2006 judgments

Document Sample
2006 judgments Powered By Docstoc
					                                          2006 Judgments
                                  Jersey Employment Tribunal
Case Number:             2208007 /05


Applicant:              Mrs Christine Brennan
Respondent:             Family Nursing & Home Care (Jersey) Inc


Case Summary:
Unfair Dismissal: Article 64 of the Employment (Jersey) Law 2005 including examination of
„reasonableness‟ of employer‟s response, and the importance of natural justice in a dismissal
process; Breach of contract claim pursuant to article 86 of the Law.


Hearing on 9th January 2006
Before:                 Mrs Nicola Santos-Costa, Deputy Chairman
                        Mrs Sue Armes, Panel Member
                        Mr Samuel Le Breton, Panel Member


Representation:
For Applicant:          Wing Commander Stella Gardiner
For Respondent:         Mrs June Summers-Shaw


Witnesses:
For Applicant: Mrs C Brennan
                        Mr D Egre
For Respondent:         Miss K Huchet
                        Mrs J Summers-Shaw
                        Mr R Joualt
                        Mrs E Martins
                        Jurat P Morgan
                        Mr P Le Maistre


The Issues:
It was agreed by the parties that the Tribunal was required to decide upon the following two
issues:
         Was Mrs Brennan unfairly dismissed from her position as an Information Governance
          Officer by FNHC.
         Was Mrs Brennan‟s contract of employment breached because the disciplinary process
          referred to in her contract of employment was not followed by her employer. Further,
       is Mrs Brennan entitled to bring proceedings for this breach pursuant to article 86(3) of
       the Employment (Jersey) Law 2003 („the Law‟).


The Facts:
Christine Brennan was employed by Family Nursing & Home Care (Jersey) Inc („FNHC‟) on a
temporary contract on 16th August 2004 as a Project Officer – Information Governance
Implementation. At that time the FNHC computer system was using a Windows 95 system
which was incompatible with the Health & Social Services (HSS) computer system. This
meant that the sharing of relevant data and files was precluded. It was decided at director level
of both organisations that this compatibility should be achieved and a joint governance and
coordination project between FNHC and HSS was established. Mrs Brennan was appointed to
represent FNHC‟s interests in this project and to ensure compliance. Mr Dominic Egré had a
similar role in HSS and was appointed liaison officer with FNHC on data protection matters.


Due to the incompatibility of the two computer systems of FNHC and HSS it was directed that
Mrs Brennan would be provided with an OIS terminal belonging to HSS (OIS = Office
Information System). The terminal and connectivity was approved at director level of both
HSS and FNHC. This terminal was essential to her role.


It is noted that this was always meant to be a temporary arrangement until the eventual
incorporation of FNHC into the OIS system and the reformatting of directory and data storage
management systems across both organisations. Mrs Brennan‟s terminal was set up by the ICT
department of HSS and she was told in which area of the computer she would be operating –
i.e. – where her data would be held. Nobody asked her any questions about this or directed
her otherwise. This meant that her data (for FNHC) was stored within the data protection
directory on the HSS network. Mrs Brennan was set up with her own sub directory labelled
„FNHC „within it. It appears that Mrs Brennan had no control over this process. Mrs Brennan
attended OIS training provided by the ICT department of HSS. Her access to the system was
approved by the Director of Finance & ICT for HSS.


It is important to note that Dominic Egré was an Information Governance Officer at HSS and
worked with Mrs Brennan to ensure that both systems were compatible. Mr Egré was never
Mrs Brennan‟s line manager, indeed Karen Huchet, director of FNHC, was her line manager.
However the Tribunal were given the impression that Mr Egré provided advice to Mrs
Brennan on a regular basis and Mrs Brennan relied upon him to do her job. In fact Mr Egré
admitted that he was involved in Mrs Brennan‟s work for example by topping and tailing
documents, producing graphics on her behalf, producing some pdf documents and also
writing some reports for her. He stated that there was no intention to deceive about this. This

                                               2
gives the Tribunal the impression that Mrs Brennan considered him senior to her. Indeed
FNHC, at a later stage, offered him employment as her supervisor. For reasons mentioned
below this post was not taken up.


Mrs Brennan informed the Tribunal that she accessed her work on the computer terminal via
an icon marked „FNHC‟ but on two or three occasions when for some technical reason that
access was unavailable, a separate icon on her desktop marked „data protection‟ gave her
access to her FNHC files. The Tribunal heard evidence that this „DP‟ short cut led her to Mr
Egré‟s data protection folder in which her FNHC folder was positioned. On Mr Egré‟s data
protection folder appeared a number of documents which were relevant to his work. Amongst
these documents were two folders marked „Internal Breaches‟ and „Centenier‟s Reports‟ which
were brought to the particular attention of the Tribunal as described below.


In January 2005 the OIS system was rolled out. FNHC was therefore compatible with the
system used in HSS. At this point there was a data protection folder set up for FNHC in the
FNHC„s part of the HSS system. From what becomes clear later, Mrs Brennan was expected to
keep all her work in this folder. This folder had been set up in a format for Miss Huchet and
Mr Howard Basden-Smith to have access to. This was standard practice. It should be noted
that at this time work on the Information Governance Implementation Project was still
ongoing.


On 1st March 2005, Mrs Brennan was appointed to a permanent position of Information
Governance Officer – Health & Social Care. Her job description widened to, „establish and
undertake the provision of Information Governance standards within Family Nursing and
Home Care. Assist the organisation in meeting [its] legal obligations in providing policies and
procedures with respect to Data Protection, Caldicott, information security and confidentiality
and act as liaison with appropriate officers in HSS and other public and private sector bodies
on matters relating to Information Governance‟.


On the 23rd June 2005, Mr Egré admitted to Miss Huchet and Jurat Peter Morgan (the Chairman
of the FNHC Committee) that he had been suspended from his role at HSS for irregularities
and had been accused of e-mail fraud. FNHC withdrew their offer of employment to Mr Egré.
This gave rise to concerns about any implications that Mr Egré‟s suspension might have on
Mrs Brennan‟s ability to do her work and if there was any risk to FNHC data, which Mrs
Brennan denied. Mrs Brennan was questioned about this matter on 24th June 2005 and on
several occasions afterwards. Miss Huchet as Mrs Brennan‟s line manager, offered support
during this period.



                                               3
On the 4th July 2005, Mrs Brennan asked Mr Basden-Smith to set up an „A1 Management
Folder‟ in the system for her use. Mr Basden-Smith is the Salaries Officer and in charge of IT
support at FNHC. An A1 Management Folder is accessible by Miss Huchet and Mr Basden –
Smith. Mr Basden-Smith was aware that an A1 Management Folder already existed for Mrs
Brennan in the FNHC system: the file referred to above on the OIS rollout. Mr Basden-Smith
was concerned enough by this request to inform Miss Huchet. This request triggered an
investigation as to why the existing A1 Management Folder was not being used. It was
discovered that this file was empty and that Mrs Brennan‟s work was still being kept in a data
protection folder on the HSS site alongside Dominic Egré‟s work. This file could only be
accessed via the HSS network to which Miss Huchet and Mr Basden-Smith did not have direct
and immediate access. It is standard practice in FNHC that Miss Huchet should have direct
access to all files, especially as she is Caldicott Guardian. Miss Huchet was most concerned not
to have access to Mrs Brennan‟s folder.


