TED2315

1.Appeal of Adjudication Officer Decision No(s) ADJ-00034984 CA-00045862-001.

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 13 June 2023 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on 25 October 2023. The following is the Decision of the Court.

DETERMINATION:

Background to the Appeal

This is an appeal by Tomas Olesky and Lucia Billagomez T/A El Grito Mexican Taqueria (‘the Respondents’) from a decision of an Adjudication Officer (ADJ-00034984/CA-00045862-001, dated 28 March 2023) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Adjudication Officer awarded Ms Paola Alba Dalivar (‘the Complainant’) €820.00 for the Respondents’ breach of section 3 of the Act.

The Respondents’ Notice of Appeal was received in the Court on 13 June 2023 i.e. some five weeks outside the statutory time limit that applies to appeals from a decision of an Adjudication Officer under the Act. The Court heard the appeal in Dublin on 25 October 2023 in conjunction with seven related appeals under the Organisation of Working Time Act 1997 (WTC/23/54; WTC/23/55; WTC/23/56; WTC/23/57; WTC/23/58; WTC/23/59 and WTC/23/60).

Preliminary Issue

Counsel for the Respondents made an application at the commencement of the hearing for an extension of time to bring the within appeal. In doing so, Counsel submitted that the Respondents were not on notice of the date of the first instance hearing and, therefore, did not attend the hearing before the Adjudication Officer. Counsel accepted that the Respondents received a copy of the Adjudication Officer's decision dated 28 March 2023 but submitted that the decision came as “a shock” to them. He also told the Court that it would appear that the various awards made by the Adjudication Officer to the Complainant, when considered in the round, resulted in the Complainant being awarded double recovery in respect of a number of alleged breaches of legislation on the part of the Respondents.

Counsel cited a number of judgments of the Superior Courts in support of his application none of which appear to the Court to offer it any particular guidance when undertaking its statutory task of interpreting section 44 of the Workplace Relations Act 2015 (see below) and applying that provision to the facts of the within appeal. Counsel relies, in particular, on thejudgment in Continental Trading Company v Clonmel Foods[1955] IR 170.

The Law

Subsections (2) to (4) of Section 44 of the Workplace Relations Act 2015 provide:

• “(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 meaning to be given to the words ‘exceptional circumstances’ was considered by this Court when construing identical words in the Employment Equality Act 1998 (prior to its amendment in 2004) inFitzsimons-Markey v Gaelscoil Thulach na nÓg[2004] E.L.R. 110). The Court, in its Determination in that case, said that 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 Court inFitzsimons-Markeyoutlined the correct approach that should be taken to determine, whether in any particular case, the circumstances relied on by an appellant to extend time constitute ‘exceptional circumstances’:

• “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 (seeR v Kelly[1999] 2 All ER 13 at 20 per Lord Bingham CJ.)”

Discussion and Decision

Having considered the Respondents’ submission in support of their application to extend time to refer the within appeal, the Court finds that neither of the circumstances cited by Counsel for the Respondents (i.e. ‘the shock’ they experienced upon learning of the Adjudication Officer’s decision and their concern that the Complainant may have benefitted from a ‘double recovery’ on the same facts) constitutes “exceptional circumstances” within the meaning of section 44(4) of the Act of 2015. That being the case, the Court sees no basis to extend time and the appeal fails accordingly.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
31 October 2023	Deputy Chairman