Time and time again we come across cases where an appeal has not been lodged in time.
A recent case before the WRC again highlights this. In this case (link below) the employee sought to appeal a decision of the Workplace Relations Commission to the Labour Court. The employee was outside the timeframe for lodging the appeal which is 42 days from the date of the decision. The employee cited a number of reasons for the delay including Covid-19 and the Christmas holiday period but ultimately it was found that the employee had not provided an exceptional reason as to why the appeal was not lodged within the time limit.
In reaching its conclusion, the Labour Court looked at the case of Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) whereby it was noted:
“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 Labour Court noted that the employee in this case cited the Christmas period as part of the delay but noted that there was nothing exceptional about this. Separately it noted that whilst the Covid pandemic was an exceptional event, the employee had not put forward any credible reason as to why the pandemic prevented him from submitting his appeal within the required 42 days. The Court also noted that “Ignorance of the law is not an excuse for a failure to comply with its provisions. In any event, the WRC provides information to parties with the Decisions of AOs to advise of the necessity for appeals to be submitted within 42 days”.
An employee should ensure appeals are lodged within 42 days from the date of the decision as it is extremely difficult to prove that exceptional circumstances existed which prevented lodging the appeal within the above timeframe. Advice should be sought at all times.