Before : |
J. A. Clyde-Smith O.B.E., Commissioner, sitting alone |
Between |
Cristian Raducan |
Appellant |
And |
Pizza Express Limited |
Respondent |
The Appellant appeared in person.
Advocate V. S. Milner for the Respondent.
judgment
the COMMISSIONER:
1. I sat on 10th November 2020 to deal with two matters arising out of the decision of the Employment Tribunal, comprising Advocate C Davies, Deputy Chairman, and R Pitman and A Southern, Panel members, ("The Tribunal") of 19th May 2020 to dismiss the appellant's unfair dismissal claim and his race discrimination claim, for the reasons set out in the Tribunal's judgment of that date ("the Hearing Judgment"). Much of the background of the case is not in contention and I take it from the Hearing Judgment.
2. The respondent is a well-known business that operates a restaurant chain, and it employed the appellant in various roles from February 2013 until June 2019, when he was dismissed. The appellant's most recently held position was that of Deputy Manager, a role he held for the last three years of his employment.
3. The appellant's contract as a Deputy Manager required him to comply with the Management Tills, Cash and Security Policy, and it is apparent on the face of that document that the policy is taken very seriously by the respondent. It states: "Failing to follow this policy may be classed as gross misconduct and may result in disciplinary action being taken against you which may result in your dismissal in the most serious of cases." It was clear to the Tribunal from the evidence it heard that this policy was key to the respondent's way of working, and if for any reason a manager is not able to follow standard procedures, he or she must write the incident up in the Financial Incident Log.
4. In May 2019, the Loss Prevention Team for the respondent noticed that there were discrepancies in respect of the cashing-up process at the site where the appellant worked in the period between April and May 2019.
5. When these discrepancies were investigated, it appeared that the appellant had been authorising unexplained refunds in his capacity as the manager on duty and had re-opened tables many hours after they had been closed. The Tribunal was provided with extensive evidence in relation to the investigation which had identified a significant number of suspicious transactions which appeared to relate to the appellant.
6. The suspicious transactions were then investigated by Mr Ross Gerry, a restaurant manager outside Jersey, who on 24th May 2019 interviewed two of the appellant's fellow team members and was satisfied that they had not participated in any conduct that was concerning.
7. On 26th May 2019, the appellant gave formal notice of his resignation so that his employment would terminate on 23rd June 2019, but notwithstanding this, the respondent decided to continue with the investigation.
8. The appellant was absent from work due to ill health between 24th May and 10th June 2019, having been diagnosed with stress and depression, and as a consequence, Mr Gerry was unable to meet with him.
9. Mr Gerry was of the opinion that he had accumulated evidence of gross misconduct and decided that there should be a disciplinary process. The allegations were firstly, that the appellant had not followed company procedure when re-opening closed tables and secondly, that the appellant had not followed the financial incident reporting procedures.
10. The appellant was suspended from work as soon as he returned from sick leave. The respondent's disciplinary policy states that an employee suspected of gross misconduct will usually be suspended. The appellant was then signed off for a further period, which would not expire until after his termination date. The appellant agreed to attend a disciplinary hearing during his sick leave, despite his resignation.
11. The appellant was summarily dismissed on 23rd June 2019 following a disciplinary hearing conducted by Mr Kris Kilianczyk, the General Manager for Jersey. The hearing had been due to take place on 13th June 2019 but was delayed due to the appellant's ill health. During the hearing, the appellant essentially accepted that he had breached the till management policy. He said that he had experienced IT issues, which he had reported, and that the restaurant was sometimes too busy to follow the till policy. The incidents of non-compliance had not been written up in the Financial Incident Log.
12. The letter notifying the claimant of his dismissal was dated 22nd June 2019 and was based on a finding that the allegations set out in paragraph 9 above were found to be proven.
