FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DR. DIARMUID MURRAY SENIOR (REPRESENTED BY ALAN LEDWITH, B.L., INSTRUCTED BY O'DYWER SOLICITORS) - AND - MS CATHERINE MC LOUGHLIN (REPRESENTED BY CALLAN TANSEY SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Decision No:ADJ-00015310 -CA00019936-001dated the 19 November 2019. An Adjudication Officer found that her complaint against Dr. Murray, ‘the Respondent’, under the Acts was not well founded. Preliminary Issue. The appeal form was received by the Court outside the statutory time limits set out in section 44(3) of the Workplace Relations Act 2015 (“the 2015 Act”). The Complainant applied for an extension of time in which to bring the appeal in accordance with Rule 2 of the Labour Court Rules 2020. The Court decided to hear the preliminary issue of whether an extension of time can be granted in accordance with section 44(4) of the 2015 Act. The Court made this decision in the interest of efficiency of process as a determination on this matter could be determinative of the appeal in its entirety. It is not in dispute that in order to come within the statutory time limit set out in section 44(2) of the 2015 Act the appeal should have been given to the Court on or before 30 December 2019. Both parties provided the Court with submissions on this matter. Summary of Complainant arguments on the preliminary issue. The appeal was sent to the Court by registered post on 20 December 2019. It was marked as received on 2 January 2020. It was reasonable to assume that a registered letter posted on 20 December would arrive at its destination before 30 December. The An Post latest day for posting in order for post to arrive before Christmas was 20 December 2019. The registered letter could not be delivered because, it appears that the offices of the Court were shut on the 23, 24, 27 and 30 December 2019 and, for that reason, delivery could not be effected. The Complainant’s representative provided the Court with a Certificate of Posting from An Post that confirmed posting of a registered letter to the Labour Court on 20 December 2019 at 5.25 a.m. The Complainant’s representative also provided the Court with a copy of an email from An Post Customer Services dated 21 April 2021, confirming that the appeal was posted from Boyle on 20 December 2019 at 16.26; that there were four subsequent delivery attempts regarding this item and that the failure of these attempts was due to the business being closed; the item was delivered on 2 January 2020 at 11.49. Proof of delivery on 2 January 2020 was also attached. It appears that the offices of the Court were closed on 23, 24,27 and 30 December, days which were not public holidays. The Complainant did not expect that the Court offices would be closed on days other than public holidays over the Christmas period and no notice was received or published to that effect. It was reasonable to expect that the Court would have been open to receive registered post on those days, which were not public holidays. Summary of Respondent arguments on the preliminary issue. No exceptional circumstances arise. The Christmas period occurs every year and every year An Post issues notices and advertisements warning customers of delays due to high volumes. The Complainant and her representatives should have taken appropriate steps to ensure delivery in time. No alternative modes of delivery appear to have been considered. It is necessary for the Complainant to establish that there were exceptional circumstances and that those circumstances prevented the appeal being delivered in time. The Court set out what is required to establish that circumstances are exceptional in the case ofGaelscoil Thulach na nOg v. Joyce Fitzsimons-Markey EET034.The Complainant has not established exceptional circumstances nor, if there were such circumstances, that they prevented the appeal being filed in the specified time frame. The applicable law The Complainant’s representative is not contending that the failure to give the appeal notice to the Labour Court within the 42-day time limit arises because of any delay on the part of the postal service. Rather, the contention is that the appeal notice could not have been delivered in time because the Court offices were closed on non-public holidays without notice and because there were no arrangements in place for the delivery of post during that time. The email from An Post does not specify the dates of the attempted deliveries. The Complainant’s submission on the matter referred to attempted deliveries on 23 ,24, 27 and 30 December. In the course of the hearing, this was clarified and the Complainant’s representative said that the Complainant was informed by An Post that attempts to deliver were made on 23, 24, 27 and 31 December 2019. No documentary evidence was provided to the Court to substantiate the claim in respect of any particular dates. The Complainant’s representative stated to the Court that his client had contacted An Post and that they had provided confirmation of attempted delivery on the dates as outlined. It was accepted by the Complainant that the date of 31 December was outside the statutory time limit and the Complainant confined the assertion to three, rather than four, relevant attempts at delivery that failed. No evidence was furnished by the Complainant and/or her representative from the operators of the Court building to establish whether the building was open or closed on the days in question and, if closed, what facilities, if any, might have been in place for the receipt or non-receipt of post. When this was raised with the Complainant’s representative by the Court, the representative requested an adjournment to allow him an opportunity to obtain this evidence. In circumstances where the party was legally represented; the evidence in question was easily obtained; no reason was given as to why it was not obtained before the hearing and; having regard to the fact that the Complainant had been allowed to make a supplementary submission on the preliminary point, the Court refused the application. The burden of proof in establishing the existence of exceptional circumstances rests with the Appellant in this case. To discharge that burden the Respondent must present clear and cogent evidence to support the contention that exceptional circumstances within the meaning of Section 44(4) of the Act of 2015 existed and that those circumstances acted so as to prevent the applicant from lodging their appeal in time. In the absence of documentary evidence from the operators of the building confirming the closure of the building, the Court is of the view that the Complainant has not met the burden of proof required. The failure on the part of the Complainant and/or her representative to provide any such related information leaves the Court in the position where it is being asked to rely solely on statements by An Post that the office was closed, with no specification as to dates or time, in an email dated April 2021, some sixteen months after the event and the assertions of the Complainant. In the view of the Court, the Complainant has failed to come up to the necessary standard of proof on the facts upon which the assertion of exceptional circumstances rests. The Court therefore cannot find that time should be extended for the making of the within appeal. Determination For the reasons set out above, the Court finds that the within appeal is statute-barred and, therefore, must fail. The decision of the Adjudication Officer is affirmed. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
