The High Court ruled that Aer Lingus could defend an appeal by five former employees despite missing the deadline to file an appearance, and gave the airline seven days to file one.
Mr Justice Hogan said on 9 September 2013 that the court had power under Order 122, rule 7 of the Rules of the Superior Courts to extend time for an appearance required by Order 12, rule 2A(a). That rule required Aer Lingus to enter an appearance within eight days of service of the originating notice of motion.
The ruling addressed a preliminary issue in the employees’ statutory appeal from a Labour Court decision. The employees argued that Aer Lingus should be barred from raising an objection to the appeal because it had not filed its appearance on time. Aer Lingus contended that the appeal itself was out of time.
The judge did not decide whether the appeal was out of time. He held that the missed appearance deadline did not, by itself, create a jurisdictional bar preventing Aer Lingus from defending the case. He said the court’s power to extend time applied to deadlines in court rules, including one expressed in mandatory language. He also said the ruling did not affect the court’s power to strike out proceedings for persistent or contumelious default, or where delay caused prejudice.
The judge found those concerns did not arise in this case: both sides had sought to join issue on the appeal, and the delays were relatively small and harmless. He extended time on condition that Aer Lingus file its appearance within seven days.
The underlying dispute concerns employee share allocations following Aer Lingus’s privatisation. The former employees had worked for the airline on fixed-term contracts before receiving permanent contracts. They were later excluded from a share ownership scheme because, according to the judgment, they did not have the required year of continuous employment in 2006. They claimed that the failure to allocate shares amounted to discrimination under the Protection of Employees (Fixed Term Work) Act 2003.
The Labour Court dismissed their claim on 4 April 2013 as statute-barred, without deciding whether they were fixed-term employees under the Act. The employees appealed to the High Court under section 15. The High Court’s ruling dealt only with Aer Lingus’s late appearance and did not determine the merits of the employment claim.