FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : LUCEY TRANSPORT LIMITED (REPRESENTED BY WARREN PARKES SOLICITORS) - AND - MR THOMAS FOX (REPRESENTED BY MICHAEL J.BREEN & CO.) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00017650 CA-00022805-002. This is an appeal by Lucey Transport Ltd., ‘the Respondent’, of a Decision by an Adjudication Officer, ‘AO’, that Mr. Thomas Fox, ‘the Complainant’, was entitled to a payment of €928.33 from the Respondent under the terms of the Minimum Notice and Terms of Employment Act 1973. Preliminary Issue The Decision of the AO issued on 4 April 2019. The appeal to the Court was received on 1 July 2019, outside of the 42 days provided for appeals in the Workplace Relations Act 2015. The Respondent sought the agreement of the Court to exercise its discretion to accept that there were ‘exceptional circumstances’ as provided for in s. 44 (4) of the 2015 Act to warrant the delay in the submission of the appeal, so that the Court might accept jurisdiction to hear the appeal. The Complainant did not attend the hearing. A submission on his behalf was received by the Court. The Court invited the Respondent’s representative to read the Respondent’s full submission into the record on the basis that the arguments made in support of the substantive issue would be considered only if the Court determined that it had jurisdiction to consider the appeal. Summary of Respondent’s arguments on the preliminary issue. The Respondent’s registered office address is Minor Row, Millstreet, Co. Cork. The Respondent also has an address at 506/508 Greenogue Business Park, Rathcoole, Co. Dublin. All correspondence from the Workplace Relations Commission, ‘WRC’, regarding the complaint is understood to have been addressed to the Respondent at Greenogue Business Park. The first contact the Respondent had from the Complainant’s representative was dated 20 May 2019, outside of the 42 days allowed for an appeal of the AO’s Decision. Upon receipt of this correspondence, the Respondent’s Financial Controller contacted the WRC on 5 June 2019 to advise that the Respondent had no knowledge of the complaint. The WRC replied on 11 June 2019 that the Respondent had 42 days to submit an appeal to the Court. This period had already lapsed by then. The Respondent never received any communication from the WRC or the Complainant prior to receipt of the letter of 20 May 2019. After several attempts to establish the whereabouts of the registered post item containing the decision of the AO, the Respondent was advised that the Newcastle Post Office had no record of it and that all post for Greenogue was routed through Tallaght. The Respondent frequently receives mis-addressed post for other businesses in Greenogue and examples were provided to the Court. No employee can recall signing for registered post on 5 April 2019, as per the An Post record. It also appears that the signature is by a person called ‘Ralph’. The Respondent has no employee of this name. If the Complainant had submitted the correct address to the WRC with his complaint form, there would be no question that the Respondent would have been put on notice of the complaint. The non receipt of the WRC correspondence, including the AO Decision delivery by registered post, amounts to ‘exceptional circumstances’ within the meaning of s. 44 (4) of the Workplace Relations Act 2015. In the case of Gaelscoil Thulach na nOg v.Joyce Fitzsimons-Markey ETT034 the two steps necessary for the Court to consider were set out as whether the circumstances were exceptional and, if so, whether they operated so as to prevent the lodgement of the claim in time? If the Court accepts the non receipt of the AO Decision as an exceptional circumstance, it must move to assess if this prevented the appeal being lodged within 42 days. A number of other, instructive, cases were provided to the Court. Particular attention is drawn to the case of Yeria Ltd T/A Dun na nOg v Bolanie Adegbite ADJ-0000987 in which, in similar circumstances to this case, the Labour Court held that it was out of the ordinary course for the WRC to communicate with a party other than at its registered address. Summary of Complainant’s arguments on the preliminary issue The WRC Complaint Form was filled in with both relevant addresses provided. The following letters were sent by the WRC to the Respondent. 1. 30 October 2018. Letter to Mr. Padraic Folan, Lucey Transport Ltd., Greenogue Business Park, Rathcoole, Co. Dublin, notifying of the WRC complaint. 2. 23 November 2018. Letter to Mr. Folan at the same address, notifying of hearing date. 3. 27 November 2018. Letter to Mr. Folan at the same address requesting submissions. 4. 18 December 2018. Further letter to Mr. Folan at the same address requesting submissions. 5. 4 April 2019. Registered letter, signed for as received, to Mr. Folan at the same address notifying of the AO Decision. With reference to the case of Gaelscoil Thulach ,(see above), it is necessary that not only must circumstances be exceptional but a party must show that such circumstances must manifest to deny a party the ability to appeal within a statutory period. In the case of Buterlevicuite v Lithuania 42139/08, the ECHR emphasised that there is no general right conferred on litigants to receive court documents in specific form, such as by registered post. In Staffline Recruitment Ltd. v Anna Zawadzka ADJ-00005514 the Labour Court found that a failure to put adequate measures in place following a change of address caused a failure to lodge an appeal in time and that this did not constitute an exceptional circumstance. In Rana v. London Borough of Ealing and Anor. 920180 EWCA Civ. 2074, the UK Court of Appeal stated that claimants were required to demonstrate that the judgment had been mis-sent and to explain the circumstances in which it was eventually received. The Court also noted, by reference to another case, that an appellant, when noting that the time limit had expired, should have acted with ‘extreme diligence’. S. I. 286/77 appears only to require the ‘name and address of the employer…’ to be included for unfair dismissals claims, subject to s. 6 of the Workplace Relations Act 2015. This case is distinguished from the ‘Yeria’ case as the Respondent nominated the business address as the address that governs the relation between the parties. These circumstances were different from those in ‘Yeria’. The Greenogue site is a valid address under s. 6(c)) of the Workplace Relations Act. Even if it is shown that exceptional circumstances exist, the Respondent was notified of the AO Decision on 20 May 2019. The Labour Court deemed the appeal as received on 1 July 2019, 43 days after the Respondent was made aware of the Decision, by their own admission. Therefore, the Respondent’s application must fall on the causative grounds. By failing to appeal for 43 days after becoming aware of the matter, there can be no causal link between alleged exceptional circumstances and the late filing of an appeal. The longer the period that elapses, the greater the explanation needed. There was no address on the Complainant’s P60. The sheer volume of correspondence sent to the Respondent about this matter has to be taken into account. The AO Decision was issued by registered letter and was signed for and while the Respondent relies on the signature being ‘Ralph’ and a claim that nobody of that name is known to them, this could easily be ‘Rachel’. The important matter is that the letter was delivered. The applicable law. Workplace Relations Act 2015. 