DWT2238

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00024895 CA-00031580-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 5 August 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 8 September 2022. The following is the Determination of the Court.




DETERMINATION:

This case comes before the Court as an appeal of an Adjudication Officer’s Decision by WS Earthworks, ‘the Respondent’, under the Organisation of Working Time Act 1997, that awarded compensation of €2824.12 to Mr. Andrew, ‘the Complainant’, for breaches of the Complainant’s rights under the Act.

The Appeal.

Prior to the hearing of this Court, the Respondent had sought an adjournment on the grounds that one of the witnesses was unable to attend for medical reasons. The medical report suggested that this witness would most likely be unable to attend for about one year. This request was declined and the Respondent’s representative was advised that the hearing would proceed and that further application could be made for an adjournment at the hearing.

The Respondent’s representative, Mr. Bolger, attended the hearing alone and requested an adjournment of proceedings. No representative from the Respondent company attended. In addition to the witness who had been the subject of the application for an adjournment, the Respondent had advised the Court in advance of two further witnesses. Neither was in attendance and Mr. Bolger told the Court that they had informed him that they would not be attending on the day.

The Court facilitated Mr. Bolger with time to speak to his client. He informed the Court that he was unable to make any such contact.

Ms. Fahey for the Complainant applied to the Court for the appeal to be struck out on the grounds that the Respondent company, a party to the proceedings, had no representative present and that Mr. Bolger was, therefore, not in a position to accept instructions. She drew the Court’s attention to the fact that the two witnesses who failed to show up had also failed to attend at adjudication and that there had been a pattern of requested delays on different medical grounds from the Respondent in the course of the various proceedings.

Mr. Bolger in requesting an adjournment undertook to seek to have a medical specialist attend adjourned proceedings to give evidence regarding his witness or, alternatively, he undertook to speak to his client regarding the possibility of discontinuing with the appeal.

Consideration by the Court.

While the Respondent’s representative was present, no representative of his client, the Respondent, was present to give him instruction. Therefore, the Respondent, as the appellant party, was not in a position to make an appeal to the Court, notwithstanding the Representative’s offer to seek to do so. This situation was compounded by the absence of witnesses that had been listed for the Court, though that need not be a decisive consideration.

The Court has to be mindful, in considering requests for adjournments, that there is always another party to proceedings. As Humphreys J. noted in ‘Smith v Considine and KBC Bank Ireland plc, ‘..a party does not have an indefeasible right to an indefinite or repeated adjournment.’

In this case, a party to the proceedings failed to attend their own appeal. As a result, there is not a proper appeal before the Court. In such circumstances, it is arguable if the Court can even consider a request from that party’s representative for an adjournment.

The failure to attend means that the Court does not have a valid appeal before it for consideration.

Determination

The Decision of the Adjudication Officer is affirmed.

	Signed on behalf of the Labour Court
	Tom Geraghty
IK	______________________
28 September 2022	Deputy Chairman