The FNHC file on Mr Egré‟s data protection folder contained all the work that Mrs Brennan
did for FNHC. Only she and Mr Egré had access permissions to this area although it could be
accessed via the States ICT department which runs a 24 hour service. This does not appear to
be a secret file.


FNHC took advice from the Data Protection Commissioner because they were concerned that
their work was being held outside their systems and their data was not accessible to them in
the normal manner. The Commissioner indicated that this was a matter for concern and FNHC
should investigate it and if necessary, take steps to secure their data and regain control of their
information.


Mrs Brennan was suspended on 8th July 2005 whilst further investigations were carried out
into the location of her work, any data protection issues and one other issue, details of which
were set out in a letter to her from FNHC of the same date.


HSS set up permissions for FNHC to have access to Mrs Brennan‟s working files. On doing so
FNHC found that Mrs Brennan‟s work was kept in a folder called „FNHC‟ within the HSS
Data Protection folder and alongside other items of work belonging to Mr Egré. The attention
of the Tribunal was drawn to two of these items entitled „Internal Breaches‟ and „Centenier‟s
Report‟. Evidence was heard that the Internal Breaches folder contained correspondence with
such persons as Dr. Carolyn Coverly, the Consultant Child and Adolescent Psychiatrist. The
Centenier‟s Report contained information relating to Mr Egré‟s voluntary role as a Centenier
of St Peter. There were also a number of loosely filed FNHC documents many of which were
marked „pdf‟ within the data protection folder together with a quantity of other HSS material.

                                                 4
On discovering these files, FNHC advised HSS and returned the information to them
retaining only their own documents. There was some problem in returning the work to the
Parish of St Peter, so the Centenier‟s Report was secured.


On suspension Mrs Brennan was given a letter from FNHC, dated 8th July 2005, which
described the reasons for her dismissal and her status whilst suspended. This letter also states
that the „disciplinary procedure [of FNHC] is attached‟ and assured her „that a rigorous and
fair process will be followed in line with considered fair practice and your contractual rights‟.
This attachment was the Civil Service Disciplinary Procedures („the Procedures‟). When
referring to any disciplinary meetings to be held in the future, the letter quotes procedure
directly from the Procedures.


The Tribunal heard evidence that the background to the Procedures is as follows. Mrs
Brennan entered into a permanent contract of employment with FNHC on 1st March 2005. This
contract comprised 2 parts, headed Part 1 and Part 2 respectively: the first part set out the
individual details of the contract, her name and address, title of her post, salary earned etc..
This part is signed and dated by both parties. The second part of the contract sets out the terms
and conditions of employment for administration and other staff. This part deals with such
matters as Mrs Brennan‟s probationary period, salary reviews, annual leave, sick leave and
confidentiality of information and disciplinary procedures. This part of the contract is also
signed and dated by both parties. Whilst the first part of the contract makes no mention of the
second part (and vice versa), it is clear from the parties‟ conduct that the two parts are meant to
be read together and together form part of Mrs Brennan‟s contract of employment.


The paragraph dealing with FNHC‟s disciplinary procedures appears as an unnumbered
paragraph on page 3 of part 2 of the contract. This states as follows:
“if an employee violates work procedures or accepted standards [ , ] of behaviour and [does]
not attain the set standard then he or she can expect to be dealt with in accordance with normal
disciplinary procedures, which have been the subject of consultation between management
and Staff Associations or unions. You have the right to have a representative of the union, or a
friend not acting in a legal capacity, [to] advise you and be present at a disciplinary hearing
involving you.”


On the 10th July 2003 Miss Huchet had executed a memorandum identifying the disciplinary
procedures to be used by FNHC by certain sections of members of staff which in the case of
Mrs Brennan would be those laid down in the States of Jersey personnel policies for Civil
Servants. This process was in fact set out in a separate document entitled “Civil Service
Disciplinary Procedures”. This memorandum and the Civil Service Disciplinary Procedures

                                                 5
together constitute the „normal disciplinary procedures‟ referred to in Mrs Brennan‟s contract
of employment. Accordingly they formed part of Mrs Brennan‟s contract of employment. It
should be noted that FNHC intended to review their procedures, nonetheless they remained in
place at the time FNHC required a disciplinary process to deal with Mrs Brennan.


By paragraph 1.3 of the Procedures, Mrs Brennan was entitled to request a „pre interview /
hearing meeting‟ to deal with such matters as the required documentation. The employee on
request may bring a representative or colleague to this meeting.


Mrs Brennan was informed by FNHC on 15th July 2005 that a disciplinary meeting had been
scheduled to take place on 25th July 2005. The 4 allegations against Mrs Brennan which the
meeting would consider were set out in full in the letter, together with an outline of the
evidence uncovered to support each of the allegations. Reference was made to the fact that a
copy of the disciplinary procedure had been provided to Mrs Brennan. The letter also stated
that Mrs Brennan would have a full opportunity „to state [her] case and/or highlight any
mitigating factors‟.


On 18th July 2005, Mrs Brennan wrote to FNHC extensively questioning the allegations made
against her in the letter of the 15th July 2005. On the 19th July 2005, Miss Huchet replied that
such matters would be addressed more appropriately at the disciplinary meeting itself and
requesting the identity of the colleague who would accompany Mrs Brennan to the hearing.
On the 20th July 2005, Miss Huchet wrote to Mrs Brennan requesting copies of all
documentation that Mrs Brennan wanted to be considered at the disciplinary meeting to be
held on 25th July 2005.


On the 21st July 2005 Mrs Brennan wrote to FNHC and requested a pre-interview/pre-hearing
meeting in accordance with section 1.3 of the Procedures. She also set out the issues she would
like to discuss at that meeting and confirmed that she would accept a reply by email to those
points if that was more convenient to FNHC.


On the 21st July 2005, Mrs Brennan also wrote to Jurat Morgan, the Chairman of the FNHC
Committee, in similar terms, by way of appeal against the process. In fact Section 3 of the
Procedures state that an employee may appeal at any stage of the disciplinary process except
initial suspension (the stage at which Mrs Brennan found herself). Jurat Morgan did not reply
or acknowledge receipt of the letter.


On the 21st July 2005, Mrs Brennan sent a second letter to Miss Huchet, replying to Miss
Huchet‟s letter of the 20th July. In that letter she reiterated her request for a pre hearing review

                                                 6
meeting and stated that as she had not had access to her records it is not possible for her to
respond to the allegations in detail however some information is provided by her. Finally, Mrs
Brennan confirms that her representative will be Senator Kinnard or failing her, Deputy Egré.


