RPD226

1.Appeal of Adjudication Officer Decision No(s). ADJ-00030495, CA-0040356-003.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 17 January 2022 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place in a virtual setting on 20 April 2022. The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Martin Corboy (the Appellant) of a decision of an Adjudication Officer in his complaint made under the Redundancy Payments Act, 1967 (the Act) against City Education Group (the Respondent).

The Adjudication Officer did not uphold the complaint.

Background and conduct of the hearing.

The decision of the Adjudication Officer was made on 5^thOctober 2021. The appeal of the Appellant, were it to have been made in time, would, according to the Act of 2015 at Section 44, require to have been made to the Court by 15^thNovember 2021. In the event, the appeal was received by the Court on 17^thJanuary 2022.

The Respondent contended that the appeal was out of time and the Appellant made an application for an extension of time in which to make his appeal in accordance with the jurisdiction conferred on the Court by Section 44(4) of the Workplace Relations Act, 2015 (the Act of 2015).

At the time of the making of the within complaint, according to the Respondent, Section 29 of the Emergency Measures in the Public Interest (Covid 19) Act, 2020 (the Act of 2020) and orders made by the Minister for Enterprise, Trade and Employment consequent on that Act, operated to suspend Section 12 of the Act.

The Court proposed to the parties that it would hear the parties in relation to the matter of time limits and the issue of the Act of 2020 as preliminary matters and, having heard the parties on these matters, would decide whether to continue to hear the matter in its entirety at the hearing. The Court’s decision would be based on efficiency of process having regard to the potential of either or both preliminary matters to dispose of the within appeal in its entirety.

Both parties agreed that the Court should proceed in this manner.

Ultimately the Court, having heard the parties on the preliminary matters, decided that it would decide those matters before hearing the parties on the substantive matter. Both parties agreed to this approach and the hearing adjourned sine die to allow the Court to decide those matters and to communicate its decision to the parties. The Court outlined that its decision on the preliminary matters would either dispose of the appeal in its entirety or a further hearing would be scheduled so as to hear the parties on the substantive matters.

Preliminary matter 1 – the Act of 2020.

The Appellant submitted to the Court that no genuine lay-off or short time had occurred at the material time. He clarified that his complaint arose from an alleged failure by the Respondent to make a redundancy payment to him following his dismissal by reason of redundancy as required by the Act Section 7.

The Respondent submitted that the Appellant was never dismissed by the Respondent and that any complaint could only properly arise in accordance with Section 12 of the Act. The Respondent submitted that the Appellant was on lay-off at all material times. In that circumstance, the Respondent submitted that the Act of 2020 suspended that section of the act and consequently the within appeal could not succeed.

Decision on this preliminary matter

It is for the Appellant to clarify the nature of his complaint. In the within appeal the Appellant made clear to the Court that his complaint related to his alleged entitlement to a redundancy payment by operation of Section 7 of the Act.

The effect of the Act of 2020 was to suspend section 12 of the Act. The Court therefore concludes that no barrier to the within appeal arises from the Act of 2020 and consequent orders.

Preliminary matter 2 – Time Limits

Summary position of the Appellant

The Appellant submitted that exceptional circumstances existed which prevented him from making his appeal on time. Specifically, he submitted that he was hampered by the loss of a laptop on an unspecified date which had all of his WRC documentation and papers on it. He submitted that he was diagnosed with COVID 19 on 13th November2021 which was just before the expiry of the time limit for the making of his appeal.

He was advised on 16^thNovember 2021 that the Respondent had appealed the decision of the Court and, in those circumstances, he did not see the need to appeal the decision of the adjudication officer. In the event he was advised on 5^thJanuary 2022 that the Respondent had withdrawn its appeal and consequently made his appeal two weeks later.

He submitted in addition that he had, in fact, appealed the decision of the Adjudication Officer on 22^ndDecember 2021 but that the Court had stated to him that no such appeal had been received.

Summary position of the Respondent

The Respondent submitted that no exceptional circumstances had been put to the Court which prevented his making of his appeal and consequently no extension of time could be granted under Section 44(4) of the Act.

