RPD235

1.Appeal Of Adjudication Officer Decision No(S)ADJ-00039270, CA-00050602-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 18 January 2023 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 25 April 2023. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Philip and Patsy Rogers/In a Nutshell (Reg Bus Name No. 550096) against the decision of an Adjudicator Officer (ADJ-00039270) dated 28 November 2022 in relation to a claim made by Mary Dolan (represented by Michael Kelly) under the Redundancy Payments Acts 1967.

A Notice of Appeal was received by the Labour Court on the 18 January 2023 and an amended notice of appeal was received by the Labour Court on 1 February 2023. Both appeals were given to the Court 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 was held on 25 April 2023.

Rule 52 of the Labour Court Rules 2022 provides as follows:The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case. The Court decided to address this issue as a preliminary matter and to make a decision in relation to the matter on the basis that the issue has the potential to dispose of the entire matter.

Application for an Extension of Time

Ms Patsy Rogers, representing the Applicant, accepts that the appeal was lodged to the Court outside the 42-day timeframe set out in the Act. Ms Rogers told the Court that she received correspondence by registered post from the WRC, dated 20 December 2022, but as the business was closed for the holiday period she did not read that letter until the business reopened in and around the 3 or 4 of January 2023. An appeal was submitted to the Labour Court on 18 January 2023.

Ms Rogers told the Court that the late lodgement of the appeal was not deliberate and there was no intention to be disrespectful to the Court or the other party. The delay in submitting the appeal was simply down to the time of year, as it was the Christmas period and there were a number of days during which post was not delivered. After the Christmas period, the Applicant took some time off to spend time with her family. As a result there was a delay in submitting the appeal form to the Court.

The Respondent’s representative, Mr Kelly, said that the Applicant was on notice of the decision of the Adjudication Officer prior to the WRC correspondence dated 20 December. He referred the Court to correspondence from the Applicant which acknowledged receipt of earlier correspondence from the WRC on 8 December 2023. Mr Kelly submitted that the 42-day time limit is clearly set out in legislation. The caselaw setting out what is considered to be exceptional circumstances is clear. Being busy at work or spending time on holidays are not exceptional circumstances.

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.

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.

InJoyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR110the Labour 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 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.”

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 response to questions from the Court the Applicant acknowledged that she received the Adjudicator’s Decision on 8 December 2022. The Court notes that the subsequent correspondence from the WRC to the Applicant dated 20 December 2022 advises as follows:“It is open to you to appeal this decision to the Labour Court within 42 days of the date of the decision, stating your grounds of appeal”.

In the within case the Applicant submitted that the delay in submitting an appeal to the Court was due to the closure of the business over the Christmas period and subsequent holidays with family members. The Court cannot accept that these circumstances fall within the definition of exceptional circumstances.

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.

	Signed on behalf of the Labour Court
	Katie Connolly
CO'R	______________________
4 May, 2023	Deputy Chairman