FNHC replied to Mrs Brennan‟s letter of 21st July 2005 on the same day. In it Miss Huchet
states that following discussion with the Chairman, Jurat Morgan, the disciplinary hearing
would go ahead on 25th July 2005 and that the representatives named by Mrs Brennan would
not be permitted to attend as they are not work colleagues. Miss Huchet invited the name of a
colleague by 11am on 22nd July 2005.


On the 22nd July 2005, Mrs Brennan responded that she does, „not consider that the Association
has satisfied [its] own requirements for the Disciplinary hearing or the protection of [her]
rights and as such …. will not be attending‟ the meeting of 25th July 2005. In particular Mrs
Brennan drew attention to her contract of employment which allowed her to bring a friend in
a non legal capacity and also mentioned that the Association had deviated from the rights and
procedures set down in the Procedures. On the 25th July 2005 at 0903am a sick note for Mrs
Brennan was delivered by courier to FNHC.


On the 25th July 2005, Miss Huchet and Jurat Morgan met as planned, Mrs Summers-Shaw was
also present. Ms Summers-Shaw had investigated all of the allegations against Mrs Brennan.
It was agreed that the meeting should be reconvened at a later date. In fact the meeting
reconvened on 1st August 2005 this time at the offices of the Jersey Advisory & Conciliation
Service (JACS). JACS were instructed by FNHC to represent the interests of Mrs Brennan and
to act as scrutineer of the process. Again Mrs Huchet and Jurat Morgan comprised the
disciplinary panel and Mrs Summers-Shaw acted as adviser.


Mrs Brennan was not informed of the new date for the disciplinary meeting or its venue.
Furthermore she was not invited to the meeting or allowed to send a representative. She did
not instruct JACS to represent her interests.


A decision was taken at that meeting of 1st August 2005 that there was insufficient information
available to the panel to consider and to make an objective decision on the first allegation
against Mrs Brennan (as described in the letter to her of 18th July 2005) but the following 3
allegations were unanimously upheld and that Mrs Brennan should be dismissed summarily
by virtue of her gross misconduct.


These findings and decisions were communicated to Mrs Brennan by a letter dated 2nd August
2005 from FNHC. This letter also described Mrs Brennan‟s right to appeal against this decision

                                                7
at an appeal hearing to be held (if required) on 10th August 2005. Mrs Brennan was informed
that she may bring a work colleague to the appeal hearing and also of the names of the 3
people making up the Appeal Panel.


On the 4th August 2005, Mrs Brennan confirmed her intention to appeal against the findings of
the disciplinary panel. Mrs Brennan also requested a list of documents that she would like to
be made available to the Appeal Panel, and requested copies for herself.


On the 8th August 2005, Mrs Brennan informed FNHC that her representative at the appeal
panel would be Wing Commander Stella Gardiner.


On the 9th August 2005, Miss Huchet replied that the list would be given to the panel so they
may decide what is relevant and that Mrs Brennan may indicate the relevancy of a document
on the list to the allegations to the Panel at the appeal at which point the Appeal Panel would
consider whether a copy of that document should be made available. The letter also stated that
only a work colleague may attend the hearing and that Mrs Brennan‟s representative, W/C
Gardiner, did not appear to fit that criteria. However it would be the Appeal Panel‟s decision
as to whether to allow W/C Gardiner to attend or not.


The Appeal Panel were presented with Guidance Notes prior to the hearing which had been
prepared by Mrs Summers-Shaw. No copy of these notes was made available to Mrs Brennan
who remained unaware of them.


The Appeal Panel met on the 10th August 2005. Following the procedure contained in the
Guidance Notes, the case of the employer was heard before and independently of the
employee‟s appeal. However, is was agreed by the Appeal Panel, that W/C Gardiner could
represent Mrs Brennan at the meeting, but not address the panel, so all questions had to come
through Mrs Brennan alone. Mrs Summers-Shaw appeared before the Appeal Panel to present
FNHC‟s case as she had been in charge of the investigation. Miss Huchet appeared on behalf
of FNHC to represent the decisions taken at the disciplinary hearing. Jurat Morgan did not
appear.


The Tribunal were informed that the reason why the employer and employee‟s case were
heard separately by the Appeal Panel was so as not to cross contaminate evidence and
therefore prejudice an on-going police investigation into possible breaches of the Data
Protection (Jersey) Law 1987 by Mrs Brennan.




                                               8
The Appeal Panel unanimously agreed to uphold the decision of the disciplinary panel. It
found that the actions described in each allegation „were individually and collectively acts of
gross misconduct for which the most appropriate sanction is summary dismissal‟.


This decision was communicated in writing to Mrs Brennan by the Chairman of the Appeal
Panel, Mr Chris Dickinson, on 12th August 2005.



DECISIONS
Issue 1


In respect of the claim by Mrs Brennan that she was unfairly dismissed from her position as
an Information Governance Officer by FNHC the Tribunal finds as follows:


The letter sent to Mrs Brennan by FNHC of 15th July 2004 sets out four allegations of
misconduct. The first allegation was subsequently unanimously withdrawn by FNHC on the
basis of insufficient information being available to make an objective assessment. For this
reason the Tribunal did not consider it or any evidence pertaining or relating to it.


The other 3 allegations were upheld by FNHC and Mrs Brennan was dismissed by a
unanimous decision for gross misconduct and summarily dismissed on the 1st August 2005.
These findings were found to be correct and justified and the decisions upheld by an appeal
panel on 10th August 2005, which was unanimous in deciding that the appropriate sanctions
had been given by the disciplinary hearing.


The reasons for Mrs Brennan‟s dismissal were as follows:
    „ 1. That you were aware of, or helped compromise our IT and Governance systems by
          allowing Association data to be held outwith our own network or failed to comply
          with a requirement of your role in identifying non compliance with the data
          protections principles.
    2.    That you breached [articles 4(2)(a), article 4(3) and article 4(5)] of the Data Protection
          (Jersey) Law, 1987 and in doing so committed a criminal offence.
    3. That your actions put the reputation of the Association at risk and compromised our
          relationships with our business partners.‟
There are two stages for a tribunal to look at when considering whether a dismissal is fair:
             a. The employer must show the reason for the dismissal and that it is one of the
                potentially fair reasons set out in article 64(2) of the Law, and
             b. If that is successful, the Tribunal must then consider whether the employer
                acted reasonably in dismissing the employee for that reason.
                                                  9
Therefore if on the face of FNHC‟s evidence, the reason could justify the dismissal of Mrs
Brennan, the Tribunal may then consider the reasonableness of that decision.


