UDD2422

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044486 (CA-00055087-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 28 September 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 19 June2024.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Mr. Desmond O’ Sullivan (the Complainant) against Adjudication Officer’s Decision ADJ-00044486 CA-00055087-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against Shanside Transport Limited (the Respondent) that he was unfairly dismissed. The Adjudication Officer held that the Complainant was engaged on a contract for service and consequently the Adjudication Officer had no jurisdiction to hear the case.

Background

The Complainant stated that he commenced employment with the Respondent on 31 August 2023 and that his employment ended on 6th September 2022.  The Respondent submitted that the Complainant was a contractor and was never an employee.

The Complainant appealed the decision of the Adjudication Officer to the Labour Court on 28th September 2023. By letter of 29th September 2023, the Complainant was informed that in line with Labour Court rules 2022, he was required to furnish a written submission setting out his case no later than 20th October 2023. By email of 30th November the Court noted that it had not received his submissions that were originally due in on the 20th October 2023 and he was afforded a further week to make his submission. By return the Court received an email stating “hello I need an extension on this matter regards Desmond O’ Sullivan”.

By email of 1st December 2023 the Complainant was asked the basis on which he was seeking an extension and the duration of the extension being sought. The Complainant responded on the 4th December 2023 stating “hello I am seeking the extension for a period of six months as there is a driver who is in the same situation as me and we need to combine the two claims if possible”.

The Court responded on the 5th December 2023 advising that combining two cases together was not possible, as each case must be heard in its own right and on its own merits. The email went on to point out that his submission was now six weeks late. The Court indicated that it was prepared to allow him a final extension of four weeks from 5th December 2023 to send in his submission. The email went on to say that at the end of that period, regardless of whether the submission had been received or not, the Court would move to the next stage in the programming process.

The deadline for receipt of the Complainants submission passed and no submission or communication of any kind was a received from the Complainant. The Court proceeded to schedule the case for hearing on 19th June 2024 in Wexford. In line with normal practice the Court Secretary wrote to both parties on the 20th May 2024 advising of her mobile number, and requesting that on the day of the hearings the parties contact her when they arrived in the lobby of the hotel where the hearing was scheduled to take place. By email of 23rd May 2024 the Complainant responded “hi that is fine I shall call you then. Regards”

By the morning of the hearing neither the Court nor the Respondent had received copies of the Complainant’s submission. The hearing was scheduled to commence at 9.00am and parties are expected to be in attendance fifteen minutes beforehand. The Court Secretary was unable to locate the Complainant in the hotel lobby prior to the commencement time. At 9.00am the Court Secretary received a call from the Complainant to say he had been delayed. He indicated that he was just leaving to head over to the hearing at that point, and that he would be there in twenty-five minutes. No explanation was forthcoming as to why the Complainant had not contacted the Court earlier to inform them, he would be late. The Complainant was informed that the Court would delay the starting of the hearing until 9.30am but that the hearing would proceed at 9.30am. The Respondent was informed that the hearing was being put back until 9.30am and the reason why it was being put back.

At 9.30am the Complainant was not present in the room where the hearing was taking place, could not be located within the hotel and had not made contact with the Court Secretary. The Court opened the hearing at 9.35am.  The Respondent indicated that they were strongly opposed to any further delay or postponement of the case. The Complainant was not present to move his appeal, so the hearing was brought to a close.  At the close of the hearing at 9.40am the Complainant had still not appeared or made contact with the Court Secretary.

In coming to the decision to proceed with the hearing the Court took into account the following,

 1) The fact that it was the Complainant’s appeal, and his failure to send in his submission in advance of the hearing as required by the Labour Court rules.

 2) the failure of the Complainant in advance of 9.00am (the start time for the hearing) on the morning of the hearing to contact the Court secretary and advise that he would be late.

3)  the failure of the Complainant to contact the Court Secretary when he became aware that he would not make the 9.30am start time, and the fact that he had her mobile phone and email contact details.

4) the fact that the Respondent had sent in their submissions within the stated timelines.

5) the fact that the Respondent and their witnesses had been present and available to proceed with the hearing from 8.45am on the day in question.

6)   that the requirement for fairness and equity must apply to both parties.

To this end the Court considered the following obiter comments from Barrett J in David Mc Cormack and Ashford Castle Hotel Ltd [2022] IEHC 188 at paragraph 17.

“Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and /or financial and /or costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

The Court having considered all of the above did not believe that justice would be served by postponing the hearing.

The Court decided to proceed with the hearing as scheduled. The Complainant was not present to move his appeal therefore the appeal falls.

Determination.

The Complainant was not present to move his appeal. The Complainant’s appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.     

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
26 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.