MND2214

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00028709, CA-00038749-005.


BACKGROUND:

2.This is an appeal under the Minimum Notice and Terms of Employment Act,1973. Mr. Scales, ‘the Complainant’ made complaints to the Workplace Relations Commission, ‘WRC’, against his former employer Euro Parks Ireland Ltd., ‘the Respondent’ under the Unfair Dismissals Act 1977, the Employment Equality Acts 1998-2015, the Redundancy Payments Act 1967, the Minimum Notice and Terms of Employment Act 1973 and the Protection of Employees’ Temporary Agency Work) Act 2012, ‘the Acts’. An Adjudication Officer, ’AO’, decided that the complaints were not well founded.

The Complainant appealed to this Court.




DETERMINATION:

Preliminary Issue.

S.44 of the Workplace Relations Act 2015 reads as follows;

(3) Subject tosubsection (4), a notice undersubsection (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 undersubsection (2)may be given to it after the expiration of the period specified insubsection (3)if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

The AO Decision is dated 13 December 2021. The appeal was received by the Court on 28 January 2022, outside of the 42 day period.

The parties were advised in advance that the Court would deal with the question, as a preliminary matter, of whether there were ‘exceptional circumstances’ to warrant the exercise of its authority to extend the period for receipt of the appeal.

Because the Complainant represented himself at the hearing and because there had been some initial administrative confusion regarding the date on which his appeal had been received by the Court, reassurance was sought by the Court that he understood that the Court was dealing solely with this preliminary matter and that he had understood this in advance of the hearing commencing. The Complainant confirmed that he had received the Court’s communication in advance and that he understood.

Summary of Complainant arguments on the preliminary matter.

The Complainant said that Christmas had intervened between the AO Decision and his appeal. He said that Covid restrictions limited him and that he had not understood the time limits that applied.

The Court asked him if he had any further points that he wished to make, to which the Complainant replied by stating that he had a disability. In response to a question from the Court, the Complainant stated that his disability was physical and that he was unable to travel around at the relevant time because of Covid restrictions, particularly due to his disability.

Summary of Respondent arguments on the preliminary matter.

Christmas is not an exceptional event and there is nothing to prevent appeals being submitted during the Christmas period.

The Complainant was able to lodge his original complaint during the Covid pandemic and he lodged his appeal while the pandemic was ongoing but he did so after the 42 day period. Nothing changed between that period and the subsequent period that could have affected the ability of the Complainant to lodge his appeal.

The WRC cover letter with the AO Decision sets out clearly that appeals, if being pursued, should be lodged with the Court within 42 days.

Deliberation

The Court addressed the question of the application of its authority to extend the period for the submission of appeals 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.

As the Respondent notes, there is nothing exceptional about Christmas. It occurs every year. Further, there is nothing to prevent the submission of appeals during the Christmas period.

Obviously, the Covid pandemic is an exceptional event but the Complainant has not put forward any credible reason as to why the pandemic prevented him from submitting his appeal within the required 42 days. He confirmed that he had not suffered from the virus in that period. The pandemic continued after the 42 day period and no evidence was offered that the situation had altered, yet the Complainant was able to submit his appeal a few days outside of the required period.

Ignorance of the law is not an excuse for a failure to comply with its provisions. In any event, the WRC provides information to parties with the Decisions of AOs to advise of the necessity for appeals to be submitted within 42 days.

Taking all of these factors into account, the Court is satisfied that the Complainant has not met the requirement to establish that the circumstances on which he seeks to rely are exceptional, such that the Court should extend the period permitted for submission of his appeal.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
IK	______________________
5 December 2022	Deputy Chairman