The reasons for Mrs Brennan‟s dismissal


FNHC did not present the reasons for their dismissal of Mrs Brennan as falling into any
particular category of article 64(2). However it is not unreasonable on the basis of evidence
heard for the Tribunal to assume that Mrs Brennan was dismissed for reasons relating to her
capability to perform the work she was employed to do (article 64(2)(a) and also relating to her
conduct as an employee of FNHC (article 64(2)(b). The principle reasons for Mrs Brennan‟s
dismissal remains unclear, but it is sufficient for FNHC to establish just one of its multiple
reasons as a fair reason for the Tribunal to move on to consider the reasonableness of their
decision.


When dealing with cases involving incapability or misconduct, the employer only has to show
that it genuinely believed on reasonable grounds that the employee was incompetent or guilty
of misconduct. This belief is generally established over a period of time but can be shown by a
single act of negligence or incompetence. In Southern and Gates (Luton) Ltd v Boxall 1979 ICR
67, it was established that where someone fails to come up to standard through his or her own
carelessness, negligence or idleness, that is not incapability but misconduct. The Tribunal
finds that in this case the incompetence allegations are blurred with the misconduct issues as
reasons for dismissal.


In British Home Stores Ltd v Burchall 1980 ICR 303 it was decided that a 3 fold test should be
applied to establish that a dismissal was for misconduct. The employer must show that:
   1. He believed the employee was guilty of misconduct, and
   2. He had in his own mind reasonable grounds to sustain that belief, and
   3. At the time he formed that belief he had carried out as much investigation into that
       matter as was reasonable in the circumstances.


It is important to note that the employer doesn‟t need to have proof, just a genuine and
reasonable belief in the misconduct, reasonably tested.


Bearing these principles in mind the Tribunal looked at the 3 reasons given for Mrs Brennan‟s
dismissal and found that on the basis of the evidence heard, FNHC genuinely believed that
Mrs Brennan was incompetent or guilty of misconduct at the time of dismissing her.



                                               10
Accordingly FNHC have shown that the reasons they dismissed Mrs Brennan were potentially
fair pursuant to article 64 of the Law.


The reasonableness of the decision to dismiss Mrs Brennan


As mentioned above, the next stage is for the Tribunal to consider whether FNHC acted
reasonably in dismissing Mrs Brennan for those reasons. In other words the Tribunal must
assess whether the reason/s given (i.e. incompetency and/or misconduct) were reasonable to
justify the dismissal looking at all the circumstances and in accordance with equity and the
substantial merits of the case (article 64 (4) of the Law).


In NC Watling and Co. Ltd v Richardson 1978 IRLR 255 EAT, the duty of the Tribunal was
described as determining „the way in which a reasonable employer in those circumstances, in
that line of business, would have behaved‟. The Tribunal has adopted this approach when
considering the response of FNHC to Mrs Brennan‟s actions.


The Tribunal has also considered the possible alternative responses by FNHC to the situation
they found themselves in following Mrs Brennan‟s conduct, both in respect to the decision to
summarily dismiss Mrs Brennan and the procedure by which that decision was reached.


Finally as required by the Law, the Tribunal has had regard to the size and administrative
resources of FNHC‟s undertaking when considering the reasonableness of FNHC„s decision to
dismiss Mrs Brennan, as well as equity and the substantial merits of the case. The Tribunal
has taken equity to mean „fair play‟ in this case.


Taking each of the reasons for dismissal in turn, the Tribunal finds as regards the
reasonableness of FNHC‟s conduct in dismissing Mrs Brennan for each reason, as follows:


(1) The first reason given for Mrs Brennan‟s dismissal was that she was aware of or helped
compromise FNHC „s IT and Governance systems by allowing Association data to be held
outwith their own network or she failed to comply with a requirement of her role in
identifying non-compliance with data protection principles.


This reason for dismissal comprises 3 elements, which the Tribunal have looked at separately:
(i) Was Mrs Brennan aware Association data was held outwith the FNHC network?
The Tribunal consider that Mrs Brennan was aware of this situation.




                                                  11
(ii) Did Mrs Brennan help compromise FNHC IT and Governance Systems by allowing data
to be held outwith their own network?


Whilst the Tribunal consider that Mrs Brennan did compromise the FNHC IT and Governance
Systems by allowing data to be held outside their own network, on the evidence heard, this
appears to be by omission rather than by deliberate act. Mrs Brennan‟s evidence showed that
she did not know that the data protection site existed in the FNHC part of the HSS system and
also that she did not know that she should now transfer the information she held into it. No
indication was given to the Tribunal that this information was critical to the Association‟s
daily business or that it would cause harm to the Association‟s patients. Mrs Brennan was
aware that Miss Huchet did not have access to this folder although she said that Miss Huchet
could have access to it at any time through herself, or at any other time through the States ICT
department. The Tribunal believed Mrs Brennan‟s statement that she never questioned Mr
Basden-Smith‟s lack of access to her file as he did not have a clinical background. The
Tribunal finds that whilst it was Mrs Brennan‟s responsibility to identify the need to move
her work into the FNHC data protection site, when the OIS network came on line, she was
unaware of its existence. Mr Egré gave evidence that he did not communicate the need to move
Mrs Brennan‟s work to FNHC to her and he was unaware of the new directory. Further, he was
of the understanding that once the directory restructuring project in HSS was completed the
data protection directory that they were sharing would be discontinued and HSS data would
be placed in a governance area under a directory belonging to HSS and similarly, FNHC data
would be moved by their governance data in their own directory structure. Mr Egré admitted
that this may have been an oversight but evidence was heard that it was not in Mrs Brennan‟s
authority to move this information in any event. The Tribunal are of the opinion that Mrs
Brennan relied heavily upon the assistance of Mr Egré and in the absence of directions from
him did not query where her work was placed.


On hearing the evidence the Tribunal finds that it is clear that Mrs Brennan did not question
the process and has to take some responsibility for the situation that FNHC found themselves
in. However, it has to be said also that FNHC did not ask her if she had moved all her work to
the new data protection site in FNHC following the roll out of the OIS. Mrs Brennan was not a
senior employee, which was tacitly acknowledged by FNHC„s decision to make a more senior
appointment in this area. When Mr Egré did not take up the post even Miss Huchet showed
concern that Mrs Brennan be supported in her work and gave evidence that she did not think
Mrs Brennan knew which folder she should be using.
(iii) Mrs Brennan failed to comply with a requirement of her role in identifying compliance
within the data protection principles.



                                               12
By virtue of paragraph 1 of Mrs Brennan‟s job description which states, inter alia, that she is
required to, „assist [FNHC] in meeting their legal obligations in providing policies and
procedures with respect to Data Protection‟, and more particularly described in paragraph 2 of
that document, it is clear that Mrs Brennan was expected to ensure that FNHC were compliant
with the data protection law.


The Tribunal found that Mrs Brennan did keep her work in folders amongst Mr. Egre‟s
folders which contained information not pertaining to FNHC. Further, she failed to raise or
register any concerns that this situation persisted. Accordingly the Tribunal considers that she
did fail to identify areas of non-compliance as required by her job description.


