EDA2139

FULL RECOMMENDATION

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

PERKINELMER (IRELAND) LIMITED
(REPRESENTED BY MS. KIWANA ENNIS B.L.
INSTRUCTED BY MASON HAYES AND CURRAN)

- AND -

MR ART CUDEJKO
(REPRESENTED BY CONNECT UNION)

DIVISION :

SUBJECT:

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00021267 CA-00027713-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 October 2020. A Labour Court hearing took place in a virtual Courtroom on 9 July 2021. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Art Cudejko (‘the Complainant’) from a Decision of an Adjudication Officer (ADJ-00021267, dated 19 August 2020) under the Employment Equality Act 1998 (‘the Act’). The Complainant alleges that he was discriminated against, victimised and dismissed for reasons related to his race by the Respondent, Perkinelmer (Ireland) Limited. The Adjudication Officer held that the Complainant’s claims under the Act were not well-founded. The Complainant appealed from that Decision by Notice of Appeal received by the Court on 10 October 2020. The Court sat on 9 July 2021, in a virtual courtroom, to hear the Parties in relation to a number of preliminary issues that arise in connection with the within appeal.

Preliminary Issues

The correct name of the Respondent

The Respondent is named as ‘Perkinelmer’ on the face of the Adjudication Officer’s Decision bearing reference number ADJ-00021267. The Complainant’s Notice of Appeal identifies the Respondent as ‘Wstbourn IT Global Services/PerkiElmer’ (sic). At the within hearing, Mr Beegan of the Connect Trade Union and Ms Ennis BL for the Respondent, both consented to the amendment of the title to these proceedings to identify the Respondent thereto as ‘Perkinelmer (Ireland) Limited’.

Appeal Out of Time

The Adjudication Officer’s Decision under appeal is dated 19 August 2020. Notice of Appeal was not received by the Court until 10 October 2020. The Court was, therefore, notified outside the 42-day statutory time limit by the Complainant of his intention to appeal the Decision. In such circumstances, the Complainant is required to establish that ‘exceptional circumstances’ applied to prevent him filing his appeal within time.

The Complainant offered the following explanation for the delay. He says that he changed address between the date on which his case was heard by the Adjudication Officer and the date that the Decision under appeal issued with the result that the letter from the Workplace Relations Commission containing the Decision was returned unopened to the Commission who then forwarded it care of his Trade Union.

It was received in the offices of the Trade Union on 1 September 2020 and forwarded promptly from there by email to him. At that stage, the Complainant was still within time to file his appeal to the Court but, nevertheless, delayed in doing so until 10 October 2020. When asked by the Court to explain the delay that occurred in the period between receipt by the Complainant of the Decision by email from his Trade Union and the date that the appeal was eventually filed, the Complainant stated that he understood the 42-day period to run from the date he received the Decision.

The Complainant stated that he had notified the Workplace Relations Commission by email on a date following the hearing that the Decision should be sent to his Trade Union as he was unsure where he would be residing subsequently.

The Complainant also told the Court that an official of the Workplace Relations Commission had sent him an email seeking his permission to send the Decision to him by email but that that correspondence had gone into his Spam Folder and he had not, therefore, seen it in time. In response to a question from the Court, the Complainant stated that when he changed his place of residence, subsequent to the date on which his case had been heard by the Adjudication Officer, he had not availed himself of the mail forwarding service offered by An Post.

Ms Ennis BL submits that the Complainant has not established the existence of exceptional circumstances that prevented him notifying the Court of his appeal within the statutory timeframe. She supported her submission by reference to a number of previous Determinations of the Court which establish the test for exceptional circumstances, including the Court’s Determination inRS247 Resources Limited v Newmann UDD172, the facts of which are not dissimilar to those of the within appeal.

Discussion and Decision

On the facts, it is clearly the case that the Complainant had ample time within which to file his appeal following his receipt of the Decision by email from his Trade Union on 1 September 2020. The Complainant mistakenly believed that he had a period of 42 days from that date in which to do so. By his own admission, therefore, the Complainant misinterpreted information contained both in the covering letter from the Workplace Relations Commission dated 19 August 2020 and in the very first line of the Employment Rights Appeal Form he completed.

The covering letter dated 19 August 2020 states as follows: “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.” The Appeal Form states: “Appeals must be given to the Labour Court within 42 days of the date of the Adjudication Officer’s Decision”.

Having carefully considered the Complainant’s written and verbal submissions on the issue of the delay finds that he has not established that there were exceptional circumstances at play that prevented him from filing his appeal within the statutory timeframe for doing so.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Elaine McNeela, Court Secretary.