13. The appellant chose to exercise his right of appeal. His grounds were, in summary, that the outcome of the case had been pre-determined, that there were poor working practices in the restaurant, that he had been unfairly suspended, that he had been treated unfairly to the detriment of his health and that the respondent failed to investigate properly. The appeal hearing was held by Mr Christopher Hunt, the Operations Manager for the South-West region of England, on 9th July 2019. The appellant was notified by letter on 12th July 2019 that Mr Hunt had rejected his appeal.
14. There were other points in dispute before the Tribunal, in summary:
(i) The way the appellant was suspended which he found distressing. He alleged that Mr Kilianczyk said at the time of his suspension:
"You know what you did. I am disappointed".
Mr Kilianczyk did not admit using those words.
(ii) Over the disciplinary procedure, which the appellant was felt was unfair, being in parts too fast and in other parts too slow, with the respondent not exploring the evidence sufficiently.
15. In terms of the procedure at the disciplinary and appeal hearings, the Tribunal said this at paragraphs 8 e. and f.:
"e. We heard evidence from Mr Kilianczyk in relation to the disciplinary hearing. He explained how he had approached the hearing. Late evidence of additional suspicious transactions was, properly disregarded from the decision making. He denied that he had pre-judged the outcome of the hearing, but he felt that the evidence was overwhelming and the Claimant had not offered a reasonable explanation. It was a very serious matter and he had no choice but to reach a decision to summarily dismiss the Claimant;
f. We heard evidence Mr Hunt in relation to the appeal. Mr Hunt had appointed Mr Gerry to investigate the unusual transactions but had no further real involvement until the appeal. He did not discuss the case with Mr Kilianczyk. Mr Hunt explained how he had approached the appeal, and how he had carefully considered the Claimant's concerns. Mr Hunt also felt the evidence was overwhelming, and that the decision to dismiss was correct. He had explained to Mr Raducan that the case might be reported to the legal team, as per the company policy, but ultimately it was not his decision."
16. The appellant had also asserted that the standards in the restaurant had slipped, which was denied by the respondent's witnesses, who explained that the till process was vital to the proper management of the business, and that the policy was taken very seriously. The appellant also complained that Mr Kilianczyk and Mr Hunt had been in contact with each other throughout the investigation and that this undermined the fairness of the process. They denied this. Although the Tribunal was provided with e-mail exchanges between the appellant and Mr Kilianczyk, which had been copied to Mr Hunt, both Mr Kilianczyk and Mr Hunt were clear that Mr Hunt did not take an active role in the case until he became involved as appeal officer.
17. For the purposes of this appeal, it is relevant only to set out the Tribunal's findings in relation to the unfair dismissal claim, which were as follows:
"9. We felt that the Respondent's witnesses gave good evidence. It was hard to find any fault with the process that they followed. We did not think it was too fast, or too slow. Mr Raducan's sickness was an issue that required them to vary from their usual procedure, but we felt that they dealt with this reasonably. We find that the employer responded reasonably to the Claimant's request for information and documents and that he was given an opportunity to explain the discrepancies that had been found.
10. We have considered the evidence that the till procedure was not being followed in the Restaurant. We find that even if this was the case during busy periods, which the Respondent denies, it would not explain the nature or volume of the transactions that we saw or the failure to write up any departure from policy in the incident book. We also find that the policy is core to the management of the Respondent's business because of the way that the till system operates - in essence, because there is no 'till', the restaurant is dependent on managers and staff following its financial rules. We find that it was brought to the Claimant's attention in writing that the policy was important, and that a failure to follow it could amount to gross misconduct.
11. We did not feel that Mr Kilianczyk had pre-determined the dismissal prior to the disciplinary hearing. We did not feel that there was any evidence that there had been unprofessional or biased conduct by Mr Hunt as the appeal officer.
12. The Claimant argued that two of their team members should have been re-interviewed. We heard evidence on this point and we are satisfied that the decision not to re-interview witnesses, or search out new witnesses, was reasonable in the circumstances. We understand that the Claimant felt that the team members may have been able to shed some light on what was normal practice in the restaurant, but they had denied having any relevant knowledge and appeared to correctly describe company policy. Even if that were not the case, we do not feel that poor staff practices would have explained the nature or number of unusual transactions that were found.
