EDA2448

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039359 (CA-00050729-006).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 10 July 2023. Labour Court hearings took place on 1 October 2024.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Glenn Pickford against the decision of an Adjudicator Officer (ADJ-00039358 CA-00050729-006) dated 11 May 2023 under the Employment Equality Act, 1988.

The Notice of Appeal was received by the Labour Court on the 10 July 2023, which was outside of the 42-day period for bringing an appeal provided for in s. 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 was held on 1 October 2024.

Application for an Extension of Time

Position of the Appellant

The Applicant submits that the reason for his late appeal to the Court was because he misunderstood emails and got confused about dates. He was preoccupied and under stress at that time, and was more focused on the appeal itself, rather than dates. He submits that the circumstances giving rise to the delay were exceptional to him and personal to him, and on that basis should be regarded as “exceptional circumstances”.

Position of the Respondent

The Respondent submits that no “exceptional circumstances” arise in this case. A mix-up or misunderstanding of the relevant statutory deadline date cannot constitute exceptional circumstances to justify an extension of time. Based on the corpus of case law, misapprehending the correct deadline date is in no way “out of the ordinary course or unusual or special or uncommon” or “highly unusual”. Ignorance of the law cannot be accepted as an excuse for not observing a statutory time limit.

The Appellant’s alleged stress does not constitute “exceptional circumstances” such to prevent an appeal. No evidence was submitted to support a submission that he was medically unfit to justify his failure to submit an appeal for the entire 42-day limitation period.

The length of the delay in lodging an appeal some 61 days after the WRC Decision is noteworthy and requires “more cogent reasons” to explain that delay. No circumstances arose to prevent the Appellant from lodging the notice of appeal to this Court within the 42-day time limit.

The Respondent referred to the following case law in support of its position: Byrne v PJ Quigley Limited [1995] ELR 205; Gaelscoil Thulach na nOg v Joyce Fitzsimons- Markey [2004] ELR 110; McLoughlin v Murray Senior [2022] IEHC 537, Minister for Finance v CPSU and others [2007] 18 ELR 36; Globe Technical Services Limited v Kristin Miller UDD1824; Galway & Roscommon ETB v. Josephine Kenny UDD1624; Irish Pride Fine Foods Unlimited v Brennan TD1815; Kildare & Wicklow Education and Training Board (KWETB) v Teresa Igoe DWT1671; Murphy v Citizens Information Call Centre Limited UD59/2005; Alamazani v Gibbons ADJ-00014160; Cementation Skanska v Carroll DWT0338; Hibernia College v Murray UDD1846; Donnybrook Service Station Limited v Murray UDD217);

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.

Deliberations and Findings

The notice of appeal was received by the Labour Court on 10 July 2023, 61 days after the Adjudication Officer Decision issued. The matter for consideration by the Court is whether “exceptional circumstances” existed during the period for the giving of notice of an appeal that prevented the lodging of that 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 note 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 rests with the Applicant.

To discharge that burden the Applicant 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 that prevented the lodgement of the appeal within time.

The process of making an appeal to the Court involves the completion of a standard form. It is not a complicated process. No evidence was submitted by the Appellant of any effort made by him to lodge the appeal within the 42-day period. As a result, he must explain what “highly unusual” circumstances arose that delayed the lodging of his appeal.

The Court does not accept the Appellant’s contention that because the circumstances giving rise to the delay were exceptional to him, they should be regarded as “exceptional circumstances”.

In the Court’s view that confusion or a mix-up over dates cannot be considered to be a highly unusual occurrence such that it meets the established tests for determining “exceptional circumstances” to justify an extension of the 42-day statutory timeline for lodging an appeal to the Labour Court.

The Court finds that the existence of “exceptional circumstances” has not been established by the Applicant.  The Court concludes that no “exceptional circumstances” applied that prevented the Appellant 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 Applicant. Therefore, the Court finds that the within claim was out of time when it was given to the Labour Court and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

The appeal is rejected, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
11 October 2024	Deputy Chairman

NOTE

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