Jersey Unreported Judgments

Employment - application for leave to appeal against a decision of the Employment and Discrimination Tribunal.

[2019]JRC164

Royal Court

(Samedi)

22 August 2019

Before     :

Sir William Bailhache., Bailiff, sitting alone.

 

Applicant appeared on his own behalf.

judgment

the bailiff:

1.        This is my decision on the papers in relation to an application for leave to appeal against a decision of the Employment and Discrimination Tribunal on 7^th March, 2019, in relation to a hearing which took place on 5^th February, 2019, when the Applicant claimed for both untaken time off in lieu of overtime and unpaid wages for a period when he refused to work because of the lack of extractor fans in the kitchen.  Both claims were refused by the Chairman of the Tribunal, and the Deputy Chairman refused permission to appeal in a reasoned decision dated 10^th July, 2019. 

2.        Appeals from decisions of the Employment and Discrimination Tribunal ("the Tribunal") are governed by Article 94 of the Employment (Jersey) Law 2003.  A right of appeal to the Royal Court lies on a question of law only, and leave to appeal is first sought from the Tribunal.  Where the Tribunal refuses leave to appeal, the person aggrieved may apply to the Royal Court for leave to appeal. 

3.        I am therefore required to consider whether the grounds of appeal and accompanying letter which the Applicant has put before me provide a reasonable basis for concluding that a point of law arises and that permission to appeal should be granted.  I have not found it necessary to hold an oral hearing in order to determine this question. 

4.        Leave to appeal is refused.  It should only be granted where it is clear that a point of law has arisen which would lead to the original decision of the Tribunal being set aside.  The Deputy Chairman, Advocate Jones referred to a question of law as being characterised in this way:-

(i)        The Tribunal has misdirected itself in law or misunderstood the law or misapplied the law; and/or

(ii)       There was no evidence to support a particular conclusion of finding of fact; and/or

(iii)      The decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached or alternatively was one which was obviously wrong.

5.        I consider that that test is appropriate for the purposes of the present appeal although I add that there may be cases where a further ground of appeal might be based upon an incorrect procedure adopted in the Tribunal. 

6.        The Chairman of the Tribunal's judgment sets out the following facts.

7.        The Applicant was employed as a chef by the Respondent between May 2016 and 15^th July, 2018 when he resigned, having given notice to terminate.  The Tribunal indicated in its judgment of 7^th March that there was no suggestion by the Applicant that he had resigned in response to any repudiatory act by the Respondent, but rather he resigned to take up employment elsewhere. 

8.        The contract of employment ("the Contract") provided that the Applicant should work basic hours of 45 hours per week from Monday to Saturday.  He was paid £490 per week plus £50 for tips.  He was not entitled to overtime payments but there was an overtime provision in these terms:-

"Normal hours of work/overtime conditions (if any)

45 hours over Monday to Saturday.  There is no paid overtime in your role.  Any time worked in excess of your normal hours of work will be given as time off in lieu."

9.        When the Applicant resigned, he had an amount of time worked in excess of his normal hours of work in respect of which, had he still been working, he would have been able to claim time off in lieu.  The questions which arise were rightly identified by the Chairman of the Tribunal as these:-

(i)        What were the Applicant's contractual hours? 

(ii)       Did the Applicant habitually work in excess of his contractual hours? 

(iii)      If he did habitually work in excess of his contractual hours, did the Applicant take time off in lieu of those excess hours? 

(iv)      If not, was the Applicant's failure to take time off in lieu due to the Respondent's refusal to agree to his requests? 

(v)       Was the Respondent required to pay the Applicant in lieu of untaken time off in lieu upon the termination of the Applicant's employment? 

10.      The Tribunal had before it a number of witness statements and documentary papers.  It also heard evidence orally from three witnesses.  The Tribunal in its judgment makes plain that it heard both parties by way of oral submissions and considered all of the evidence.  The Chairman said this:-

"I only summarise in this judgment the facts and evidence which are relevant to the issues.  Where I have had to resolve factual disputes, I have done so on the balance of probabilities on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence."

11.      The Tribunal's judgment sets out the evidence and the findings of fact at paragraph 33 of its judgment:-

"Having considered all the evidence, I made the following findings of fact:-

(a)       During the course of his employment, the claimant rarely took TOIL and he generally worked a 49 hour week.

(b)       (The Respondent) by the Head Chef (and occasionally Mr Gomes) only allowed TOIL to be taken at times which suited the business.  The Claimant was not permitted to take TOIL when the restaurant was particularly busy. 

(c)       The complaint text message and the Respondent's response showed that kitchen staff arranged their own TOIL.  Mr and Mrs Gomes did not monitor their staff overtime and TOIL. The Respondent's failure to implement a formal overtime and TOIL policy was unfortunate and should be addressed by the Respondent urgently.  The lack of policy meant that Mr Gomes could not monitor overtime and TOIL and could not ensure that overtime and TOIL were fairly and transparently implemented.  I did not accept Mr Gomes' assertion that it would be impossible to implement such a policy.

(d)       It was the claimant's own responsibility to ensure that he took his TOIL.  There was no obligation on the Respondent to ensure that the claimant took his TOIL.

(e)       The evidence did not show the Respondent to have routinely and unreasonably refused to allow the claimant to take TOIL.  The claimant's own evidence was that he only asked for TOIL approximately once a month.  On these facts, I concluded that one refusal per month did not constitute unreasonable behaviour.  Further, whilst the complaint text message served to confirm that there were occasions when the Respondent refuse to allow the claimant to take TOIL, it did not show that those refusals were unreasonable, nor did it show that such refusals happened routinely throughout the claimant's employment. Similarly the complaint text message only showed that the complainant worked long hours; it did not show that the Respondent routinely refused to allow the claimant to take TOIL."