13. It is important to note that the Claimant was dismissed for his failure to follow an important policy, not for dishonesty per se. We find as a fact that the Respondent conducted a reasonable investigation, and had reasonable grounds to believe that the Claimant was in breach of the policy."
18. The appellant's race discrimination claim was over the way he had been suspended, the disciplinary procedure implemented, the conduct of Mr Hunt and the decision to dismiss him. This was also dismissed by the Tribunal on the basis that the appellant had offered very little, if any, evidence that he had been treated differently and it had seen no evidence that the decision to dismiss him had been racially motivated.
19. The appellant wrote to the Tribunal on 25th May 2020 asking it to reconsider the Hearing Judgment in the interests of justice, which application was rejected by the Tribunal on 26th May 2020. I note in passing that under the Employment Tribunal's guidance note "Challenging a Judgment", it attributes to itself a wide power to reconsider final judgments or orders going beyond the setting aside of default judgments, a power which it was held to have under Article 89 of the Employment (Jersey) Law 2003 ("the Employment Law") following Wood v JT [2015] JRC 133 at paragraphs 10 and 11, to where reconsideration is "in the interests of justice". Advocate Milner was unable to point me to any statutory underpinning of such a wide power, as set out in the guidance note, to a tribunal that might ordinarily be considered to be functus officio following the handing down of a final judgment or order.
20. The appellant applied for leave to appeal the Hearing Judgment and this was considered by Mrs H G Griffin, Chairman. In her judgment of the 19th June 2020 ("the Permissions Judgment") she first noted correctly that under Article 94(1) of the Employment Law an appeal lies only on a question of law, and that, following Sumera v Atlantique Seafood t/a Soy Sushi Restaurant [2019] JRC 164 at paragraph 4, leave should only be granted where it was clear that a question of law had arisen which would lead to the original decision of the Tribunal being set aside, questions of law being characterised in this way:
(i) The tribunal had misdirected itself in law or misunderstood the law or misapplied the law; or
(ii) There was no evidence to support a particular conclusion or finding of facts; 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; or
(iv) An incorrect procedure had been adopted by the tribunal.
21. The appellant had set out fifteen grounds of appeal which did not make it clear to which claim they related. The Chairman collated these grounds of appeal and dealt with them in this way:
"Grounds of appeal
9. Having carefully considered the Appeal Application (and having kept in mind that the Claimant is unrepresented), I consider that it contains the following grounds for appeal.
a) that the Tribunal misapplied the law by failing to:
i. identify either an actual comparator or construct a hypothetical comparator whose circumstances were identical to those of the Claimant, save for his race;
ii. analyse whether the Claimant suffered less favourable treatment when compared to the comparator; and
iii. if so, whether such less favourable treatment was because of race (rather than for another reason). The Claimant asserts that the Tribunal failed to consider the Claimant's evidence that he was the only employee to have been escorted out of the workplace and the door shut behind him;
b) that the Tribunal made findings of fact without having considered the Claimant's evidence, choosing instead to only accept the evidence of the Respondent's witnesses. The Claimant asserts that this shows bias on the part of the Tribunal; and
c) that the Tribunal did not properly consider whether Mr Hunt was biased and that, had it done so, the outcome of the case would have been different.
Conclusion
10. I find that the grounds of appeal outlined in paragraph (a) above do amount to a point of law which (if successful) could lead to the Judgment being set aside.