The making of an appeal to the Court is a very simple matter which does not require legal advice or the making of submissions. That appeal can be made online or by post. The loss of a laptop is not an exceptional occurrence and in any event such a loss could not have acted to prevent the completion of the appeal form provided by the Court. The Appellant had submitted that he was diagnosed with COVID on 13^thNovember and this was not an exceptional circumstance in Ireland at the time. In any event, a diagnosis of COVID 19 on the 13th could not have acted to prevent the making of the appeal at any time prior to that date and since 5^thOctober 2021.

The fact that the employer made an appeal and subsequently withdrew that appeal is not an exceptional occurrence and such an event did not act to prevent the Appellant from making his own appeal.

The Respondent asked the Court to consider its own jurisprudence and in particular asked the Court to consider the decision in Towerbrook Limited Castle Durrow Country House and Laura Strelniece [ADE/19/15] where, in reliance on the decision in Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110, it was held

The burden of proof in establishing the existence of exceptional circumstances rests with the Complainant. To discharge that burden the Complainant 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 exist.

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.

The matter for decision by the Court in this preliminary matter is whether “exceptional circumstances” existed during the period for the giving of notice of an appeal to the Court that prevented the Appellant from lodging his appeal on time. The appeal, were it to have been made on time, would require to have been received by the Court by 15^thNovember 2021. In the event the appeal was not received until 17^thJanuary 2022, some 63 days later.

In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110 this Court gave extensive consideration to the meaning of the expression "exceptional circumstances". In that case the Court stated as follows:

“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 resting upon the Appellant is to establish the existence of the existence of exceptional circumstances and that those circumstances prevented him from lodging his appeal within time.

The Appellant submitted that he had contracted Covid 19 on 13^thNovember 2021 and was, as a result, unable to make his appeal on time. No evidence in relation to the Appellant’s medical status was submitted to the Court to support this contention and no submission has been made that this event impacted upon his capacity to make his appeal at any time between 5^thOctober 2021 and 13^thNovember 2021.

The Appellant submitted that he had been researching various matters relevant to his appeal in the period to 13^thDecember and that he had been preparing his submissions in that period. He submitted that he had lost a laptop on an unspecified date which contained relevant papers and that this event inhibited his ability to make his appeal. The Appellant has not explained how the process of making an appeal relied upon the completion of research, preparation of submission or access to papers other than the appeal form of the Court and the decision of the Adjudication Officer under appeal.

The Labour Court Appeals Form is a relatively simple document. It requires an appellant to give his/her name and contact details, the respondent’s details and details of the first instance decision being appealed against. The process involves the completion of a standard form which is available electronically and which can be submitted electronically. No printing or scanning is necessary. No submission or legal argument or extensive detail is required in order to make an appeal to the Court.

The Appellant asked the Court to regard the fact that the Respondent had made an appeal in time and later withdrew that appeal as an exceptional circumstance. The Respondent contended that these events could not be characterised as unusual or out of the ordinary and that no submission has been made by the Appellant which would establish that they were. The Court notes that the Respondent’s appeal was, according to the Appellant, made on 15^thNovember 2021and notes that no such appeal had been made by the Respondent at any time prior to that date and since 5^thOctober 2021 and consequently that the actions of the Respondent could not have impacted upon or influenced the capacity of the Appellant to make an appeal across that period of time.

The Court is not satisfied that the Appellant has established that any exceptional circumstances existed between 5^thOctober 2021 and 15^thNovember 2021 which prevented or inhibited him in making the within appeal.

Decision on this preliminary matter

In all of the circumstances, the Court, having applied the principles set out in its decision in Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110, concludes that the Appellant has failed to meet the burden of proof resting upon him and concludes consequently that his application for an extension of time must fail.

Decision on the appeal

The Court has decided that the within appeal has been made outside of the time limit set down at Section 44 of the Act of 2015 and that no exceptional circumstances existed which prevented the making of the appeal on time.

Having reached that decision, the Court must decide that the appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
22 April 2022	Chairman