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Labour Court Rules Appeal is Out of Time

In the recent decisions of Brian Dunne v Christopher Clifford, the Labour Court determined that the appeal by the Respondent of the WRC decisions were out of time and exceptional circumstances did not apply leaving the Respondent personally liable for the awards against him.

Background: Mr Clifford, a former general manager of a restaurant in Sligo brought 8 complaints against the owner of said restaurant personally. Mr Clifford also brought the same complaints against the company which Mr Dunne submits is the employer of Mr Clifford. Mr Clifford brought the eight complaints against two different Respondents because he was unsure as to who his employer was in circumstances where he was hired by Mr Dunne in his individual capacity but 7 weeks into his employment a payslip was issued to him which identified a limited liability company as his employer.

The WRC concluded that as a matter of probability that the contract of employment was formed between the Respondent personally and the Complainant and not with the company that was later identified on the payslip. The claims in the linked cases against the limited liability company were dismissed for want of jurisdiction as the company was not the employer.

Labour Court: The Labour Court noted that the Complainant had taken a number of cases against the Respondent in this case and also took the same cases against a limited liability company that the Respondent in this case is associated with. All the cases were heard on 29th April 2019 by the same Adjudication Officer. It should be noted that the decisions were issued on separate dates, with the decision against the individual Respondent, Mr Dunne, issued on 11th June 2019 but the decision against the limited liability company issuing only 3 days later on 14th June 2019. This caused confusion as the expectation was that both decisions would be issued on the same date.

It was the Respondent’s submission that it was highly unusual for an Adjudication Officer to issue decisions arising from cases heard on the same day on different dates. The Respondent also submitted that no prejudice arose to the Complainant from the late submission of the appeal. The Respondent made reference to the case of Gaelscoil Thulach na nOg v Joyce Fitzimons-Markey (EET034) and submitted that in the circumstances the case met the test set out therein to warrant the Labour Court granting an extension of time to lodge the appeal. The Complainant submitted that there was nothing unusual in the Adjudication Officer issuing decisions on different dates even where the parties are the same.

Decision: The Labour Court concluded that establishing the existence of exceptional circumstances rested with the Respondent to enable the Labour Court to grant an extension of time. It stated that in order to discharge that burden the Respondent must present clear and convincing evidence to support the argument that exceptional circumstances within the meaning of Section 44(4) of the 2015 Act existed and that those circumstances prevented the applicant from lodging his appeal on time.

The Labour Court concluded that the Respondent’s submission that the error of his solicitor in misreading the date of the Adjudication Officer’s decision satisfies the requirement under the 2015 Act was not enough as he failed to show how this prevented the Respondent from lodging its appeal on time. The appeal was therefore found to be out of time. 

Takeaway for the Employers:

Employers should ensure that the correct employer is put on employee’s contract of employment and any changes of employer should be clearly notified to the employee in writing.

It is also vital to note that the WRC can issue decisions for different complaints on different dates despite all complaints being heard on the same date. Extra care should be taken when noting the date of the decision to stay within the 42-day appeal deadline and that the 42 days includes the date of the decision as day 1. The Labour Court will not accept confusion of such dates as an exceptional circumstance to warrant an extension of time. 

Links  https://www.workplacerelations.ie/en/cases/2020/november/dwt206.html

https://www.workplacerelations.ie/en/cases/2020/november/eda2019.html

https://www.workplacerelations.ie/en/cases/2020/november/mwd205.html

https://www.workplacerelations.ie/en/cases/2020/november/pwd2033.html

https://www.workplacerelations.ie/en/cases/2020/november/ted2010.html

Authors – Eva Lindsay and Anne O’Connell

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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