In general, an appeal to the Labour Court must take place within 42 days from the issuing of the decision of the WRC, unless exceptional circumstances can be proven by the party making the appeal.
Introduction
A recent decision by the Labour Court highlights some of the issues surrounding the timing of making an appeal from the Workplace Relations Commission (WRC).
In general, an appeal must take place within 42 days from the issuing of the decision of the WRC, unless exceptional circumstances can be proven by the party making the appeal.
Time Limit for Appeal to Labour Court
The Workplace Relations Act (the Act of 2015) at Section 44(3) and 44(4) applies to a decision of an Adjudication Officer given in respect of a claim for redress under the Act, and provide as follows
44 (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.
In Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034), the Labour Court considered what would be ‘exceptional circumstances’ to permit an appeal outside of the 42 day limit:
“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 term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”
The burden of proof in establishing the existence of exceptional circumstances rests with the party making the appeal.
Application of Facts
In McNelis Hospitality Bars Ltd and Mr Stephen O’Dowd (CA-00021986-002), McNelis Hospitality Bars Limited, appealed against the decision of the WRC given under a claim made by Stephen O’Dowd, pursuant to the Minimum Notice and Terms of Employment Act, 1973.
McNeils submitted that the appeal had been made after the time period allowed by the Act of 2015 through error and because a bank holiday had fallen in the period of time allowed for the making of an appeal of the decision of the WRC. McNeils submitted that these circumstances amounted to ‘exceptional circumstances’ within the meaning of the Act at Section 44(4) of the Act of 2015.
The Labour Court held that an error of McNeils’s legal adviser did not satisfy the requirement under the Act at Section 44(4), establishing that exceptional circumstances existed in this case such as to have prevented the lodging of the within appeal within 42 days of the date of the decision of the WRC.
Conclusion
The Labour Court therefore could not find that time should be extended for the making of the within appeal. For that reason, the Labour Court found that the within appeal was statute-barred and therefore must fail, affirming the original decision of the WRC.