Conclusion


During the course of the evidence it became obvious to the Tribunal that in respect of this
ground for dismissal, FNHC had become locked into a mind set. It‟s perception of the
relationship between Mrs Brennan and Mr. Egré influenced the manner in which FNHC dealt
with Mrs Brennan. Their beliefs meant that FNHC had lost confidence in Mrs Brennan‟s
ability to do her role and accordingly it was not considered that Mrs Brennan should be
retained or given another role in the organisation. The Tribunal is also mindful of the fact that
no patient information was put at risk and that Mrs Brennan had nothing to gain from her
actions.


The Tribunal heard evidence of both sides and had the benefit of testing that evidence during
cross examination and for itself. This opportunity was not presented to the parties during the
disciplinary process (see below). The benefit of this process means that it becomes clear that
had FNHC taken a step back and considered all the evidence against Mrs Brennan in relation
to this particular reason/s for dismissal, they may have reached a different conclusion.


The Tribunal considers Mrs Brennan‟s actions to be serious and it is clear that she did not
perform the role expected of her. However, she was a fairly junior employee and the technical
side of her work appears to have been largely unsupervised by FNHC (although meetings
were held as to progress). As stated above, FNHC should have allowed Mrs Brennan to state
her case and set out any mitigating circumstances. An honest and reasonable mistake is a
relevant fact in a dismissal process. Although FNHC were not used to dealing with dismissal
processes, they are a large enough employer to engage the expertise they require when faced
with a serious situation. For these reasons and in all the circumstances (including the
discussion of the disciplinary process, below), in respect of the first ground of dismissal, we



                                               13
do not consider that FNHC were justified in summarily dismissing Mrs Brennan for gross
misconduct for the reasons stated by them.


2. The second reason for Mrs Brennan‟s dismissal was that she breached Articles 4(2) (a), (3)
and (5) of the Data Protection (Jersey) Law 1987 and in [so] doing committed a criminal
offence.


It is clear that Mrs Brennan is involved in a police investigation regarding a potential data
protection offence (if any) and her involvement would be a cause of understandable concern
to FNHC. However, at the time of the disciplinary hearing and appeal hearing (and at the date
of the tribunal hearing), Mrs Brennan‟s involvement (if any) in a data protection offence
remained unproven and subject to investigation and decision by the prosecution authorities of
the Island. Circumstances relevant to a possible offence existed only: that does not mean that
an offence had been committed. An employer must obtain sufficient material to justify their
decision to dismiss on the grounds of an unproven criminal offence of which the employee is
not even charged. The wording of this ground of dismissal is so precise as to emulate a
criminal charge: by dismissing on this ground the employer did not allow for a police
investigation to take place. Whilst it may have looked as if the circumstances existed to
support the prosecuting authorities charging Mrs Brennan with an offence under the data
protection law, it was not for FNHC to pre-empt them on this. FNHC worded this reason for
dismissal incorrectly, in fact the circumstances behind the purported breach of the data
protection law went towards her competency to perform the data protection aspects of her job,
and this is discussed in paragraph 1 above. The Tribunal find that FNHC were not justified in
dismissing Mrs Brennan for this reason as stated by them.


3. The third reason that Mrs Brennan was dismissed was that her actions the actions put the
reputation of the Association at risk and compromised [its] relationships with its business
partners.


Taking each part of this reason for dismissal in turn the Tribunal finds as follows:


(i) That Mrs Brennan‟s actions put the reputation of the Association at risk.


The Tribunal finds that the existence of Mrs Brennan‟s work on a FNHC file on Mr. Egre‟s
data protection folder in the HSS file did cause embarrassment to both FNHC and HSS.
However for the reasons stated above, nobody seemed to be aware of the continued existence
of this folder or that Mrs Brennan had not moved her work to the new data protection folder
in the FNHC site. The Tribunal did not hear any evidence to suggest that Mrs Brennan or Mr.

                                               14
Egré intended to use this information for any purpose and it was found during the appeal
hearing that Mrs Brennan‟s work on this folder did not cause patient information to be put at
risk. In addition this was a secure site. It is acknowledged by the Tribunal that Mr. Egre‟s
folder contained information about HSS meetings and other information to which FNHC
would not normally be privy. The Tribunal accepts that this was an embarrassing situation for
both FNHC and HSS. However, the Tribunal heard no evidence to suggest that the reputation
of FNHC was put at risk; the only other party who knew of this omission (HSS) was involved
in it too and seems to bear no ill will to FNHC.


Again, if FNHC had taken the time to step back and assess the evidence, and heard Mrs
Brennan‟s point of view before dismissing her, they would not have included the reference to „
risk‟ in this reason for her dismissal. The Tribunal finds that FNHC were not justified in the
circumstances for dismissing Mrs Brennan for gross misconduct for the reasons as stated by
them.


(ii) That the relationship of FNHC with its business partners was compromised.


The Tribunal heard evidence from Miss Huchet that the only relevant business partner of
FNHC in this context is HSS. This is an entirely subjective opinion of FNHC of the effect of
Mrs. Brennan‟s actions. Although no evidence was heard to suggest that the relationship was
compromised, the Tribunal can accept that the situation between the two organisations was
awkward on discovery of Mrs. Brennan‟s file amongst the HSS folders.


The reasonableness of FNHC‟s actions when dismissing Mrs Brennan


The Tribunal is required to consider whether the employer acted reasonably or unreasonably
in treating his reasons for dismissal as a sufficient reason for dismissing the employee (article
64(4) of the Law). In the case of Polkey v A.E. Dayton Services Limited 1988 1CR 142, it was
stated that the Tribunal must consider whether the employer acted reasonably when
dismissing the employee, and where an employee is dismissed for certain reasons, the
employer    should take particular procedural steps if he is to be considered as acting
reasonably in dismissing him:
       For incapacity – by giving the employee fair warning and a chance to improve,
       For conduct –by investigating fully and fairly and hearing what the employee wants to
        say in explanation or mitigation.
As these requirements mirror the events of the present case it seems reasonable for the
Tribunal to follow the established principles of Polkey here and recognise a concept of a
procedurally unfair dismissal, in other words a dismissal that is unfair because the employer

                                               15
has failed to show a fair procedure even though a potentially fair ground for dismissal has
been established.


Accordingly, procedural fairness is an integral part of the reasonableness test contained in
article 64(4) of the Law. An employer‟s actions in dispensing with a fair procedure are highly
relevant to the question of whether a dismissal is fair. The Tribunal may not concern itself
with whether it would have made any difference to the outcome if the right procedure had
been followed: only if the procedure used was fair and allowed the employee the opportunity
to demonstrate that the reason for dismissal was inadequate.


It is apparent from the evidence heard by the Tribunal that there were a number of
deficiencies in the disciplinary and appeal process adopted by FNHC both as regards
procedure and substance.


