Richard Grogan: Appeals to the Labour Court
Employment law solicitor Richard Grogan considers Fixed Term Work Act contracts and their interaction with the Unfair Dismissal Acts 1977-2015 and the Maternity Protection Act 1994.
There are very strict time limits in the Workplace Relations Act 2015. Under section 44(3), an appeal to the Labour Court of a decision of an adjudication officer must be submitted within 42 days. That 42 days runs from the date of the decision. Under section 44(4), the Labour Court may grant an extension of time for an appeal if it is satisfied there were exceptional circumstances. This issue then arose in the case of Donnybrook Service Station Limited and Morgan Murray UDD217.
The court set out its view with clarity on the question of what is an exceptional circumstance in the case of Joyce Fitzsimons Markey - v- Gaelscoil Thulach na nÓg EED034. The court pointed out the most relevant extract from that determination in respect of the issue before the court was the following:
“The term exceptional is an ordinary familiar English adjective and not a term of art. It described 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 needs not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered”
The court held that the complainant’s argument did not come anywhere near meeting this requirement. The court pointed out that, unfortunately, stress as a result from dismissal is to be expected. The court said that this does not provide an argument that could be deemed to justify or explain as an exceptional circumstance the decision of the complainant not to open the decision from the adjudication officer until after the 42-day appeal period expired.
The court pointed out that legal advice is not required to submit an appeal. The court pointed out that while it is acknowledged that a lay litigant may be unfamiliar with the law, the information provided to parties when they receive decisions from the Workplace Relations Commission make clear to them, in a fashion that requires no legal training, that there is a limit of 42 days within which to appeal, and even provides guidance on what such an appeal must cover.
The court pointed out that the appeal forms provided by the court are deliberately structured to facilitate all potential appellants, whether or not they are legally represented.
The court pointed out that, in any event, if a potential appellant decides that they need advice before submitting an appeal, the period of 42 days allowed for such an appeal is ample time. The court did not allow the appeal.
This is a helpful decision of the court in setting out matters. It is very important that an employee who believes that they are going to need legal advice gets that legal advice as soon as possible. It is not a matter of phoning up a solicitor on the 40th day. It is a matter of making sure that, if you have not already been advised by a solicitor, that you get advice as soon as possible after the decision if you wish to appeal. That enables the solicitor to properly set out the appeal documentation and to make sure that it gets in on time.
Even if a person cannot get to a solicitor and there is only a short period of time left, the guidance notes which come out with any decision, from the Workplace Relations, are very clear.
The issue of stress caused by a dismissal is well known. It is recognised. It is legitimate. It does arise. However, the courts have held that such stress is normal stress and does not give rise to a claim for a personal injury, and parties going into a process such as an unfair dismissal need to understand that the process can be stressful. That is the reason why it is imperative and important that individuals consider getting legal advice at as early a stage as possible and preferably before, and we mean well before, any claim goes on for hearing in the WRC.
Lay litigants are getting involved in litigation. The law relating to unfair dismissals is complex. In any claim before the Workplace Relations Commission or the Labour Court, it is very important that an employee’s claim is set out properly and, for that reason, employees do require legal advice. The same, of course, applies to employers. Trying to run a case yourself, particularly if the other side is represented, is not a good idea and it is always better to have appropriate legal advice available.