FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : JAGUAR LANDROVER IRELAND (REPRESENTED BY DESMOND RYAN B.L. INSTRUCTED BY LEWIS SILKIN SOLICITORS) - AND - MAJA STANISLAWSKA DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No(S)ADJ-00023582 CA-0003204-001 This is an appeal by Ms Maja Stanislawska (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-0023582, dated 19 October 2020) under the Employment Equality Act 1998. The Notice of Appeal was received by the Court on 2 December 2020. The Court sat to hear the appeal in a virtual courtroom on 8 October 2021. Preliminary Issue Counsel for Jaguar Land Rover Ireland (‘the Respondent’) submitted that the Complainant had referred her appeal under the Act outside the statutory 42-day time limit for doing so and that, therefore, the Court should decline jurisdiction to hear the appeal in the absence of the Complainant demonstrating the existence of exceptional circumstances that prevented her referring her appeal within the statutory timeframe. In support of his submission, Counsel referred to the Interpretation Act 2005 and the extensive jurisprudence of this Court on the meaning of ‘exceptional circumstances’. The Complainant told the Court that she was not aware of the 42-day time limit and had failed to notice any reference to that time limit on the Court’s website. The Law Section 83 of the 1998 Act provides that section 44 of the Act of 2015 shall apply to a decision of the Director General of the Workplace Relations Commission under section 79 as it applies to a decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, subject to certain modifications. Sections 44(3) and (4) of the Workplace Relations Act 2015 provide: “(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.” Section 18(h) of the Interpretation Act 2005 deals with the interpretation of periods of time that are set down in legislation, as follows: “(h)Periods of time.Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;” The wording of section 18(h) of the Interpretation Act 2005 is comparable to that of section 11(h) of the Interpretation Act 1937 which section fell to be considered by the High Courtin McGuinness v Armstrong Patents Limited[1980] 1 IR 289. In that case, McMahon J, held that in enacting section 11(h), the Oireachtas had opted for a different approach to that of the “well-settled rule of law in England” whereby “When a period of time prescribed by a statute is defined as a period ‘from’ a particular event … the day of the event is excluded in computing the period.” Later in the judgment, he remarked, “I would gladly adopt any construction of [section 11(h)] which would achieve uniformity in the laws of England and of Ireland in computing periods of time, but I do not see how the provision can be construed in that way.” Section 21 of the Interpretation Act 2005 expressly provides that certain words and phrases defined in the related schedule, whenever they occur in an enactment, are normally construed in accordance with the definition given to them in the 2005 Act. The schedule in question includes a definition of ‘working day’ and ‘week-day’ but not of ‘day’ or ‘days’. It follows, therefore, that the word ‘day’ or ‘days’ when it occurs in an enactment (in the absence of any particular interpretation provided for in the enactment in question) must be given a literal construction as referring to any one of the seven days of the week, unless this were to give rise to an absurdity. (See section 5(1) of the Interpretation Act 2005.) Applying section 18(h) of the Interpretation Act 2005 to the facts, it is apparent that the limitation period specified in section 44(3) of the Workplace Relations Act 2015 expired, in relation to the Complainant’s appeal, on 29 November 2020 – three days prior to the date on which the Complainant actually referred her appeal to the Court. The appeal was therefore referred out of time and, if the substantive appeal is to be allowed to proceed to hearing, the Complainant must first demonstrate to the satisfaction of the Court that there were exceptional circumstances which prevented her giving notice of appeal within time. Exceptional Circumstances This Court, in its determination inJoyce Fitzsimons-Markey v Gaelscoil Thulach na n�g[2004] ELR 110, considered the meaning to be given to the term ‘exceptional circumstances’ and its approach to determining whether such circumstances, when present, can be relied upon by an appellant to extend time: “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 (seeR v Kelly[1999] 2 All E.R. 13 at 20 per Lord Bingham C.J.).” Application to the Facts In the within appeal, the Complainant/Appellant says that she was not alive to the requirement to refer her appeal under the Act within 42 days of the date of the Adjudication Officer’s decision. The Court is aware that a covering letter accompanies all decisions of an Adjudication Officer that issue to the parties to those decisions and that that covering letter expressly states in bold type: “Either party may appeal a Decision of an Adjudication Officer to the Labour Court in writing not later than 42 days from the date of the Decision.” Furthermore, the following is printed at the top of the first page of the actual appeal form submitted by the Complainant/Appellant herein:“Appeals must be presented to the Labour Court within 42 days of the date of the decision”. The Court finds that the explanation offered by the Complainant for her referral of her appeal to the Court outside the 42-day statutory time limit is not credible in the light of the foregoing notifications and, even if taken at its height, cannot be accepted as having prevented the Complainant from referring her appeal within time. The Court finds, therefore, that the within appeal was received outside the 42-day time limit and there are no exceptional circumstances at play that justify extending the time limit in this case. The Court, accordingly, finds that it does not have jurisdiction to determine the substantive element of the Complainant’s appeal. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
