UDD2144

1.An Appeal of an Adjudication Officers Decision No.ADJ- 00021604 - CA-00028402-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place in a virtual setting on 30 April 2021. The following is the Determination of the Court:-

DETERMINATION:

BACKGROUND

This is an appeal by Aztec Entertainment Limited (hereafter “the Respondent”) against an Adjudication Officer’s Decision ADJ-00021604 given under the Unfair Dismissals Acts 1977 to 2015 (the Acts) in a claim that Mr Bernard Robinson (hereafter “the Complainant”) was unfairly dismissed by the Respondent, his former employer. The Adjudication Officer held that the complaint of unfair dismissal was well-founded and awarded compensation of €35,000. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance.

Preliminary issue

This matter comes before the Court by way of a preliminary application by the Respondent relating to the time limit set out in the Workplace Relations Act 2015 (“the Act”) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. The Act at Section 44(2), (3) and (4) provides as follows:

(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.

The Respondent seeks to have the Court direct, in accordance with Section 44(4) of the Act, that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.

Position of the parties

The Respondent contends that exceptional circumstances can be demonstrated in the within appeal and that the Court consequently has the discretion to allow the within appeal to progress.

The Respondent set out the relevant circumstances applying as follows: The 17^{th of}March 2020 was the 42^ndday and a public holiday in Ireland. The appeal submission was sent by registered post on the 16^{th of}March 2020 and received by the Labour Court, on the 18^{th of}March 2020 the day following the public holiday. The Respondent submitted that the case of Dppv John Mc Cabe[2005] IECCA 71 is authority for the proposition that where the final date for making an appeal like in the instant appeal, falls on a day on which the relevant office is not open the final date for making an appeal is the next day.

In that case the Court noted that Order 122 r3 of the Superior Court Rules states that if the timeline for the doing of the ‘act’ expires on a Saturday, Sunday or other day on which the offices are closed then if it is done on the next day on which the offices open that day will be deemed to be the last day. The Court in theMcCabecase followed the judgment of Lord Denning MR inPritam v S Russell & Sons Ltd[1973] 1 All ER 617 who noted that the county court and high court rules had prescribed rules for dealing with time periods that expired on a day the Court was not open and stated “I think we should apply a similar rule when the time is prescribed by statute. By so doing, we make the law consistent in itself, and we avoid confusion to practitioners.”

It is the Respondent’s case that the Labour Court should follow suit and if it does then the appeal will have been lodged in time. The Respondent argued in the alternative that exceptional circumstances existed and were set out by Mr Denieffe solicitor in his email of the 20^thMarch 2020 to the Labour Court where he stated “I am seeking an extension of time under Section 44(4) of the Act in theses exceptional circumstances. I am currently self-isolating at home with symptoms of Covid-19. I am waiting to be tested as is my secretary”The email went on to say “In the ordinary course I would have emailed in the appeal form from the office, but I omitted to do so.

It then noted that “theappeal form went by registered post on 16th March 2020 and would in the ordinary course have been in your offices on March 17^th, 2020”.The Respondent drew the Court’s attention to the Court of Appeal case J.McE and the Institutions Redress Board[2016] IECA 17 and in particular para 38 set out below.

Summingup, therefore, I am of the view that s. 8(2) of the 2002 Act should be given a broad and liberal interpretation as befits a remedial statute of this kind. This means that an applicant seeking an extension of time need only demonstrate the existence of exceptional circumstances simpliciter, with the standard of exceptionality measured by reference to contemporary standards prevailing within the general public, as distinct from the more limited class of persons who might have applied under the 2002 Act.

It is not necessary for the applicant to go further and show that such circumstances impeded or prevented him or her from making an application to the Board within the original three-year period or that such circumstances contributed to a lack of knowledge regarding the existence of either the redress scheme or the Board itself regarding the existence of either the redress scheme or the Board itself.”

It was the Respondents submission that this case was authority for the proposition that the Complainant had only to demonstrate exceptional circumstances and did not have to go the additional step and demonstrate that the exceptional circumstances impeded or prevented him from getting the appeal in o time. The Respondent also relied on a second caseAG v Residential Institutions Redress Board[2012] IEHC 492.

The Respondent suggested that this case is authority for the proposition that because the Oireachtas simply intended to leave the body with the greatest possible flexibility to deal with the wide variety of possible circumstances in which the late application was made solicitor error could be considered an exceptional circumstance.

It is the Complainant’s submission that the appeal was made outside of the statutory time limit. The Respondent has not shown exceptional circumstances and therefore the appeal should fail.

Discussion and conclusions.

The Respondent is seeking in the first instance to rely on the case ofDPP v McCabe. However, the Labour Court rules do not contain the same provision as contained in Order 122 r3 of the Superior Court rules.

The Labour Court rules at rule 1 states “theappeal should 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”.T

he Interpretation Act 2005 at part 2 of the schedule does not define the word “day” but it defines “working day” as “means a day which is not a Saturday, Sunday or public holiday”

It is not disputed that section 44(3) of the WRC Act 2015 refers to “42 days” and not “42 working days”. If the Oireachtas had intended for weekends or public holidays to be excluded from the 42 days, then the term “working day could have been used in the Act but the Oireachtas choose to use the word ‘days. Therefore, the Court concludes that the 42 days must be interpreted as including Saturdays Sundays and Public holidays.

The Respondent submitted in the alternative that the Court should look to the Court of Appeal caseJMcE and the Institutions Redress Boardor the case ofAG v Residential Institutions Redress Boardin terms of defining exceptional circumstances.

The Court notes that Residential Institutions Redress Board Act 2002 at section 8 (2) states that “The Board may, at its discretion and where it considers there are exceptional circumstances, extend the period referred to in subsection (1)”. This differs from the Workplace Relations Act which at section 44(4) states “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.”

It appears to the Court that the test under the Workplace Relations Act 2015 is a two-pronged test whereas the test under the Residential Institutions Redress Board 2002 is a single pronged test of exceptional circumstances. The Court drew the Respondent’s attention to the test for exceptional circumstances set out by this Court inGaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034)as follows

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.

The burden of proof in establishing the existence of exceptional circumstances rests with the Respondent 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 his appeal in time.

The Court accepts that the facts of any case are unique to itself and that the application of the law to the within case must be in the context of the circumstances arising in this case

In the within case the Respondent contends that the fact that the 42^ndday was a public holiday, and the appeal was received on the next day the Court was open the appeal was in fact in time. For the reasons set out above the Court does not accept that contention is correct. The Respondent submits that by sending it by registered post it would have been delivered the next day had the Court been opened. The Court does not accept that that is necessarily true as An Post, does not guarantee next day delivery for registered post. In fact, on its website its states 1-2 days for delivery.

The Solicitor in this appealconfirmed that he could have sent it by email before he left the office but in error he omitted to do so. The Court has indicated above that it believes the test set out in GaelscoilThulach na nOgis the correct test to apply.

Applying that test to the facts of this case the Court does not except that exceptional circumstances existed. Even if the Court was to accept that exceptional circumstances existed the Court finds that the Respondent has failed to show how this prevented the Respondent from lodging its appeal in time.

In all of these circumstances the Court finds that the Complainant has not established that exceptional circumstances arose in this case such as to be regarded as being of such a nature as to prevent the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer.

Determination

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

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
09 June 2021	Deputy Chairman