11. Permission to appeal to the Royal Court is granted." (her emphasis)
22. Advocate Milner, for the respondent, submitted that under the Permissions Judgment leave had been granted to appeal the finding on the race discrimination claim and not the finding on the unfair dismissal claim. I do not agree with this interpretation of the Permissions Judgment. The word "Judgment" in the Permissions Judgment is defined as the judgment of the Tribunal of the 19th May 2020 in which the Tribunal rejected the appellant's claims for unfair dismissal and race discrimination. Whilst the two claims are made under two different laws (the Employment Law and the Discrimination (Jersey) Law 2013), albeit both dealt with by the Tribunal, it is clear that the appellant was contending that the decision to dismiss him was racially motivated and was therefore unreasonable for the purposes of Article 64(4) of the Employment Law. Leave was granted to appeal the Hearing Judgment as a whole, but on the limited question of law identified in the Permissions Judgment, a question that relates to whether the appellant has been treated less favourably because of his race (the race discrimination claim) and whether the decision to dismiss him was racially motivated (the unfair dismissal claim).
23. The appellant had filed a Data Subject Access Request on 27th March 2020 and pursuant to that request, the respondent provided the appellant with DSAR documentation on 25th June 2020 (after the Permissions Judgment) comprising a bundle of e-mails.
24. The appellant now seeks leave to appeal the Permission Judgment on the basis that it should not have been limited to that one question of law and to adduce new evidence comprising the e-mails disclosed following the DSAR request and some photographs the appellant had taken of computer equipment at the restaurant.
25. On 25th September 2020, the Royal Court:
(i) granted the appellant leave to appeal the Permissions Judgment, and
(ii) granted the appellant leave to make an application to the Court seeking leave to adduce new evidence on appeal.
26. I am therefore seized of these two applications, but it seems to me that there is no process by which a decision of the Tribunal to refuse leave to appeal can itself be appealed. Article 94 of the Employment Law provides, in so far as relevant:
"(1) A person aggrieved by a decision or order of the Tribunal may, on a question of law only, appeal to the Royal Court by applying to the Tribunal for leave to appeal.
(2) ...
(3) ...
(4) ...
(5) ...
(6) Where the Tribunal refuses leave to appeal, the person aggrieved may apply to the Royal Court for leave to appeal."
27. Where the Tribunal refuses leave to appeal a decision it has made, the appellant's remedy is to apply to the Royal Court for leave to appeal that decision pursuant to Article 94(6), not to appeal the Tribunal's refusal to give leave. In this case, the Tribunal has granted leave to appeal the Hearing Judgment in its entirety, having identified one question of law for consideration by the Royal Court. I venture to suggest that leave to appeal having been granted and the Hearing Judgment in its entirety now being before the Royal Court, it is not constrained by the question of law identified in the Permissions Judgment but would be free, subject to issues of procedural fairness, to consider any other questions of law that in its view arise on the appeal. In any event I intend to treat the appellant's application as being one for me to consider whether his grounds of appeal give rise to any questions of law other than that identified in the Permissions Judgment, as well, of course, to consider his application to adduce new evidence.
28. What is comprised in an appeal on a question of law only is set out above (and see also Voisin v Brown [2007] JRC 047 at paragraph 18). The appellant complains that in the Permissions Judgment, the Chairman referred only to three of his grounds of appeal, when there were fifteen grounds put forward by him, but that fails to appreciate that the Chairman had helpfully collated all of his grounds of appeal into the three categories set out above.
29. Without setting out all of his grounds in full, and excluding those which appear relate to the issue of race discrimination, the grounds of appeal were, in brief summary:
(i) that the investigation carried out by the respondent was inadequate in a number of respects, and there were a number of matters which should have been investigated further.
(ii) that the appellant's explanations as to some of the refunds were not taken into account by the Tribunal.
(iii) that one of his witnesses could not come to the hearing and give evidence and the evidence of his other witness, Mr Bogdanel Popa, had not been taken into account.
(iv) that the time between the suspension and the disciplinary hearing was too long, making it difficult for him to remember the individual incidents.
(v) that the Tribunal did not consider Mr Hunt to be biased and that he should not have been the appeals officer.
(vi) that the respondent breached confidentiality by informing his colleagues of the case before its conclusion, showing bias on its part.
(vii) that the respondent had not taken into account sufficiently the appellant's clean record, cooperation and attendance at the disciplinary hearing and reached a decision that was too harsh.
