Jersey Unreported Judgments

[2011]JRC072

royal court

(Samedi Division)

1^st April 2011

Before     :

M. C. St. J. Birt, Esq., Bailiff, and Jurats Clapham and Kerley.

 

Mr W. Prior, Director for the Appellant.

Advocate D. Le Maistre for the Respondent.

judgment

the bailiff:

1.        This is an appeal, with leave of the Deputy Bailiff, against a decision of Advocate P Harris, Relief Magistrate, sitting in the Petty Debts Court on 10th November 2010 when he granted judgment against the appellant ("Luxicabs") in the sum of £3,622 plus interest and costs.  This sum had been awarded by the Employment Tribunal on 21st September 2010 when it ruled that the plaintiff had been unfairly dismissed by Luxicabs.

Factual background

2.        In view of the grounds relied upon by Luxicabs, it is necessary to describe very briefly the factual background to the dispute which came before the Employment Tribunal. 

3.        The plaintiff was employed by Luxicabs from 31st March 2008 until 24th November 2009, when she was dismissed for gross misconduct.  The events giving rise to her dismissal occurred on Saturday 21st November 2009.  That evening she was working as the operator in the Luxicabs control room alongside a Miss Gray, who was working as telephonist.  The telephonist takes calls from members of the public ordering taxis and passes messages to the operator who uses a computer software programme to assign the jobs to drivers.  The operator's job is tense and difficult, particularly on a Saturday night, which is the busiest night of the week.  There is no dispute that during the evening the plaintiff became increasingly stressed by failures of the computer system, which is designed to assign jobs automatically to available and appropriate drivers.  Such failures mean that the operator has to repeat processes and sometimes contact drivers by telephone to assign jobs.  In the context of a busy Saturday night, such failures can lead to delay, irate customers and drivers and pressure upon the operator. 

4.        During the course of the evening the plaintiff became unusually tense and anxious and started to panic. She told Miss Gray to stop accepting new bookings but Miss Gray did not and so the pressure increased further.  In due course the plaintiff sent a message through the computer system to all drivers stating "Sorry guys, had enough. Gone home. Thanks for help".  In fact she had not gone home.  She asked Miss Gray to call Mr W Prior, the owner of Luxicabs, to come in to help sort matters out.  Mr Prior said he would come in. 

5.        Before he arrived, another employee, Miss Vicky Leighton came into the control room.  She had been telephoned by Mr Prior following the call from Miss Gray and he had asked her to come in to help in an emergency, which she did in her pyjamas.  However she was told that she need not stay and accordingly left.  At some stage the plaintiff had called her partner, Mr Neale who was a driver for Luxicabs and asked him to come to collect her.  He duly arrived after Miss Leighton had left and before Mr Prior arrived.  According to his evidence, when he arrived, he stood at the door of the control room watching. 

6.        Not long after this Mr Prior, Mrs Prior (his wife) and Mr Michael Beason (his son in law) arrived.  Mr Beason took over the role of operator and the plaintiff, who was clearly distressed and unhappy, left with Mr Neale.

7.        There was a disciplinary hearing which took place on 24th November at which the plaintiff was assisted by a Mrs Pestana, who was assigned by the trade union Unite to represent the plaintiff.  Following the hearing the plaintiff was dismissed for gross misconduct. 

8.        The plaintiff subsequently brought proceedings before the Employment Tribunal for unfair dismissal.  The matter was originally listed to come before a panel consisting of three members, namely the Chairman Advocate Le Quesne and two lay members.  When the hearing started, the Chairman informed the parties that one of the panel members had a close association with Unite, which was providing support for the plaintiff.  Not unnaturally Luxicabs objected to that member forming part of the panel and accordingly the Chairman proceeded to hear the matter alone, as he is entitled to do under the Regulations governing the constitution of the Employment Tribunal.  The key issue before the Tribunal was whether, as Luxicabs contended, the plaintiff had abandoned her post in the period between sending the circular message referred to at paragraph 4 above and the arrival of Mr and Mrs Prior and Mr Beason.  Her case was that she remained at her post until Mr Beason's arrival doing her best, albeit that she accepted that she was very stressed and not performing very well; Luxicabs case was that she simply abandoned her post and was not performing her work when Mr and Mrs Prior and Mr Beason arrived.

