FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: AN GARDA SIOCHANA AND ALICJA STADNICKA- SZYMUS DIVISION:
SUBJECT: Appeal of Adjudication Officer Decision No's: ADJ-00034776 (CA-00045795-001) DECISION: This matter comes before the Court by way of a preliminary application by Ms Alicia Stadnicka-Szymus (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 Payment of Wages Act 1991, against her employer An Garda Siochana (the Respondent), on the 13th June 2023. The Adjudication Officer held that the complaint was not well founded. An appeal against that Decision, were it to be made within the time limit specified at Section 44(3) of the Act, would require it to be made no later than 24th July 2023. The appeal was received by this Court on the 26th July 2023. 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. This case is linked to PW/23/82. Position of the parties The Complainant contended 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 stated that she understood she had 42 days to send in the appeal, but she thought that the 42 days started the day after the date on the Adjudication Officers decision. It was her belief that she had until the 25th July 2023 to send in her appeal and that was the day she posted it. The delay in sending in the appeal was the fact that it was the summer holidays, and she was waiting for documents. The Respondent contends that no exceptional circumstances applied which prevented the Complainant from giving notice to the Court of the appeal within the time limits allowed under the Act. They referenced the case of Joyce Fitzsimons- Markey v Gaelscoil Thulach na nOg [2004] ELR 110 where it was held that the exceptional circumstances cannot refer to something that is regular or routinely or normally encountered. Discussion. 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, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey 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. 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 to prevent the Complainant from lodging their 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 submits that she thought the appeal was due in on the 25th July 2023. However, in her submission she confirmed that she did not post the appeal until that day, so even if she had been right that the 25th July was the 42nd day her appeal was still out of time as it was not received until 26th July 2023. When the Complainant posted her appeal on the 25th July 2023 she would have been aware that it could not arrive within the 42 days’ time limit. The Complainant also stated that she was waiting on documents and that it was the summer holidays. Nothing in the Complainant’s submission suggest the existence of exceptional circumstances that prevented her from lodging her appeal in time. Therefore, the Court finds that the Complainant has not established that exceptional circumstances arose in this case such as to be regarded as being of such a nature as to prevent the lodging of the within appeal within 42 days of the date of the Decision of the Adjudication Officer. Decision The Court determines that the within appeal was made outside of the time limit set down in the Act at Section 44(3) and consequently, the Court does not have jurisdiction to hear the appeal. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary. |