In his application for leave to appeal the Permissions Judgment to the Royal Court, the appellant reiterates and expands upon these grounds.
30. It is for the Tribunal to assess the evidence of the witnesses and make decisions as to the facts. The Tribunal found that the respondent's witnesses gave good evidence and found it hard to fault the process that had been followed. It did consider the appellant's evidence, and that of his witness, Mr Popa, but found that this could not explain the nature or volume of the transactions that it saw or the failure to write up the departure from policy in the Financial Incident Log. It had the statement of the appellant's other witness Ilona Paradzinska, but in the words of the Tribunal she "failed to attend the hearing" and the Tribunal reasonably thought it is was unfair on the respondent to place any weight on it (paragraph 6 of the Hearing Judgment). I note that her statement is in any event concerned with the appellant's treatment when he was suspended, which is part of his case on race discrimination. The Tribunal disagreed that Mr Kilianczyk had pre-determined the outcome of the disciplinary hearing or that there was any evidence that Mr Hunt had been unprofessional or biased in his conduct. It found as a fact that the respondent had conducted a reasonable investigation and had reasonable grounds to believe that the appellant was in breach of the policy.
31. In essence, the appellant disagrees with all of these findings of fact and argues that, leaving aside the issue of race discrimination, the decision of the Tribunal was unreasonable, but he does not, and in my view, cannot argue that there is no evidence to support the conclusions reached by the Tribunal or that those conclusions were perverse, in that no reasonable tribunal could have reached them or that they were obviously wrong.
32. By limiting appeals to questions of law, the legislature clearly intended that there should be finality in relation to employment disputes. The appellant's other grounds of appeal do not raise any points of law which if successfully argued could lead to the dismissal decision being set aside. It follows that the only question of law currently before the Royal Court is that identified in the Permissions Judgment.
33. The appellant applies for leave to adduce the following new evidence:
(i) Three photographs he took of the back of the computer at the restaurant on 23rd November 2018 and photographs he took of the computer screen taken on 5th March 2019 and 28th March 2019. He says he was not aware at the time of the hearings that he was still holding these photographs. He said the two photographs of the screen show "frozen" tills sent to the IT department to investigate. These, he says, are a few of many instances where he had to do late refunds as a consequence of IT difficulties.
(ii) The e-mails received from the respondent after the hearings, as a consequence of the DSAR.
34. There is no authority on the principles to be applied on applications to adduce new evidence on an appeal from a decision of the Tribunal and no reference to it in the Employment Law or Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016. Guidance can be found, however, in the context of appeals to the Court of Appeal from decisions of the Royal Court. In the case of Hacon v Godel & Another [1989] JCA 181, the Court of Appeal applied the principles set out in Halsbury Volume 37 at paragraph 639 as follows:
"The Court of Appeal has power to receive further evidence on questions of fact. Before further evidence will be admitted, (1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and (3) the evidence must be apparently credible, although it need not be incontrovertible."
35. The judgment went on to say:
"... But the fact is the Courts have been sparing in the exercise of the power because they have had regard to the well-known maxim that there should be a finish to litigation and that if one allowed too wide margins for the appellants or respondents as the case may be to bring further evidence, the case itself would be undesirably prolonged."
36. That is the same test as set out by the English Court of Appeal in the case of Ladd v Marshall [1954] EWCA Civ 1 which is the case that has been referred to by the Tribunal in the two decisions of Lopes v Fresh Dough Company Limited [2019] TRE 176R and TRE 176A.
37. If new evidence is admitted, the question would arise as to what the Royal Court would then do with that new evidence, bearing in mind its role is restricted to questions of law and it is the Tribunal as the fact-finding body that would be the appropriate body to consider new evidence. The Employment Law is silent as to the powers of the Royal Court on an appeal (in contrast to the English Employment Tribunal which has wide powers under section 35 of the Employment Tribunals Act 1996), but it was held in Voisin v Brown that where an appeal on a question of law was allowed (and presumably the decision of the Tribunal quashed), the Royal Court had the power to remit the matter back to the Tribunal. In any event that is not an issue that arises here for the reasons that follow.