9.        The Chairman had to resolve this dispute of fact.  In support of the plaintiff, he heard the oral evidence of the plaintiff and Mr Neale to the effect that she had remained at her seat until the Prior family arrived; in support of Luxicabs, he heard the evidence of Mr and Mrs Prior and Mr Beason to the effect that she had left her post by the time of their arrival.  He commented that it was unfortunate that Luxicabs had not called Miss Gray or Miss Leighton, although it appears that he was in possession of a witness statement from the former, which he concluded he should ignore as hearsay, as the plaintiff did not have the opportunity of cross examining the witness.  He ruled that he was not persuaded on the balance of probabilities that the plaintiff had deserted her post before the arrival of the Prior family or that she was not still at her desk when the Prior family arrived.  In the circumstances, this being the sole gross misconduct relied upon, he held that the plaintiff had been unfairly dismissed.  He also found that the disciplinary process carried out the following Tuesday was unfair.  He accepted the evidence of Mrs Pestana to the effect that Mr Prior had not appeared interested in the plaintiff's answers and had not given her a fair hearing.  He awarded the plaintiff the sum of £3,622 as mentioned previously. 

10.      Following receipt of the award, Luxicabs wrote seeking leave to make an application under Article 77F of the Employment (Jersey) Law 2003 ("the Law") for a reduction of the award on the grounds that the conduct of the employee before dismissal had contributed directly to dismissal and was such that a reduction of the award was just and equitable.  However, the Chairman refused to re-open the matter and declared that the Tribunal's award was final, which indeed was what had been said on the face of the award itself.

11.      Following that decision, Crill Canavan, on behalf of the plaintiff, wrote on 22nd October seeking payment of the award within 7 days, failing which they indicated that proceedings would be issued in the Petty Debts Court without further notice.  Luxicabs did not pay the award and accordingly the plaintiff duly instituted such proceedings. 

12.      The matter came before the Petty Debts Court on 10th November 2010.  We have a transcript of the proceedings. Mr Matthew Prior ("Mr Prior junior"), the son of Mr Prior and also a director of Luxicabs, represented the company. He had also done so before the Employment Tribunal. When the matter was first called on, he indicated that Luxicabs wished to defend the claim.  The matter was then put to the end of the list at which time Advocate Le Maistre, on behalf of the plaintiff, argued that there could be no defence to the claim because it was simply seeking enforcement of an award made by the Employment Tribunal.  Mr Prior junior explained that Luxicabs disagreed strongly with the award of the Tribunal and wished to dispute its finding.  The Relief Magistrate held that it was not possible to do so and that the only remedy available to Luxicabs was to appeal against the Tribunal's decision to the Royal Court.  As he could see no defence to the action, he declined to put the matter on the defended list and gave judgment in the amount of the Tribunal's award. 

13.      It is against that decision that Luxicabs now appeals.

The appellant's submissions

14.      A new matter arose during the course of the hearing and we shall refer to that later.  For the moment we shall summarise the ground of appeal put forward by Luxicabs. 

15.      The foundation of Mr Prior's contentions on behalf of Luxicabs is that the decision of the Tribunal was erroneous and unreasonable and he should have been allowed to re-open the Tribunal's findings before the Petty Debts Court. 

16.      As to his criticisms of the Tribunal, we would summarise these as follows:-

(i)           The Chairman disclosed bias by inviting a member of Unite to sit as a member of the Tribunal when he was aware that the plaintiff's case was being funded by Unite.  In those circumstances this was not cured by the Chairman sitting alone once this problem had been identified.  Indeed, Mr Prior said that he felt pressurised to agree to the Chairman sitting alone as he was told by the Chairman that, if he did not, it might be a considerable time before the case could be heard due to the workload of the Tribunal and it would cause significant inconvenience to the process and all concerned.

(ii)          The Tribunal's conclusion that the plaintiff had not left her work station before the arrival of the Prior family was simply untenable in the light of the evidence produced at the hearing and could not therefore be supported. 

(iii)         Having said that he would take no account of anything contained in a written statement where the witness giving the statement had not subsequently given oral evidence on the basis that such a statement was hearsay, the Chairman displayed bias by ignoring this and specifically relying in his judgment on the written statement of Miss Gray on one aspect where it supported the plaintiff's version of events, but ignoring that statement where it supported Luxicabs' case. 

