PWD243

SUBJECT:

An Appeal of an Adjudication Officer's Decision No(s) ADJ-000028363 CA-00036390-001

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 April 2023 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 17 January 2024.  

The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Michael McGagh (the Appellant) against the Decision of an Adjudication Officer in a complaint made by him under the Payment of Wages Act, 1991 (the Act) against his former employer, U-Casadh [the nomenclature carried on the face of the decision under appeal] (the Respondent). The Adjudication officer decided that the complaint of the Appellant was well founded.

The date of the Adjudication Officer’s Decision was 10th March 2023. An appeal of that decision, if it were to be made within the time limit for the making of an appeal of 42 days specified at Section 44(3) of the Workplace Relations Act 2015 (the Act of 2015), would require to have been received by the Court no later than 20th April 2023. The worker’s Notice of Appeal was received by the Court on 26th April 2023.

The Appellant made no application to the Court in advance of the hearing to exercise its jurisdiction under Section 44(4) of the Act to extend the time limit available for the making of the within appeal. The Appellant, who was professionally represented throughout, sought to make such an application at the hearing. Noting that the Respondent raised no objection to the Appellant making such an application, the Court decided to hear from the parties in relation to the matter of time limits despite no such application having been made in advance or as part of the written submission of the Appellant.

The Respondent made an application at the hearing to postpone the hearing. The Court, having heard from the parties on the matter, decided to postpone the hearing of the substantive elements of the Appeal but also decided that it would proceed on the day to hear the parties in relation to the matter of time limits as raised by the Respondent in its submission and the application before the Court in that matter from the Appellant.

The Court advised the parties that the matter of statutory time limits applicable would be decided initially; with the Court then proceeding to decide the substantive matter following a hearing only if a decision is made to extend the time limits applicable. In doing so, the Court made clear to both parties that a decision of the Court on this matter had the potential to dispose of the entire matter. Both parties confirmed their agreement to the adoption of this approach by the Court.

Relevant Law in respect of the statutory time limit applicable

The Act of 2015 at Section 44(2) (3) and (4) provides as follows:

44 (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.

Submissions of the parties on the matter of time limits.

The Appellant’s representative submitted that the Appellant’s legal representative had become ill and requiring hospitalisation and surgery on 18th March 2023 and that he was discharged from hospital at the end of March. From that time onwards he worked from home to the best of his ability and did not return to his practice until after 26th April 2023. In mid-April 2023 and before 20th April 2023 he had instructed his secretary to complete the online appeal form and to make the appeal. In the event, the form was received by the Court on 26th April 2023.

It was submitted that the matter was complicated by the fact that the legal adviser had misunderstood the operation of time limits under the Act and assumed, incorrectly, that the permitted period of 42 days excluded weekends from any calculation.

The Appellant’s representative submitted that the surgery of the Appellant’s representative was an exceptional circumstance.

The Respondent submitted that the surgery of the Appellant’s representative could not amount to an exceptional circumstance which prevented the Appellant from making his appeal within the time limits permitted by the Act. The Respondent provided the Court with extensive jurisprudence which established that in order for time to be extended, the Court would have to be satisfied that the contended for circumstances were such as to prevent the making of the appeal in time.

The Appellant’s legal representative clarified to the Court when questioned that he was not a sole practitioner but also asserted that his partner would not normally take on employment law work on behalf of the Appellant’s legal representative.

Conclusion of the Court on the matter of the statutory time limit applicable

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 allowed for the giving of notice and that those exceptional circumstances prevented the giving of a notice of an appeal to the Court by the due date.

This Court addressed the matter in its decision in Gaelscoil 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 reasons advanced by the Appellant for the delay in presenting his appeal were that his legal representative underwent surgery during the period of 42 days and the same legal representative erred in his belief that weekends were excluded from any calculation of time limits.

It is for the Appellant to both explain and justify the delay in lodging his appeal and to set out the exceptional circumstances which would support a decision of the Court to extend the time available for the making of the within appeal.

The Court does not accept that the fact that the surgery and recovery of the Appellant’s legal representative prevented the Appellant from making of the within appeal in time. The Appellant was represented by a Solicitor’s practice with the capacity, as subsequently proven by the fact that the appeal was eventually made by a secretary, to make the appeal at any time during the absence of the individual representative of the Appellant. Indeed, no case has been made that the Appellant’s legal representative was inhibited by illness prior to his admission to hospital on 18th March in making the appeal himself.

Decision

Having regard to the submission advanced on behalf of the Appellant, the Court is of the view that he has not offered a justifiable excuse for the delay in making his appeal within the statutory period allowed for the making of an appeal. The appeal therefore fails, and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
29 January 2024	Chairman