12.      There was a finding of fact that the Respondent had not unreasonably and routinely refused to allow the Applicant to take time off in lieu.  Although the grounds of appeal seek to raise that conclusion before the Royal Court on appeal, in my judgment the finding of fact is conclusive and cannot give rise to an appeal.  It is true that it amounts to an evaluation of the evidence by the Tribunal, but the findings of fact which cannot be reopened are that the Applicant only sought time off in lieu once a month.  There is no contradiction, despite what the Applicant says in his grounds of appeal, in the Tribunal saying that "time off in lieu [was] to be taken at times which suited the business" and "the kitchen staff arranged their own time off in lieu".  In its context, what that shows is that provided the kitchen staff were taking time off at times which suited the business, the Respondent would permit them to do so in accordance with their contractual terms.  The Tribunal's decision refers to busy times of the year for the Respondent's business and relatively quiet times, and there is no reason why the two statements in the Tribunal's decision cannot be reconciled.  The kitchen staff could arrange their own time off in lieu provided it was taken at the quiet times of the year.

13.      The Tribunal referred to the English case of Vision Events (UK) Limited v Patterson UKEAT/015/13 in which the Employment Appeals Tribunal held by a majority that in the absence of an express term in the contract regarding payment on termination of employment, the Employment Tribunal was wrong to imply a term into the contract that the employee was entitled to be paid for accrued hours that he had not taken off in lieu.  A tribunal may not imply a term in order to make a contract "fair".  

14.      The Tribunal needs of course to be extremely careful in referring to English employment decisions because the law of contract in England and Wales is not the same as the law of contract in Jersey.  In the case of implied terms, as the Deputy Chairman set out in his decision refusing leave to appeal, the leading case is Grove v Briscoe and Baker [2005] JLR 348.  That case confirms that a term may be implied if it is one which would customarily be implied in a contract of the kind in question in the relevant case, or if the inclusion of such a term was necessary because otherwise the contract would be futile, inefficacious or absurd. 

15.      In the instant case, the terms of the contract did not provide for the question as to whether untaken time off in lieu should be remunerated on the termination of a contract.  The Deputy Chairman considered that possibly a distinction could be drawn where termination took place at the instance of the employer from those cases where termination occurred at the instance of the employee.  Here there is no dispute that it was the Applicant, as employee, who gave notice to terminate the contract.  One of the factor which may have gone into his assessment of whether he should give notice or not was untaken time off in lieu.  It is hard to see why the Tribunal should afford greater significance to that factor than clearly did the Applicant. 

16.      In my view, the contract was not entirely silent as to what the position would be.  It provided expressly that there would be no paid overtime.  It seems to me to be impossible to say that in those circumstances, where an employee gives notice with untaken time off in lieu, he should be paid for it.  To imply a term that on the termination of employment the employee should get paid for untaken time off in lieu would be equivalent to saying that he was to be paid overtime.  That was not agreed, and such an implied term would in my judgment run contrary to the express terms of the agreement.  Even if that is incorrect, it is certainly not the case that one needs to imply such a term for the contract not to be futile, inefficacious or absurd. 

17.      In my judgment, the Tribunal was well within its ambit of discretion to decide that, having made the findings of fact which it did, the applicant was the party with the responsibility for claiming time off in lieu, and on his failure to do so at the termination of employment at this instance, his right to claim such time off in lieu lapsed.  As the Tribunal put it, the effect of the overtime clause was that, as regards time off in lieu "the claimant had to use it or lose it". 

18.      There being no error of law, the application for leave to appeal in relation to the unpaid overtime claim therefore is rejected. 

19.      The applicant also brought a claim for unpaid wages upon the basis that there were times he was unable to work because of intolerable conditions in the kitchen.  The Tribunal made the following findings of fact, having indicated that it found Mr Gomes evidence to be more reliable than that of the Applicant and his supporting witness:-

"(a)     The Respondent placed two fans in the kitchen. Mr Gomes' evidence that he did so was supported by text messages which Mr and Mrs Gomes sent to the claimant on 3rd and 4th July 2018, both of which referred to more than one fan being set up in the kitchen.

(b)       The combined effect of four open windows and the open nature of the kitchen and restaurant meant that there was sufficient fresh air in the kitchen for the working environment to be reasonable both in terms of temperature and in terms of smoke extraction; and

(c)       The temperature in the kitchen was not unreasonably hot and the claimant's and xy's evidence was unreliable and inconsistent in this regard."

20.      Those findings of fact having been made, the Applicant's assertions that there was a wrongful conclusion by the Tribunal that he had made no complaint about working conditions is neither here nor there.  The Tribunal concluded that the balance of probabilities that the working conditions remained reasonable in the kitchen while ventilation system was out of service.  It had evidence upon which it could reasonably reach that conclusion.  I see no ground of law which arises here to justify the grant of leave and the case to be argued in the Royal Court. 

21.      The Applicant asserts that the Tribunal gave undue weight to the evidence of Mr Gomes.  That does not amount to a point of law to be raised on appeal.  It is a matter for the Tribunal to determine the weight which it gives to the evidence which it hears, and the Tribunal's judgment is a model of clarity in that respect. 

22.      Finally, the Applicant asserts that there was a similar problem with the Respondent in relation to the lack of a time recording system in 2012.  It is not clear that that was ever the subject of argument before the Tribunal, but in any event it seems to me that it does not raise a question of law on appeal. 

23.      For these reasons, the application for leave to appeal is refused. 

Authorities

Employment (Jersey) Law 2003.

Vision Events (UK) Limited v Patterson UKEAT/015/13

Grove v Briscoe and Baker [2005] JLR 348