38. Taking first the photographs, this was evidence that was available to the appellant in that it was in his possession and could have been obtained by him and presented to the Tribunal as part of his evidence with reasonable diligence.
39. In any event, whilst the photographs are credible, in that they show what they show, they would not have had an important, if any, influence on the result of the case. Three of the photographs simply show the back of a computer, from which nothing can be deduced, and two photographs show single screen shots. Furthermore, they predate the period for which the appellant was under investigation namely the period from 18th April 2019 to 12th May 2019.
40. Turning to the e-mails, I agree with Advocate Milner that it was not surprising that the DSAR gave rise to a number of e-mails that were not before the Tribunal. In the main, they are of no relevance, dealing with such issues as sick pay, the drafting of letters and the appellant's attendance at the disciplinary hearing. I note that some e-mail chains are initiated by the appellant and copied by him to Mr Hunt. In one such e-mail of 12th June 2019, the appellant asks Mr Kilianczyk for twelve days of his sickness to be paid by the respondent, a request which Mr Kilianczyk described as "cheeky" in his internal response to Mr Hunt. A similar comment is made by him in an internal e-mail of 13th June 2019.
41. The e-mail which the appellant highlights is an internal e-mail from Mr Kilianczyk of 13th June 2019, copied inter alia to Mr Hunt, where he says this:
"On 26/05 he sent us his resignation letter. In my opinion he must have suspect that something is going on about him, and that's why he did it to avoid the dismissal. And that what he is doing now.
The evidences for his case are very strong. I never see such clear one to be honest and there is no doubt he was doing it. I don't know what he could potentially say to avoid dismissal. As you are aware, he was once dismissed for similar conduct, but then the decision was overturned."
42. The appellant argues that this e-mail shows that Mr Kilianczyk, who conducted the disciplinary hearing, had pre-judged the outcome, coming to the hearing with a closed mind.
43. As Advocate Milner points out, there is a difference between a disciplinary officer assessing the evidence that has been presented to him before the disciplinary hearing and following a fair process during that hearing. In preparing for the disciplinary hearing, it would have been Mr Kilianczyk's task to review and consider the evidence against the appellant, and inevitably, to have a view about its strength, but that does not mean that his mind was closed to whatever explanation the appellant might give at that hearing, The allegation that Mr Kilianczyk had pre-judged the disciplinary hearing was firmly before the Tribunal and he said in evidence that in his opinion, the evidence against the appellant was "overwhelming". His evidence was, therefore, entirely consistent with what he said in this internal e-mail and Mr Kilianczyk satisfied the Tribunal that his mind was not closed and he had not pre-judged the outcome.
44. As for Mr Hunt, the Tribunal was aware that he had been copied into e-mails (paragraph 8 i. of the Hearing Judgment). Mr Hunt too felt that the evidence against the appellant was overwhelming, but he satisfied the Tribunal that he was not biased or unprofessional in his conduct of the appeal.
45. In my opinion, these e-mails would have added nothing to the evidence that was already before the Tribunal. Advocate Milner concedes that the first part of the test in Hacon is met in that this was not evidence that could have been obtained by the appellant with reasonable diligence for use at the hearing, as he was unaware of its existence. The third part of the test is also met in that the e-mails are credible on their face. The second part of the test, however, is not met, in that they would not have had an important influence on the result of the case.
46. I therefore refuse the application of the appellant to adduce new evidence.
47. In the premises, the appellant's appeal against the Hearing Judgment should now proceed on the basis of the one question of law identified in the Permissions Judgment.
Authorities
Employment (Jersey) Law 2003.
Sumera v Atlantique Seafood t/a Soy Sushi Restaurant [2019] JRC 164.
Discrimination (Jersey) Law 2013.
Voisin v Brown [2007] JRC 047.
Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016.