(iv)          Mr Prior had not been informed in advance that there was no tape recording of the evidence given before the Tribunal.  He only discovered this afterwards.  If he had been made aware of this in the beginning, he would not have agreed for the Chairman to sit alone to hear the case; nor would he have agreed to not representing Luxicabs himself before the Tribunal.  Because he was a witness, he had not been allowed to hear the evidence of other witnesses, but if he had represented the company as well as giving evidence, he would have been aware of all that evidence.

(v)           It was unreasonable of the Chairman to accept the evidence of Mrs Pestana as to what happened at the disciplinary hearing.  Mr Prior submitted that her 'notes' of the meeting were clearly inaccurate.  They were not sufficiently long to have covered such a lengthy  meeting, she referred in the notes to two people who were not even there and she did not refer to the fact that the plaintiff had told lies to Mr Prior's face during the disciplinary hearing.  It was unreasonable of the Tribunal to have placed any weight on Mrs Pestana's evidence. 

(vi)          Luxicabs had been denied a fair trial before the Tribunal as a result of the deficiencies in the process, the apparent bias of the Chairman, and the completely unreasonable nature of the decision reached, which was wholly against the weight of the evidence.

17.      The second limb of Mr Prior's submissions was that, given that Luxicabs had not had a fair trial before the Tribunal, it was entitled to a full hearing on the merits before the Petty Debts Court. We would summarise his arguments in support of that contention as follows:-

(i)        He referred to an extract from Wikipedia to the effect that a party to a proceeding in a court not of record has in most cases a right to demand a trial de novo in a court of record.  Such a trial is not an appeal, as such, but a new proceeding which completely supersedes the result of the prior trial before the court not of record.  The Tribunal was not a court of record - as was shown by the fact that there was no transcript of what took place - and Luxicabs was therefore entitled under this principle to a full trial of the issue of unfair dismissal de novo before the Petty Debts Court. 

(ii)       He had been told that he would be able to appeal to an independent person from the decision of the Tribunal and the person who had told him this was one of the members of the panel of members of the Tribunal (not the panel due to sit in this case).  It was therefore unfair that Luxicabs could not pursue such an appeal before the Petty Debts Court. 

(iii)      It was contrary to the principle described at (i) for the Law to provide in Article 94(1) that an appeal from the Tribunal to the Royal Court lay only on a question of law.  This meant that the Tribunal was in a more privileged position than the Royal Court itself, where appeals lay on both fact and law to the Court of Appeal. 

(iv)      The lack of any transcript of the proceedings before the Tribunal made it almost impossible to formulate any appeal, even one of law.

For all of these reasons, he submitted that the Petty Debts Court had jurisdiction to revisit the merits of the claim for unfair dismissal and the Relief Magistrate should not have found that there was no arguable defence. 

Decision on the appellant's grounds of appeal

18.      Whilst we acknowledge the strength of Mr Prior's feelings that the decision of the Tribunal was wrong or unfair, we are quite satisfied that his submission that the Petty Debts Court is entitled to revisit or review in some way the decision of the Tribunal is untenable.  We would summarise our reasons as follows:-

(i)        It is quite clear that the Law confers exclusive jurisdiction on the Tribunal in respect of claims for unfair dismissal (see Articles 76(1) and 80(1) and para 44 of the judgment in McDonald v Parish of S Helier [2005] JLR 212).   The courts have no jurisdiction to make an award for unfair dismissal. 

(ii)       Article 94 of the Law is very specific and provides that an appeal from a decision of the Tribunal lies to the Royal Court (not the Petty Debts Court) and may only be brought on a point of law.  This means that the fact that a party to proceedings before the Tribunal considers that the Tribunal has erred on the facts does not give rise to an appeal unless the party concerned can contend that the decision of the Tribunal was Wednesbury unreasonable (i.e. a decision so irrational that no reasonable tribunal could have reached that decision), in which event it becomes a matter of law; (see Anchor Trust Company Limited v Jersey Financial Services Commission [2005] JLR 428 at para 12, quoting the Guernsey Court of Appeal in Walters v States Housing Authority 24 GLJ at 46 - 47). We acknowledge Mr Prior's point that this puts the Tribunal in a more privileged position than the ordinary courts (from which appeals lie both on law and fact) but that is what the statute provides. 