From the outset it appeared that FNHC did not intend to follow the process contained in the
Procedures. The Tribunal accepts that the Procedures are not ideal as they refer specifically to
the Civil Service in Jersey. However, with intelligence, sensitivity, communication and the
agreement of both sides, these discrepancies could have been got round. The following are
examples heard by the Tribunal of departures from the Procedures. Mrs. Brennan asked for a
pre-hearing meeting as allowed by paragraph 1.3 of the Procedures and FNHC simply ignored
this request, stating instead that such preliminary issues could be dealt with at the
disciplinary meeting of 25th July 2005. No explanation of this decision was given. The purpose
of the pre-hearing meeting is to allow an employee (or indeed, both parties) to prepare for the
disciplinary hearing. To say such matters can wait until the hearing is absurd. Also FNHC got
themselves into difficulties with the type of representative Mrs. Brennan was allowed to bring
to the disciplinary hearing. The Procedures state a Union/Association representative or work
colleague. Mrs. Brennan‟s contract of employment refers to a Union representative or friend
acting in a non-legal capacity. The Tribunal‟s view is that these two provisions must be read
together and Mrs. Brennan could bring a friend of her choice who at no time was subject to the
approval of FNHC. The Tribunal accepts and agrees that the two friends suggested by Mrs.
Brennan could be considered inappropriate in the circumstances. However, FNHC failed to
communicate its reasons for rejecting these people, instead relying on an assertion that they
were not „work colleagues‟ and therefore not allowed. At no time did FNHC explain their
reasons for not allowing these people to attend and simply ask her to bring another friend. It
appeared to the Tribunal that Mrs Summers-Shaw, Miss Huchet and Jurat Morgan decided on
an ad hoc basis how the process should proceed from its very commencement.




                                               16
The Procedures state at management guideline B, that in the event of the employee‟s absence
due to certified illness from a disciplinary hearing, the meeting shall be reconvened and the
employee informed of the new date and the right to representation. The meeting of the 25th
July was reconvened to 1st August without telling Mrs. Brennan and the meeting was
conducted in her absence. No one present at the 1st August meeting seems to have queried
Mrs. Brennan‟s absence, failure to provide an excuse or failure to send a representative. Mrs.
Brennan was informed of the meeting‟s decision by a letter dated 2nd August 2005. She was not
sent a copy of the minutes of that meeting at any time.


The Tribunal consider that it is essential that an employer informs the employee of the case
against him and that a disciplinary meeting must be conducted in a manner that enables both
employer and employee to state their cases. These requirements reflect the basic rules of
natural justice which were sadly lacking in Mrs. Brennan‟ disciplinary hearing.


By the time FNHC had got to the appeal hearing, they appear to have abandoned the
Procedures entirely and in fact Mrs Summers-Shaw produced a separate set of guidelines for
the Appeal Panel which were not reflected in the Procedures and were not provided to Mrs.
Brennan or communicated in any form. Indeed Mrs. Brennan did not know they existed until
after the appeal process. One of the new rules introduced was a requirement that the parties be
heard separately, thus denying Mrs. Brennan the opportunity to hear the evidence against her
and to question it. This meant that at no stage had she heard the evidence against her. Further,
the appeals panel were directed not to query the procedures adopted by the disciplinary
process to date.


The Tribunal have noted the decision in West Midlands Co-Operative Society v Tipton 1986
ICR 192, HL, that the employer‟s actions at the appeal stage are relevant to the reasonableness
of the whole dismissal process.


The Tribunal finds it unfortunate that no one involved in either the disciplinary or appeal
process queried Mrs Brennan‟s absence or the existence of the guidelines outside the
Procedures. It appears that at no stage did anyone challenge or even question the process
which is very surprising considering the status and experience of many of the people involved
in it.


The Tribunal heard that FNHC„s justification for not following the Procedures included the
political pressure alleged to have been imposed on Miss Huchet and Jurat Morgan, the
involvement of the police in the alleged data protection law breaches and a wish to act in the
best interests of Mrs. Brennan.

                                               17
The Tribunal accepts that FNHC perceived the contacts received from various politicians in
the Island as political pressure. However none of the contacts involved directly or indirectly
the funding of FNHC and accordingly it is only personal relationships that could be affected
by FNHC‟s course of action. The Tribunal would expect Miss Huchet as the director of an
prominent local organisation with a £7m budget under her control, to be able to withstand
such interference. With regard to the involvement of the police, the Tribunal heard no
evidence that the police wished any information to be withheld from Mrs. Brennan in order
not to hamper their investigation. This was speculation by FNHC. To avoid any difficulties in
this area the Tribunal would have expected the disciplinary and/or Appeal Panel to have taken
a wider view of the situation and considered the potential breaches of the data protection law
by Mrs. Brennan as examples of her incompetency as opposed to conducting an informal
hearing of criminal charges not yet made against her.


Finally, for FNHC to suppose that by changing the process contained in the Procedures
(without consulting Mrs. Brennan) they would expedite the matter and thereby be acting in
Mrs. Brennan‟s best interests, without consulting her on this point, is extremely arrogant.


The Tribunal were very concerned that Mrs. Brennan‟s request for 26 specific documents to be
provided to her and to the Appeal Panel, was ignored and it was decided by FNHC that the list
(only) would be presented to the Appeal Panel for them to decide which was relevant. It is
Mrs. Brennan‟s right to decide which documents are relevant to her appeal and not for the
employer to prescribe upon such issues.


Further the Tribunal is surprised that the disciplinary and appeal processes allowed Mrs
Summers-Shaw to be both investigator of Mrs. Brennan‟s conduct and facilitator of the
manner in which her investigations were presented, as well as being closely involved in the
construction and delivery of the disciplinary and appeal process. The Tribunal does not
consider this to be good practice. Finally the Tribunal wishes to mention its concern that
important documents, such as the minutes of the appeal panel meeting, were presented to it
and Mrs. Brennan only at the Tribunal hearing.


CONCLUSION:


The Tribunal finds that FNHC genuinely believed at the time of dismissing Mrs. Brennan that
it was doing so because of her incompetence and misconduct in the discharge of her duties.


