an application to extend time to bring an appeal, this Court is bound by section 44(4) of the Act. Having regard to the foregoing, the Court finds that the within appeal was received outside the time-limit specified in section 44(3) of the Act. It further finds that the Complainant has not demonstrated that there were any exceptional circumstances within the meaning of section 44(4) of the Act that prevented him filing his Notice of Appeal within time. The Court, therefore, declines jurisdiction to hear the appeal. The Adjudication Officer’s decision, therefore, stands. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