(iii)      The opening words of Article 93(1) of the Law provide:-

"A sum payable in pursuance of a decision of the Tribunal shall be recoverable by action before the court ..."

This simply makes explicit what would in any event be implicit, namely that an award of compensation in favour of an employee creates a debt owed by the employer to the employee which can be enforced before the courts like any other debt.

(iv)      The Relief Magistrate was therefore correct to find that the only way of challenging a decision of the Tribunal is by means of an appeal on a point of law under Article 94(1) and that the Petty Debts Court has no jurisdiction to enter into any reconsideration or review of the merits of the Tribunal's decision.  A dispute over unfair dismissal between an employer and an employee has been adjudicated upon by the Tribunal and, unless overturned by the Royal Court on an appeal under Article 94, that adjudication is binding upon both parties.  The Petty Debts Court therefore has no alternative but to grant judgment where a plaintiff has the benefit of an award under the Law by the Tribunal. 

(v)       Thus, even assuming in Luxicabs' favour that all the criticisms made by Mr Prior of the Tribunal are correct - and of course we make no finding in this respect because we have not heard argument on it and Advocate Le Maistre specifically did not deal with the merits of the Tribunal's decision, which he would seek to defend if necessary - such errors would not provide any defence to proceedings issued before the Petty Debts Court to enforce the Tribunal's decision.  As already stated, the only remedy of a party dissatisfied with a decision of the Tribunal is an appeal under Article 94(1) provided that the appeal gives rise to a question of law. 

New point on appeal

19.      The only issue which has caused the Court any difficulty is a point which was raised by the Court itself during the hearing of the appeal.  The full text of Article 93(1) of the Law is as follows:-

"A sum payable in pursuance of a decision of the Tribunal shall be recoverable by action before the court on application made on behalf of the Tribunal." (Emphasis added).

20.      What do the emphasised words mean?  Do they mean that an employee who has the benefit of an award cannot institute proceedings before the Petty Debts Court - or the Royal Court if the amount is sufficient - but that such proceedings must be brought by the Tribunal itself?  When this point was raised, Mr Prior argued that this was indeed the effect of the provision. 

21.      We have reminded ourselves of the principle of interpretation of statutes summarised in Halsbury's Laws of England (4th edition) Vol 44(1) at para 1477:-

"1477.  Nature of presumption against absurdity

It is presumed that Parliament intends that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a construction which produces an absurd result, since this is unlikely to have been intended by Parliament.  Here 'absurd' means contrary to sense and reason; so in this context the term 'absurd' is used to include a result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief. "

That principle is equally applicable as a matter of Jersey law (see for example AG v Corbiere Pavilions Limited (1982) JJ 173; in Re Ostroumoff [1999] JLR 238).

22.      In our judgment, despite the unsatisfactory wording of Article 93(1), an employee is entitled to bring an action in the courts in order to recover a sum payable pursuant to a decision of the Tribunal and we would summarise our reasons as follows:-

(i)        It is clear from a number of provisions in the Law that an award of money by the Tribunal is payable by the employer to the employee.  For example:-

(a)       Article 33(1) (which deals with remedies where an employee has been subject to detriment in contravention of Article 31) provides that the Tribunal may make an award of compensation "... to be paid by the employer to the complainant...".

(b)       Article 54(2) (which deals with un-notified deductions made by an employer from the employee's salary) provides that the Tribunal may "... order the employer to pay to the employee a sum not exceeding the aggregate of the un-notified deductions so made." 

(c)       Article 77E deals with enforcement of a direction for reinstatement or re-engagement.  Article 77E(1) provides that the Tribunal may make an award for compensation "... to be paid by the employer to the complainant..." if the terms of any direction are not fully complied with.

(d)       Most significantly, Article 77E(3) provides that where, following the making of a direction, the complainant is not reinstated or re-engaged, the Tribunal shall make "... an award of compensation for unfair dismissal calculated in accordance with Article 77F ... to be paid by the employer to the complainant."

(e)       Article 78B(3)(a) provides that the Tribunal may order the employer "... to pay compensation to the employee .." where a complaint under that Article is well founded.

