The High Court has extended the time for Dunnes Stores to appeal a Labour Court determination in an employment equality case. The order gives the company more time to bring an appeal on a point of law; it does not decide the merits of that appeal or the underlying complaint.
The judgment, delivered by Mr Justice Richard Humphreys on 10 September 2018, concerned an ex parte application under Order 106, rule 5 of the Rules of the Superior Courts. The Labour Court determination was issued on 30 July 2018 and received by Dunnes Stores the following day.
The dispute began with a complaint by Mary Doyle Guidera against Dunnes Stores under the Employment Equality Act 1998. A Workplace Relations Commission adjudication officer upheld the complaint on 18 December 2017. The company appealed to the Labour Court, which issued the determination now at issue.
The judge examined how the appeal provisions in the 1998 and 2015 legislation interact. He concluded that section 83 of the 1998 Act applies section 44 of the Workplace Relations Act 2015 to these cases, but does not apply section 46, which sets a 42-day appeal period for determinations under Part 4 of the 2015 Act. The applicable time limit for an employment equality appeal to the High Court was therefore governed by section 90 of the 1998 Act and Order 106, rather than section 46.
Under Order 106, rule 5, an application to extend the time must be made ex parte within six weeks of the Labour Court determination. The judge accepted Dunnes Stores’ calculation that its application, made on 10 September, remained within that period.
Applying the principles in Éire Continental Trading Co. Ltd. v Clonmel Foods Ltd, as reaffirmed in Goode Concrete v CRH plc, the judge said the company had adequately set out an intention to appeal and arguable grounds. He considered whether its legal advisers’ mistake provided a satisfactory explanation.
Factors supporting an extension included what the judge described as a bona fide mistake, the complexity and inconsistent drafting of the statutory scheme, uncertainty that was not confined to the company’s advisers, receipt of the determination on the last day of term, and prompt action once the difficulty was realised. He noted that the rules committee might consider aligning the time limit with the 42-day period in the 2015 Act.
The court granted the extension sought. The judgment does not state the outcome of any subsequent High Court appeal.