FULL RECOMMENDATION
RPA/22/26 ADJ-00036069 CA-00047295-001 | DETERMINATION NO. RPD234 |
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014
PARTIES:VALERO FINANCIAL LIMITED
- AND -
KAJETAN SOLTYS
DIVISION:
Chairman: | Ms O'Donnell | Employer Member: | Ms Doyle | Worker Member: | Mr Bell |
SUBJECT:
1.Appeal Of Adjudication Officer Decision No(s)ADJ-00036069 CA-00047295-001
BACKGROUND:
2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 9 December 2022 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on April 6 2023. The following is the Determination of the Court:
DETERMINATION:
Background
The Complainant lodged his complaint with the WRC on 23rd November 2021 under the Redundancy Payments Act 1967. The Adjudication Officer on the 20thOctober 2022 issued a decision that the complaint was well founded. The Adjudication Officer held that that Complainant was entitled to a redundancy payment based on the following details, commencement date 1 January 2015, end of employment 23 August 2021 and gross weekly pay €429.00. The Complainant appealed the decision on the basis that he had obtained information that showed his employment commenced on 5thAugust 2013. The appeal was submitted outside of the statutory time limit.
This matter comes before the Court by way of a preliminary application by the Complainant relating to the time limit set out in the Workplace Relations Act, 2015 (the Act) at Section 44(3) as regards the making of an appeal against the decision of an Adjudication Officer. The Act at Section 44(2), (3) and (4) provides 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. In the within case the Adjudication Officer made a decision in relation to the complaint of the Complainant under the Act on 20th October 2022. An appeal against that decision, were it to be made within the time limit specified at Section 44(3) of the Act, would require to be made no later than 30th November 2022. The appeal was received by this Court on the 9thDecember 2022.The Complainant seeks to have the Court direct, in accordance with Section 44(4) of the Act that the notice of appeal may be given to it after the expiration of the period specified in Section 44(3) of the Act.
Position of the parties The Complainant contends that exceptional circumstances can be demonstrated in the within appeal and that the Court consequently has the discretion to allow the within appeal to progress. The Complainant set out the relevant circumstances applying as follows. The Complainant tried to submit the additional information he had received in respect of his commencement date to the Adjudication Officer. He only found out on the 29thNovember that the Adjudication officer would not deal with the issue and that he would have to appeal the decision to the Labour Court The Respondent did not attend the hearing.
Discussion and conclusions. It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court. The Court addressed the issue of exceptional circumstances in its decision, albeit in a case under a different statute, 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.
- The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.
The burden of proof in establishing the existence of exceptional circumstances rests with the Complainant in this case. 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 and that those circumstances acted so as to prevent the applicant from lodging his appeal in time.
The Court accepts that the facts of any case are unique to itself and that the application of the law to the within case must be in the context of the circumstances arising in this case In the within case the Complainant accepted in his oral submission to the Court, that he became aware prior to the expiry of the 42 days that he would need to appeal the decision to the Labour Court and that he could have done so. The Complainant offered no explanation as to why his appeal was not lodged until the 9th December 2022, nine days after the expiry of the time limit. The Court cannot except that these circumstances in and of themselves are exceptional to the extent that they prevented him lodging his appeal in time.
Determination The Court determines that the within appeal was not made within the time limit set down in the Act at Section 44(4) and consequently the Court does not have jurisdiction to hear the appeal. The Court so determines.
| Signed on behalf of the Labour Court | | | | Louise O'Donnell | DC | ______________________ | 18 April 2023 | Deputy Chairman |
NOTE
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |