UDD2441

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033494 (CA-00044304-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 13th October 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 15th October 2024.

The following is the Decision of the Court:-

DECISION:

This matter comes before the Court as an appeal by Samuel Long (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Unfair Dismissals Act, 1977 (the Act) against his former employer, Flutter Entertainment Plc (the Respondent).

The Appellant was dismissed as a shop manager of the Respondent on 25th November 2020 by reason of gross misconduct.

The decision of the Adjudication Officer issued on 1st September 2023 and the within appeal was presented to the Court on 13th October 2023 which was more than 42 days after the issuance of the decision of the Adjudication Officer.

The Court decided that it would hear the parties in relation to the issue of the applicable time limits for the making of an appeal to the Court and decide that matter before embarking on a hearing of the substantive matters underlying the within appeal. The Court’s decision in this regard was made in the interest of efficiency of process and on the basis that the matter of applicable time limits had the potential to dispose of the matter in its entirety.

Both parties were agreeable to that approach and understood that a hearing of parties on the substantive matters would be required only if the Court decided that the appeal had been made in time.

 Relevant law

Sections 44 (2) (3) and (4) of the Workplace Relations Act 2015 (the Act of 2015) 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 Interpretation Act, 2005 (the Act of 2005) makes provision at Section 18(h) as follows:

(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;

Summary submission of Appellant on the matter of time limits

The Appellant submitted that he had always intended to appeal the decision of the Adjudication officer. He submitted that his appeal was, in fact, made on time. This contention is based on the fact the Act of 2015 requires an appeal to be given to the Court within 42 days of the date of the decision of the Adjudication Officer. The requirement resting upon the Appellant therefore was to initiate the appeal within that time frame which he did. The fact that he was, at the time of initiation of the appeal, in another time zone does not invalidate the date upon which he forwarded / gave the notice to the Court, no more than if, in other circumstances, he had signed legal contract when in that extra-territorial jurisdiction.

The Appellant submitted a reference to Euronav NV v Repsol Trading SA (MT Maria) [2021] EWHC 2565 (Comm) which, he contended, set out general rules for determining times / dates where an agreement is silent as to the applicable time zone. He contended that Henshaw J held that the ordinary and natural approach is to allocate to an event the date that was current in the place where it occurred. In the within appeal the event was his notifying the Court of his appeal, and the date of that event was the date he notified the Court from the place where he sent that notification which was Phoenix, Arizona.

The Appellant submitted a reference on the website of a public organisation. That reference deals with time limits applicable to the commission of an offence and he contended that this website clarified that a time limit does not start until the day after the commission of the offence. He further referred to a case involving Barker and Hambleton District Council where the Court of Appeal accepted that where the word ‘from’ is used, the period begins on the day after the relevant date.

He submitted that the application of these authorities would result in his appeal, made on 13th October, being in time.

Summary submission of Respondent on the matter of time limits

The Respondent submitted that no exceptional circumstances existed which prevented the Appellant from making his appeal in time. It is well established that the burden of proof rests upon the Appellant to establish the existence of exceptional circumstances.

There was nothing exceptional about different time zones and no barriers exist to submitting appeals while abroad. E-mails can still be received and entered on time.

The Respondent asked the Court to consider the decision in Galway and Roscommon ETB v Josephine Kenny [UDD1624] where the Appellant’s representative miscalculated the appeal deadline by one day which resulted in the appeal being made one day out of time. The Court in that matter found that a miscalculation of the deadline date is akin to a misinterpretation of the statutory provisions and was satisfied that the legal principle of ‘ignorantia juris non excusat’ applied. That same principle must apply to the within appeal where the Appellant failed to take into account his time zone, and the impact that might have upon his appeal.

Discussion and conclusion

The notice of appeal was received by the Labour Court on 13th October 2023, 43 days after the Adjudication Officer Decision issued.

The first matter for consideration by the Court, having regard to the Act of 2015 at Section 44, is whether “exceptional circumstances” existed during the period for the giving of notice of an appeal that prevented the lodging of the appeal within the 42-day statutory period.

The meaning of the expression "exceptional circumstances" has been considered extensively by this Court and other fora. In Joyce Fitzsimons-Markey v Gaelscoil Thulach na nOg [2004] ELR 110, the Labour Court held 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.”

In Byrne v PJ Quigley Limited [1995] ELR 205 the Employment Appeals Tribunal held that exceptional circumstances were “strong words” and meant “out of the ordinary, unusual, probably quite unusual but not necessarily highly unusual”. The Tribunal further stated that to extend time it must be satisfied that the exceptional circumstances “prevented” lodging the claim within the statutory time limit, and not merely that the exceptional circumstance caused or triggered the claim.

More recently, in McLoughlin v Murray Senior [2022] IEHC 537 Heslin J considered the term “exceptional circumstances” and noted that:

“70. The view expressed in the EAT's decision in Byrne v. PJ Quigley Ltd is that exceptional circumstances in the present context must be circumstances which are, at the very least, “quite unusual”. In my view, what is required goes somewhat further and I take this view for the following reasons.

71. The Oireachtas chose not to use, for example, the words good reason in s.44 (4). The bar was set higher. Nor did the Oireachtas employ the term special circumstances in that section. In my view, the bar was set higher still, by the use of the term exceptional.

…whereas the EAT used the term “quite unusual” in Byrne v PJ Quigley Ltd, I believe s. 44 (4) requires even more of the circumstances. In other words, exceptional seems to connote something even greater as regards the circumstances being well out of the ordinary – in short, not merely quite unusual, but highly unusual.”

The burden of proof in establishing the existence of exceptional circumstances which prevented the making of an appeal in time rests with the Appellant.

To discharge that burden the Appellant must present clear and cogent evidence to support the contention that “exceptional circumstances” within the meaning of s. 44(4) of the Act of 2015 existed and that those circumstances prevented the lodgement of the appeal within time.

In this case, the decision of the Adjudiation Officer issued on 1st September 2021. The Appellant travelled to another jurisdiction on 2nd October 2010. That location was one in which a time difference with Ireland existed. The Appellant’s travel was necessitated by an illness of a family member. The Respondent does not contest that assertion by the Appellant.

The Appellant ultimately gave his appeal to the Court very shortly after the 12th October 2023.

The process of making an appeal to the Court involves the completion of a simple standard online form. It is not a complicated process. No submission was made by the Appellant that he had made any effort to lodge the within appeal before he left the jurisdiction on 2nd October 2023, albeit he submitted that it was always his intention to make an appeal.

He contends that he believed that at the point he gave his appeal to the Court he was in time. That belief arose because of the time difference between the time at his location and the time in this State.

The Court has noted the family caring circumstances undertaken by the Appellant between 2nd October 2023 and the expiry of the time permitted for the making of the appeal on 12th October 2023. The Court has also noted that the Appellant has not contended that he had difficulty in making the appeal on 13th October 2023 when those family caring circumstances continued to exist. The Court concludes that, self-evidently, the family caring circumstances of the Appellant did not operate to prevent him making the within appeal in time or at all.

No submission has been made that exceptional circumstances existed before 2nd October 2023 at all, and there is no submission before the Court that any such circumstances prevented the Appellant from making the within appeal prior to that date.

Separately, the Appellant has submitted that, because he was in a time zone which is different to the time zone having application to the within appeal, the Court should regard the within appeal as having been given to the Court in time. This contention is made by the Appellant on the basis that his appeal, although given to the Court on 13th October 2023, was initiated online on 12th October 2023 in the time zone from where he initiated his appeal. He further submits that, at the point of receipt by the Court of his appeal, the date at his location was 12th October 2023, albeit it was 13th October in Ireland.

The Court cannot conclude but that the decision of the Adjudication Officer issued on 1st September 2023 in the time zone of the Irish State, and that the statutory time limit of 42 days for the making of an appeal of that decision had application from that date in the Irish State. That time limit of 42 days had expired before the within appeal was given to the Court, and consequently the statutory considerations set out at Section 44 of the Act apply in terms of the application of the statutory time limits to the facts of the appeal.

Additionally, the Appellant also submitted authorities to support his contention that an appeal given to the Court on 13th October 2023 of a decision of an Adjudication Officer made on 1st September 2023 would be in time. The Court, noting the provisions of the Act of 2005 at Section 18(h), cannot apply the interpretation contended for by the Appellant which would, in effect, disapply the interpretation set out in that Act. The Court is satisfied that the application of the interpretation of ‘periods of time’ set out in the Act of 2005 means that an appeal of a decision of an Adjudication Officer made on 1st September 2023 would, if made on 13th October 2023, be out of time.

Finally, the Appellant raised issues as regards the meaning of the word ‘given’ in section 44(3) of the Act of 2015 which provides as follows:

(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.

In the view of the Court, the conclusion of Heslin J in Mc Loughlin and Murray [2022 IEHC 537] is decisive on this point where it was held:

“In light of the wording which the Oireachtas chose to use in s. 44 (3), it seems uncontroversial to say that the focus of the 2015 Act, and the obligation on an appellant, is on ensuring that the appeal is in fact received by the Labour Court (i.e. given to and, thus, received by), as opposed to when the appeal is sent by a would-be appellant, or, for that matter, when attempts are made to give the appeal to the Labour Court.”

The Court concludes that the within appeal was not made in time and that the time limit for the making of the within appeal cannot be extended because the Appellant has failed to establish that exceptional circumstances existed and that those circumstances acted to prevent the appeal from being made on time.

Decision

The Court decides that the existence of “exceptional circumstances” which prevented the making of the within appeal in time has not been established by the Appellant. The within claim was out of time when it was given to the Labour Court and is accordingly statute barred.

The within appeal consequently fails and the decision of the Adjudication Officer is affirmed.

The Court so Decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
29th October 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.