FULL RECOMMENDATION
PARTIES : PALLAS FOOD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00026747 CA-00033970-002. The Notice of Appeal was received by the Labour Court on the 15 July 2021, which was 108 days outside of the 42-day period for bringing an appeal provided for in section 44(4) of the Workplace Relations Act 2015 (‘the Act’). The Applicant applied for an extension of time for late lodgement of the Labour Court appeal due to exceptional circumstances. A hearing of the Labour Court to hear the preliminary matter in relation to the application for an extension of time was held on 11 February 2022. The Applicant’s representative advised the Court that the Applicant’s original representative at the WRC hearing, a colleague of hers, was unable to attend the Court hearing due to health reasons. She confirmed that she was not seeking an application to postpone the hearing, as she had reviewed the file the previous week and confirmed that she was ready to proceed to represent the Applicant. Application for an Extension of Time The Respondent referred the Court to records from the Companies Registration Office indicating that other legal documents were prepared, considered, and executed by the representative during the period in question. The Respondent submits that even if the representative’s illness was accepted as an explanation for the delay, no reasons have been provided to explain what prevented the lodging of an appeal by the Applicant himself, or by another employee within the representatives’ company, or by instructing another representative to file the appeal form. The Respondent submits that a representative is not required to lodge an appeal to the Labour Court, as the appeal forms are structured to facilitate all potential appellants, whether represented or not. No evidence was submitted to support any contention that the Applicant was prevented from lodging his appeal within 42 days of the WRC decision, or to explain the delay in lodging the appeal for a further 108 days. This application was denied on the basis that she had confirmed to the Court at the outset of the hearing that she was not seeking a postponement of the hearing into the matter, and she had confirmed that she was ready to proceed to act as the Applicant’s representative. Relevant Law Sections 44 (2) (3) and (4) of the Workplace Relations Act 2015 Act provide 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. Discussion The matter for decision by the Court is whether “exceptional circumstances” existed during the period for the giving of notice of an appeal to the Court that prevented the lodging of that appeal by the due date. “The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act. That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another.” The Court went on to state “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 burden of proof in establishing the existence of exceptional circumstances rests with the Applicant. To discharge that burden the Applicant 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 that prevented the lodgement of the appeal within time. In the matter before the Court, the Applicant confirmed that he had instructed his representative to lodge an appeal to the Court on his behalf. It is submitted his representative was ill during the 42-day period for lodging that appeal, and during the subsequent 108-day period before an appeal form was lodged to the Court. No evidence in relation to the Representative’s medical status during the period in question was submitted to the Court to support this contention. The process of making an appeal to the Court involves the completion of a standard form. No evidence was submitted of any effort made to advance the appeal within the 42-day period for bringing an appeal or in the 108 days outside of the 42-day period. It is for the Applicant to both explain the delay in lodging its appeal and to offer a justifiable excuse for the delay. In this case, the Court finds that the existence of exceptional circumstances has not been established by the Applicant. The Court concludes that no exceptional circumstances applied that prevented the Appellant from giving notice of appeal within the time set out in the Act. Determination The Court finds that the existence of exceptional circumstances has not been established by the Applicant to allow the Court direct that a notice under Section 44(2) of the Act may be given to the Applicant after the expiration of the period set out in Section 44(3) of the Act. It follows that the Court has no jurisdiction to hear the substantive appeal. The Court so Determines.
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