(f)        Article 88(3)(c) provides that where in an individual employment dispute, the Tribunal determines that "a sum of money is due to one party from the other", the Tribunal may by its award require that sum of money to be paid.

(ii)       The necessary implication from these provisions is that an award creates a debt on the part of the employer to pay the employee in accordance with the Tribunal's award. 

(iii)      It is true that Article 77(2) (which deals with the remedy for a finding of unfair dismissal) says only that "... the Tribunal shall make an award of compensation calculated in accordance with Article 77F."  Unlike the provisions referred to at (i) above, it does not specifically say that the compensation is payable to the employee.  However, in our judgment, that is undoubtedly its meaning because the whole thrust of the legislation is that an award by the Tribunal is payable by the employer to the complainant.  What would be clear in any event becomes unambiguously so when one considers Article 77E(3)(a) referred to above.  That states specifically that an award of compensation for unfair dismissal calculated in accordance with Article 77F is to be paid by the employer to the complainant. 

(iv)      The invariable result of an amount being owed by one person to another is that the latter can enforce that liability before the courts and is the person who brings the claim.  Thus, in this context, where the employee has the benefit of an award which constitutes the employer his debtor, it would be the employee who can enforce the liability before the courts.

(v)       It would be absurd to expect the Tribunal to be the plaintiff.  We have not been referred to and do not know of any instance where a tribunal which adjudicates upon a dispute is charged with responsibility for suing the losing party to collect the award.  For example, where parties go to arbitration, it is not the arbitrator who enforces the award; it is the successful party that institutes proceedings before the ordinary courts to collect the amount awarded by the arbitrator.  An interpretation which results in the Tribunal having to institute proceedings in the Petty Debts Court would lead to an absurd result within the meaning of para 1477 of Halsbury as set out above.

(vi)      We accept that the wording is unfortunate but it is note worthy that Article 93(2) refers to an award being enforced on application to the court made "on behalf of" the Tribunal rather than "by" the Tribunal.  By contrast in Article 29 of the Law (which enables an officer appointed by the Minister to impose a financial penalty on a person who has failed to comply with an enforcement notice) paragraph (5) provides that a financial penalty under the Article shall be recoverable by action before the Court "by" an officer.  Thus in that case it is clear that it is the officer who is the proper party to bring the proceedings.  There is in our judgment a distinction between "by" and "on behalf of".  If the effect of Article 93(1) is that the Tribunal must be the plaintiff, one would expect it to provide that the application should be made 'by' the Tribunal.  It does not do so.

(vii)     Similarly, in Article 28, which confers power upon an officer, on the written request of an employee, to commence civil proceedings for the recovery of the amount by which the employee has received less than the minimum wage, the provision is very specific in stating clearly and unambiguously that the officer may bring proceedings in the name of or on behalf of the employee at the employee's written request. 

(viii)    In summary, we are satisfied that, although unhappily phrased, the better construction of Article 93(1) is that it does not mean that the Tribunal has to enforce its own awards as plaintiff before the ordinary courts.  Such a result would be absurd and it would require very clear words to lead to such a result.  In our judgment it can properly (if somewhat unnaturally) be said that a plaintiff seeking to recover an award of a Tribunal in the court is doing so "on behalf of" the Tribunal.

23.      Accordingly, we do not find that this additional point raised by the Court assists Luxicabs. It follows that we remain of the view that the Relief Magistrate was correct in finding that there was no arguable defence to the action by the plaintiff and accordingly we dismissed this appeal.

24.      We would add one observation.  In our judgment it is very unsatisfactory that the evidence before the Tribunal is not recorded.  It means that there is no record of the evidence for the purposes of any appeal under Article 94(1).  This seems potentially very prejudicial to a party who may well have an arguable appeal but cannot prove it because there is no record of the evidence.  We urge that provision be made for proceedings to be recorded in future.

Authorities

Employment (Jersey) Law 2003.

McDonald v Parish of S Helier [2005] JLR 212.

Anchor Trust Company Limited v Jersey Financial Services Commission [2005] JLR 428.

Walters v States Housing Authority 24 GLJ at 46 - 47.

Halsbury's Laws of England (4th edition) Vol 44(1).

AG v Corbiere Pavilions Limited (1982) JJ 173.

Re Ostroumoff [1999] JLR 238.