Case Number: TUD1813. Labour Court

• Judgment Date: 01 July 2018
• Year: 2018
• Docket Number: TUD1813
• Court: Labour Court (Ireland)

FULL RECOMMENDATION TU/17/24 DETERMINATIONNO.TUD1813 ADJ-00002798 CA-00003759-002 & 004 ; SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003 ; PARTIES : PAT THE BAKER; (REPRESENTED BY ARTHUR COX); - AND -; CONOR BRENNAN; (REPRESENTED BY CC SOLICITORS); DIVISION : Chairman: Mr Haugh; Employer Member: Ms Connolly; Worker Member: Ms Tanham

SUBJECT:
1. Appeal Of Adjudication Officer Decision No: ADJ-00002798 CA-00003759-002/004.


BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). A Labour Court hearing took place on the 11th January 2018. The following is the Court's Determination

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Conor Brennan (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00002798, dated 5 April 2017) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (‘the Regulations’). The Adjudication Officer decided that the Complainant’s claims against Pat the Baker Unlimited Company (‘the Respondent’) were not well-founded. The Complainant’s Notice of Appeal was received by the Court by email on 17 May 2017. A hard copy Notice of Appeal was received the following day, 18 May 2017. The Court sat to hear the appeal – along with two related appeals TU/17/19 and TU/17/24 – on 24 August 2017 and 11 January 2018.

Preliminary Issue

The Complainant’s Notice of Appeal was received a day outside the statutory time period provided for in section 44(3) of the Workplace Relations Act 2015 (‘the 2015 Act’). The Complainant is seeking, nevertheless, to have the appeal admitted – in accordance with section 44(4) of the 2015 Act – and asserts that his appeal was made outside of time ‘due to the existence of exceptional circumstances’. The Complainant submits that the exceptional circumstances arise from his Solicitor’s miscalculation of the relevant date for the purposes of section 44(3). At the Court’s request, both parties made comprehensive supplementary written submissions addressing the grounds on which the Complainant seeks to extend the time for referring his appeal to the Court.

In her supplementary written submission, Ms Bruton BL for the Complainant submits that the Complainant was blameless in relation to the late referral of his appeal to the Court as the delay was entirely the fault of the Complainant’s Solicitor in circumstances where the Complainant had instructed her to lodge the appeal and was entitled to expect her to have done so within the statutory timeframe for doing so. Ms Bruton BL makes the very novel submission that a refusal by the Court to extend the time for bringing the within appeal would be effectively to make the Complainant vicariously liable for his Solicitor’s actions. In support of her submission, Counsel invited the Court to consider a number of well-known authorities on (a) vicarious liability; and (b) the Superior Courts’ approach to a Solicitor’s failure to initiate proceedings within statutorily prescribed time limits and whether that failure should be attributed to the Solicitor’s client in the context of an application to extend time or to dismiss proceedings for want of prosecution or on the grounds of delay:Deighan v Ireland[1995] 1 ILRM 88;Duignan v RF Fry (Associates) Ltd[1971] IR 176;Allen v Sir Alfred McAlpine & Sons Ltd[1986] 2 QB 229;O’Reilly (A Minor) v CIE[1973] IR 278;Rainsford v Limerick Corporation[1995] 2 ILRM 561; Burke v Minister for Health[2012] IEHC 304; andCS v Minister for Justice[2005] 1 IR 343.

Ms Bruton’s submission comprises a detailed analysis of key passages from the aforementioned judgments from which, she submits, the following principles emerge:

• “At the level of principle - and as a matter of law - a litigant cannot automatically be identified with, and is not automatically vicariously liable for, the acts or omissions of the solicitor instructed by that litigant.

  At the level of principle - and as a matter of law - a failure by a solicitor instructed by a litigant to lodge a claim or to institute proceedings to lodge that claim, or to institute those proceedings, within the time limit prescribed for doing so in circumstances where the litigant bears no personal blameworthiness for the failure can constitute substantial grounds or good and sufficient reason or a justification for extending the time limit.

  In circumstances where the failure of a solicitor to lodge a claim within the prescribed time limit is offered as a basis for an application to extend the time limit, the starting point for analysis is the extent (if any) of the personal blameworthiness of the litigant for the failure to lodge the claim within the prescribed time limit. The starting point for analysis is not that litigant must be identified with the acts or omissions of the solicitor instructed by the litigant and is not that the litigant is vicariously liable for the acts or omissions of the...