PWD2324

1.Appeal of Adjudication Officer Decision No(s)ADJ-00029917 CA-00040468-002

BACKGROUND:

2.The Worker appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991. A Labour Court hearing in a virtual setting took place on 13 October 2023. The following is the Determination of the Court:





DETERMINATION:

This is an appeal by Mr Daragh Bolton of a decision of an Adjudicator Officer (ADJ-00029917 CA-00040468-002 - dated 2 February 2022) made under the Payment of Wages Act 1991 (“The Act”). The claim was submitted against his former employer Stobart Air UC In Liquidation. The Adjudication Officer found that the complaint was not well founded.

A Notice of Appeal was received by the Labour Court on the 16 March 2022, which was one day 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 to hear the preliminary matter in relation to the application for an extension of time was held on 13 October 2023. The Applicant, Mr Bolton represented himself as a lay litigant. Interpath Advisory, appointed as liquidators to Stobart Air UC In Liquidation, was represented by Siobhan McGowan, Solicitor, of Purdy Solicitors.

Application for an Extension of Time

Mr Bolton submitted that he was unable to submit his appeal in time due to several different factors. He was working as a healthcare worker and had a three-hour commute to work each day. In addition, he had a number of personal family difficulties at that time, the details of which he shared with the Court. As a result of these combined factors, he did not have the necessary time to organise and lodge his appeal in time.

Ms McGowan, Solicitor, expressed sympathy with the circumstances that the Applicant found himself in but submitted that the reasons outlined do not fall within the term “exceptional circumstances”. Busy working lives and personal circumstances as outlined are not sufficient to sustain an application for an extension of time. The appeal process is clear in relation to the timelines set out and the Applicant has demonstrated that he is capable of lodging an appeal at first instance.

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] ELR 110the 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, Mr Bolton said that he made the decision to appeal to the Labour Court immediately on receipt of the Adjudication Officer’s decision but that he went about it the wrong way as he was not familiar with the process required. He believed that he was required to lodge his submission when he lodged the appeal form. He only realised that this was not necessary when he lodged the appeal to the Court on day 43, which was one day late.

It is for the Applicant to both explain the delay in lodging an appeal and to offer a justifiable excuse for the delay. While ignorance on the part of the Applicant about the appeal process may explain a delay in submitting an appeal under the Act the Court is of the view that it cannot excuse that delay. While the Court acknowledges that a lay litigant may be unfamiliar with the law, the information provided to parties when they receive Decisions from the Workplace Relations Commission makes clear that there is a limit of 42 days within which to make an appeal. Furthermore, the process of making an appeal to the Court is a straightforward one which involves the completion of a standard on-line form.

Having regard to the submissions advanced, the Court is of the view that the Applicant has not offered a justifiable excuse for the delay, and as a result, the Court finds that the existence of exceptional circumstances has not been established.

The Court is satisfied that the Complainant has not met the requirement to establish that the circumstances on which he seeks to rely are exceptional, such that the Court should extend the period permitted for submission of his appeal.

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
DC	______________________
16 October 2023	Deputy Chairman