TED249

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044040 (CA-00054528-004.) ]

BACKGROUND:

The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Act 1994 to 2014.  A Labour Court hearing took place on 5 April 2024.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Shane McCaul against a Decision of an Adjudication Officer in a complaint against his former employer Belfry Hospitality Services Ltd t/a Tougher’s Restaurant made under the Terms of Employment (information) Act 1994, as amended (the Act). The Adjudication Officer found that Mr McCaul’s complaint under the Act was not well founded.  This case is linked to another claim relating to the same employer  - DWT2413.

For ease of reading, the parties are referred to in this Determination as they were at first instance. Hence, Mr McCaul is referred to as the Complainant and Belfry Hospitality Services Ltd t/a Tougher’s Restaurant is referred to as the Respondent.

Preliminary Matters

Two preliminary issues were raised with the Court regarding (i) an application to anonymise the decision and (ii) the time limit for lodging the appeal to the Labour Court.

Application to anonymise the decision.

The Complainant made an application to the Court to anonymise the decision of the Court. The Complainant submitted that given the small nature of the industry in which he worked the disclosure of his identity could have adverse implications for his current and future employment.

The Respondent did not oppose the application, however, it submitted that it did not accept the argument that the Complainant would be disenfranchised or suffer a detriment if his identity was revealed in the decision.

Section 44(7) of the Workplace Relations Act 2015 Act provide as follows:

(7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

The Court’s publication of decisions in a manner which names the parties takes place by operation of the Act at Section 44(7). Special circumstances must be circumstances which are special in the sense that they do not generally apply but that they apply in a special way to the applicant in the within appeal. No basis was put forward to suggest that any special circumstances are present in the within appeal. The Court decided that no cogent case had been made by the Complainant which would constitute special circumstances within the meaning of the Act and consequently decided that the decision of the Court in the within appeal will not be anonymised.

Application to extend the time limit for lodging the appeal to the Labour Court

The Complainant applied for an extension of time for late lodgement of the Labour Court appeal.  A Notice of Appeal was received by the Labour Court on the 12 January 2024, which is 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 Court decided to reserve its position on the preliminary matter in relation to time limits and proceeded to hear the substantive appeal. Before doing so, the Court explained to the parties that should it decide in favour of the Complainant’s application to extend time, it would then proceed to consider the alleged breaches under the Terms of Employment (Information) Act 1994, as amended. If it decided not to grant an extension of time, the appeal would be found to be out of time and statute barred.

Position of the Complainant

The Complainant suffered from health issues which worsened after receiving the unexpected decision from the Workplace Relations Commission in December 2023. He was concerned about his current employer becoming aware of his intentions to pursue a case against an ex-employer and being penalised for such actions. The Complainant was certified unfit for work from 2 January to 25 January 2023. During this time, appealing the decision to the Labour Court was not his primary focus. He submitted the appeal on 21 January 2024, which was 85 minutes past the deadline.

The Complainant requested that the Court consider (i) the seriousness of the complaint, (ii) the length of time the parties are in dispute, (iii) the length of time the appeal was past the deadline (85 minutes), (iv) the appellants’ health during the 42-day submission window, (v) the effects the case has had on his life, personally and professionally, and (vi) future repercussions for him.

Position of the Respondent

The Respondent opposed the application to extend the timeframe for considering the lodgment of the appeal to the Labour Court. It submits that the statutory timeline for lodging appeals ensures that legal matters progress in a timely and efficient manner, and that parties are not unduly prejudiced by indefinite delays. The Adjudicator Officer's decision issued on 01 December 2023, thereby triggering a statutory period of 42 days within which an appeal could be lodged. 

The burden of proof rests with the Complainant to demonstrate convincingly that exceptional circumstances arose to prevent him lodging his appeal. He presented no compelling evidence of such exceptional circumstances that prevented the lodging of a timely appeal. Furthermore, the Respondent would be prejudiced if the appeal was allowed, as the the owner of the busines had died since the appeal was lodged and a number of key employees had left the business.

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.

Discussion

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.

In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110 the 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 went on to state:

“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 burden of proof in establishing the existence of exceptional circumstances rests with the Complainant.  To discharge that burden the Complainant 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 the within case the Complainant submits that he was suffering from ill-health at the relevant time and was certified unfit for work in the period from 2 January to 25 January 2024. The Complainant submitted a medical certificate to the Court in support of his position.

The Court must first consider if the circumstances relied upon by the Complainant are exceptional, and if so whether those circumstances operated so as to prevent the Complainant from lodging his appeal in time.

The Court fully accepts that the Complainant was certified unfit to attend work for a period of time during the relevant period for lodging an appeal. However, the fact of being certified unfit to attend work does not necessarily in and of itself constitute exceptional circumstances within the meaning of the 2015 Act. The Complainant told the Court that he returned to work on 25 January 2023. It is accepted that while on sick leave he was sufficiently well to lodge his appeal with the Court, and he did so on 12 January 2023.  No adequate explanation was provided to the Court to explain why he was fit enough to lodge his appeal on that date and not on the day before which fell within the 42-day deadline specified in the Act.

Based on the submissions made, the Court does not accept that the circumstances outlined fall within the definition of exceptional circumstances.

It is for the Complainant 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 Complainant. The Court concludes that no exceptional circumstances applied that prevented the Complainant 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 Complainant to allow the Court direct that a notice under Section 44(2) of the Act may be given to the Complainant 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
TH	______________________
25 April 2024	Deputy Chairman

NOTE

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