Richard Grogan on employment law: Exceptional Circumstances



Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes below.

In the case of RS247 Resources Limited and Bogdan Newmann, the Labour Court considered the issue of exceptional circumstances.

The Court in this case pointed out that the Court dealt with this matter in the case of Gaelscoil Thulach Na Nog and Joyce Fitzsimons – Markey (EET034) as follows:

“The Court must first consider if the circumstances relied on 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 on 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.”

In this case the Court found that there were 13 days remaining available for the representative of the appellant to submit an appeal on time at the point of notification to them of the decision of the appellant to appeal.

It was argued that the Solicitor for the appellant had to secure alternative Counsel and to brief an alternative Counsel such that the Counsel could prepare the submission necessary to make an appeal. It was pointed out by the Court that there is no requirement to make a legal submission at the point of lodging an appeal.

The terms of the appeal were:

“Please find attached form of appeal with copy of WRC decision attached.

We will furnish written submissions within 21 days. In the meantime we await hearing with acknowledgement.”

The Court held that the documentation submitted by way of appeal demonstrated no characteristics or content which would suggest that the input of counsel was required for its completion.

This case is interesting.

There appears to be - as this office certainly is hearing it from colleagues and those who do not regularly appear before the WRC and the Labour Court - that there is a requirement to put in a submission at the time of lodging an appeal.

There is no requirement to put in a submission at the time of lodging an appeal.

In the case of an Unfair Dismissal case and Equality case there is an obligation to furnish a statement within 21 days and to copy it to the other side.

The Labour Court has consistently accepted very short appeal documentation. In some cases in the past the Labour Court and we have no reason to believe that this would not be the current position have accepted a faxed letter from a Solicitor attaching a copy of a decision and stating that the client of the Solicitor wishes to appeal. The Appeal document to be sent to the Labour Court is a non-statutory form. Therefore any form of communication would be sufficient.

Whether a person is lodging a claim or lodging an appeal it would be always our view that you lodge at the earliest possible date for any claim and lodge an appeal at the earliest possible date. The initial submission can be very short. It can be as simple as “I was unfairly dismissed” in an unfair dismissal case or, in an equality case, “I was discriminated against”.

It is useful to add in that further particulars would be furnished at a later stage but it is not necessary. In employment cases the time limits are very strict. Speed is of the essence. This is clearly demonstrated by this case.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.