In relation to the issue as to whether that dismissal was fair or unfair, the Tribunal finds as
follows:

                                               18
The Tribunal considers that FNHC over-estimated Mrs. Brennan‟s level of competency. This is
born out by the fact that when Mrs. Brennan became the IGO, FNHC considered appointing
Mr. Egre as a senior employee to her. Also it is clear that Mrs. Brennan did not appreciate the
responsibilities of FNHC under the data protection law, and she seemed unaware of the need
to move her work to the FNHC data protection folders when the OIS system went on line. She
also clearly lacked the motivation to query the situation. On discovering that Mrs. Brennan
had failed to move her work out of HSS and into the FNHC data protection site, FNHC as a
reasonable employer should have held a full enquiry into the situation and its repercussions,
involving Mrs. Brennan at every stage. On hearing the evidence of both parties, it is clear to
the Tribunal that Mrs. Brennan appeared generally ignorant of the extent of her
responsibilities. Whilst FNHC may have considered that her actions taken as a whole
precluded them from offering retraining, and it was not possible to offer another, lesser, role
in the organisation, on consideration of the whole set of circumstances, a reasonable employer
might have considered that her actions were sufficiently serious to warrant dismissal with
notice. If FNHC had operated a fair disciplinary process and appeal procedure all the
information heard by the Tribunal would have come to light and this decision may have been
reached. The Tribunal cannot ignore the conduct of the disciplinary process leading up to
dismissal and the subsequent appeal. Furthermore, natural justice requires that no party
should have a case decided against them on a ground on which they have not had the
opportunity to be heard. The need for natural justice is reflected by a full hearing. This was
denied to Mrs. Brennan. For all of these reasons the Tribunal finds that FNHC did not act
reasonably in treating the reasons given for Mrs. Brennan‟s dismissal as sufficient reason for
summarily dismissing her for gross misconduct. Accordingly, the Tribunal finds that Mrs.
Brennan was unfairly dismissed by FNHC.


THE AWARD.
   1. For Unfair Dismissal


   In a directions hearing of the 15th November 2005, the Deputy Chairman found that the
   period of employment served by Mrs. Brennan under her first temporary contract of
   employment counted towards the period of her employment served under the second
   permanent contract of employment, as in the circumstances the second contract was clearly
   meant to replace the first and there was no break in service. Accordingly Mrs. Brennan was
   employed from 16th August 2004 to 1st August 2005; just under one year.


   Pursuant to the Employment (Awards) (Jersey) Order 2005 in respect of her unfair
   dismissal claim, the Tribunal awards Mrs. Brennan the sum of £1,940.00, being 4 weeks
   pay.

                                              19
   2. Notice pay due.
   Mrs. Brennan‟s contract of 1st March 2005 states that she was subject to a probationary
   period of 6 months, terminable by either side on 1 weeks notice. However as she had been
   continuously employed for more than 26 weeks but under 2 years, she is entitled to receive
   the statutory minimum of 2 weeks notice in accordance with article 56 of the Law.
   Accordingly the Tribunal awards Mrs. Brennan the sum of £970.00 being 2 weeks pay


   3. Holiday pay
   Although no claim was made by Mrs. Brennan in this regard, the 2 weeks notice she is due
   as described above, gives her an extra day‟s holiday. Accordingly the Tribunal awards Mrs.
   Brennan the sum of £97.00 being one days pay.


   4. Bank Holidays & Pension Contribution
   No monies are due to Mrs. Brennan in respect of unpaid bank holiday pay and the
   Tribunal understands that the repayment of Mrs. Brennan‟s pension contributions to her is
   in hand by FNHC.


Issue 2


Was Mrs. Brennan‟s contract of employment breached because the disciplinary process
referred to in her contract of employment was not followed by the employer? Further, is Mrs.
Brennan entitled to bring proceedings for this breach before the Tribunal pursuant to article
86(3) of the Law.


As discussed above, the Procedures formed part of Mrs. Brennan‟s contract. Their status and
the reliance placed upon them was further shown by the fact that in their letter to Mrs.
Brennan of 8th July 2005, FNHC attached a copy of the Procedures and referred to various
points of process directly from them. FNHC‟s letter of 15th July 2005 further referred to the
Procedures being given to Mrs. Brennan and her rights under them. Mrs. Brennan was
therefore entitled to rely on the Procedures as containing her rights and obligations during the
disciplinary and appeal process. As stated above FNHC departed from the Procedures both as
to form and content very early on in the process and did not communicate this fact to Mrs.
Brennan.


By Articles 86(1) and (3) of the Law, proceedings may be brought before the Tribunal in
respect of an individual employment dispute which involves a claim in respect of which a
court in Jersey would under current law have jurisdiction.



                                               20
Accordingly the Tribunal has the jurisdiction to hear claims for breach of a contract of
employment, or any other contract connected with employment. The maximum award which
may be made in respect of any number of claims is £10,000 (article 4 of the Employment
(Awards) (Jersey) Order 2005).


Mrs. Brennan claims that the terms of her contract of employment were breached by the
failure of FNHC to follow the disciplinary and appeal process described in the Procedures.
The Tribunal heard evidence that during the disciplinary and appeal process conducted by
FNHC, Mrs. Brennan had become depressed and extremely stressed. Mrs. Brennan also lost
two weeks wages (her notice) as she was dismissed summarily by FNHC.


There is no need to repeat the facts here and reference should be made to the facts outlined at
the beginning of this judgment and the findings of the Tribunal regarding the reasonableness
of the actions of FNHC in dismissing Mrs Brennan, for information about breaches of the
Procedures. Suffice it to say here that there can be no doubt that FNHC did commit a breach of
the terms of its contract with Mrs. Brennan with regard to the disciplinary process to be
followed.


However the Tribunal finds that it cannot make an Award in this instance for three reasons:


      By Article 86(3)(b), the Tribunal does not have jurisdiction in respect of employment
       disputes which include a claim for damages for personal injuries, and this would
       include the suffering caused to Mrs. Brennan because of the depression and stress
       suffered by her and arising out of the breach of contract,
      Mrs. Brennan‟s claim for notice due to her has been dealt with by the Tribunal in the
       Award made following the findings of unfair dismissal and the Tribunal will not
       allow double recovery to take place. It should be noted that the Tribunal found that a
       reasonable employer in the circumstances would have, after due enquiry, dismissed
       Mrs. Brennan with 2 weeks notice. Mrs. Brennan was dismissed on 1st August 2005,
       some 3 weeks after she was suspended on full pay. It is not unreasonable to suppose
       that FNHC could have conducted an inquiry of Mrs Brennan‟s conduct and held a due
       disciplinary hearing in that time, so Mrs. Brennan is not out of pocket in that respect.
      The unfairness of Mrs. Brennan‟s disciplinary and appeal process have been fully
       explored in full by the Tribunal as set out above. It should be noted that the Tribunal
       finds that Mrs. Brennan was unfairly dismissed because FNHC as her employer failed
       to act reasonably in treating the reason/s for her dismissal as sufficient reason to
       dismiss her. This unreasonableness is manifested by the disastrous disciplinary and
       appeal process implemented by FNHC. Mrs. Brennan has been compensated for this

                                               21
   treatment through an unfair dismissal award. In the event the Tribunal would find it
   duplicitous to make a further award for damages for breach of contract to compensate
   Mrs. Brennan for the same issues, especially as Mrs. Brennan must bear some
   responsibility for the situation in which she found herself.




NOTE:
The Tribunal wishes to draw attention to the existence of Codes of good employment
practice approved by the Employment & Social Security Committee which are available
from JACS or the Employment & Social Security Department free of charge.