6. (1) A notice or other document that is required to be served on or given to a person under this Act shall be addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways: (a) by delivering it to the person; (b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address; (c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address; or (d) by electronic means, in a case in which the person has given notice in writing to the person serving or giving the notice or document concerned of his or her consent to the notice or document (or notices or documents of a class to which the notice or document belongs) being served on, or given to, him or her in that manner. (2) For the purpose of this section, a company within the meaning of the Companies Acts or the Companies Act 2014 shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business. 44. (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. Deliberation The issue for the court is whether there were ‘exceptional circumstances’, as per s. 44(4) of the Workplace Relations Act 2015, (see above),that would warrant an extension of the 42 day requirement for appeals, as per s. 44(2) of that Act. The elements of test to be applied by the Court with regard to issues regarding delays were probably best set out by this court in the case of University Hospital Waterford v. McPartlan PDD194, (albeit that, in that case, the Court was dealing with a delay in a complaint being lodged) in which the Court, having quoted from Cementation Skanska v. Carroll DWT0338, stated; ‘It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the Complainant would have presented the complaint in time were it not for the intervention of factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified’. The Court set out in Gaelscoil Thulach na nOg v. Joyce Fitzsimons-Markey ETT034 , quoting Lord Bingham CJ in the case of R v. Kelly (1999)2 All ER 13, that ‘To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regularly or routinely encountered’. The reason identified by the Respondent for the delay in submitting an appeal is that, it is claimed, they were unaware of the proceedings before the WRC, including the outcome, as they were never notified. The Respondent notes that their registered address is Minor Row, Millstreet, Co. Cork and that all relevant correspondence went to an address in Greenogue in Dublin. The Court does not doubt the assurance given by Mr. Kevin Lucey, one of the Respondent’s directors, that the company takes seriously its obligations and that its policy is to treat correspondence from the WRC and this Court with the respect that it warrants. The Court notes also the assurances given regarding the system used for dealing with post at the Greenogue site. However, the Court is, to put it at its mildest, somewhat puzzled as to how five items of correspondence, all addressed to Mr. Padraic Folan, a manager at the Respondent’s Greenogue site, one of which was a registered letter advising of the WRC outcome, (and was signed for to the satisfaction of the person making the delivery), could all have failed to be delivered. That said, the provisions of s. 6(2) of the 2015 Act, see above, might be said to trump any scepticism on the part of the Court on this matter. However, it is not necessary for the Court to consider this, at length, because any failure of the WRC to use the registered address of the Respondent cannot explain why, by their own admission, the Respondent received correspondence from the Complainant’s representative dated 20 May 2019 but failed to appeal to the Court for a full 43 days thereafter , such appeal being received only on 1 July 2019. The Court will not speculate as to what view might have been taken if an appeal had been submitted immediately by the Respondent upon receipt of the correspondence from the Complainant’s representative but it would be fair to surmise that greater weight might be given to claims that correspondence had not been received within the required 42 days if an appeal was received at what might be argued to be the first opportunity to remedy the failure to appeal in time, rather than in circumstances where an appeal was received a full 88 days after the Decision of the AO. An appeal received within the required 42 days does not necessitate any explanation. A delay beyond the 42nd day does. While the Respondent outlined steps taken with An Post regarding post issued to the Greenogue site following receipt of the correspondence from the Complainant’s representative, in this period up to the 88th day after the Decision no appeal was received by the Court. The Court agrees with two points made in the submission received for the Complainant. Firstly, that a longer delay requires even more cogent explanations than a short delay. Secondly, while the tests set out in the ‘Waterford’ case, set out above, are equally valid for application to all instances of failure to meet required deadlines, the test of ‘reasonable cause’ applicable in that case is a less stringent test than the ‘exceptional circumstances’ test required in s. 44(4) of the 2015 Act. To put it at its clearest, it is not apparent what exceptional circumstance prevented an appeal being lodged for as long as it took the Respondent to do so in this case. Therefore, taking all circumstances into account, the Court cannot satisfy itself that there are exceptional circumstances in the instant case that would warrant the Court departing from the intended and clear statutory default position that appeals of Decisions must be received by the Court within 42 days of the Decision. That being so, the Court does not have jurisdiction to hear the appeal and the Decision of the AO remains in place. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