                                          22
                                 Jersey Employment Tribunal
Case Number: 1910028/05


Applicant:            Mrs Jennifer Robinson
Respondent:           Department of Education, Sport & Culture of the States of Jersey.


Case Summary:
Unfair Constructive Dismissal: Article 62(1)(c)of the Law, breach of express and implied terms
of contract, repudiatory breach, subsequent repudiation.


Hearing on            19th January 2006
Before:               Mrs. Nicola Santos-Costa, Deputy Chairman
                      Mr Alan Hall, Panel Member
Mr Peter Woodward, Panel Member


Representation:
For Applicant:        Mrs J Robinson was unrepresented.
For Respondent:       Mrs Madeleine Davies, Head of Staff Services,
                       Dept of Education, Sport & Culture.


Witnesses:
For Applicant:        Mrs. Margaret Arthur
For Respondent:       Prof. Edward Sallis
                      Mr Peter Bolam
                      Mr Gordon De Gruchy
The Issue:
It was agreed by the parties that the issue the Tribunal was required to decide upon was
whether Mrs Robinson had been constructively unfairly dismissed from her position as a
mathematics coordinator and lecturer at Highlands College pursuant to article 62(1)(c) of the
Employment (Jersey) Law 2003.


The Facts:
Mrs Robinson was employed by the States of Jersey as a maths teacher on 1st January 1988. On
1st September 1997 Mrs Robinson moved to Highlands College to become a lecturer in
mathematics. From the 1st January 2001 Mrs Robinson became the coordinator for Key Skills
(Application of Numbers) and received a supplementary allowance for these extra
responsibilities. Following her appraisal in June 2004 Mrs Robinson was recommended for
accelerated progression. Only 20 teachers out of a total of 800 teachers were recommended for

                                              23
accelerated progression in 2004. This placed her in the top 3% of the teaching staff employed
by the Department for Education, Sport & Culture (ES&C) at that time. The Tribunal heard
evidence and was referred to tributes from senior ES&C personnel who described Mrs
Robinson as a talented, successful, effective and committed teacher.


The Tribunal heard that in recent years there has been constant and rapid change in education
in Jersey not only to fit the Island‟s own requirements but also to reflect the developments in
education in the United Kingdom. This results in regular curriculum changes to which
teachers and lecturers are expected to respond. The Committee for Education, Sport & Culture
employed external consultants to review the basic skills provision for adults and young
people in the Island.


In 2004 Highlands College decided to reorganize its structure to reflect these changes. The UK
advisers had recommended that key skills be drawn together from across the college as they
overlapped and that there be some reorganization of subjects and faculties, as these were
presently too fragmented. Numeracy, literacy and information and communications
technology constitute key skills. Highlands College has a policy of ensuring that where
appropriate, all students have access to key skills as part of their learning programme.
It was decided to create an Access to Learning Team in the Faculty of Guidance and Support,
to rationalize the provisions of key skills, basic skills, learning support and other essential
skills by the College. Mr Peter Bolam was appointed the Head of the Access to Learning Team,
effective from the 1st September 2004.


It was decided that for the first year, to 1st September 2005, Mr Bolam would be responsible for
making any changes to the key skills curriculum and in the second year, he would deal with
the formation of a new key skills team.


Mr Bolam‟s contract of employment as a permanent member of the lecturing staff was the
same as Mrs Robinson‟s contract. This meant that they were both required (inter alia) to assist
in curriculum development, planning and evaluation of courses and course materials and lead
specialist programmes as required. They were also both required to contribute to team
meetings including course monitoring and course assessment to ensure objectives were met.


Mr Bolam also received a supplementary allowance. The purpose of his extra responsibilities
was „to direct essential key skills staff to ensure that an effective teaching and learning service
is provided…‟. Essential skills include key skills (maths). In addition Mr Bolam was required,
„to research appropriate qualifications and programmes…‟ and „to develop, direct and
maintain appropriate programmes…‟.

                                                24
Mrs Robinson‟s supplementary allowance required her to be responsible for „ the delivery and
assessment of [maths] across the College‟ and „ to act as cross College advisor for [maths], to
disseminate information related to [maths], to evaluate feedback from key skills lecturer‟s‟.
She was also required to „provide advice and support for [maths] lecturers and in cooperation
with the College key specialist team agree standard documentation‟. It is clear that Mr Bolam‟s
and Mrs Robinson‟s responsibilities overlapped. Neither of them knew the exact nature of the
other‟s job profile.


Mr Bolam‟s supplementary allowance was set at level 6, Mrs Robinson‟s allowance was at
level 4. Mr Bolam was clearly her superior. However the College did not tell Mrs Robinson of
this. On the 1st September 2004 Mrs Robinson‟s line manager stayed the same at Jeff Reed, a
lecturer in another faculty. Mr. Bolam‟s line manager was Christine Wilson. There was a vague
discussion of this changing to Mr. Bolam in September 2005 but no certainty was offered. The
actual nature of Mr. Bolam‟s task was also not fully explained to the maths department.
However it became clear by October 2004 that Mr. Bolam was drawing up a review of key
skills in the College (thus affecting the maths department). Mr. Bolam had not yet met the
maths department so Mrs Robinson arranged a meeting which proved congenial although
unsettling for the maths department who were aware that unspecified changes were
underway. It transpired that Mr. Bolam wanted to introduce an Adult Numeracy programme
across the College. This is a UK developed scheme already in existence. Mrs Robinson and her
staff did not think this programme was appropriate for the students at Highlands College. It is
fair to say that she and Mr. Bolam fell out over this scheme. On 26th November 2004 Mrs
Robinson collected information and data from her department as to why she felt this scheme
would not work and presented it to Mr. Bolam; he did not agree with her. At a later meeting
held that day, Mrs Robinson was required to validate the curriculum she had developed over
the previous 8 years (and the results obtained) before Mr. Bolam, Dr Gary Jones (the Deputy
Principal), Mrs B Tostevin (the Examinations Officer), Mrs Gill Varbert and Mrs Jo-Terry
Merchant (the Communications officer). Mrs Robinson had not been warned that she would
be required to validate her work in this manner and gave evidence that she felt attacked and
humiliated especially as she was required to explain herself in front of two colleagues not
particularly relevant (in her opinion) to the meeting. She also felt that her opinions on the
Adult Numeracy Scheme had not been considered. It appeared that Mr. Bolam and Dr Jones
had spent some time together discussing the Adult Numeracy programme in advance of the
meeting. However during December Mrs Robinson told Mr. Bolam she would accept the
Adult Numeracy programme, albeit with some reservations.




                                                25
On the 11th January 2005, Mrs Robinson received an email from Mr. Bolam suggesting some
dates for staff training on „core curriculum and making it vocationally relevant‟. Mrs Robinson
gave evidence that as key skills coordinator (and in effect Head of the Math‟s Department) she
was surprised that this training was being set up without her input or knowledge, as this had
previously been her role, and also humiliated that she was being told to attend a training day
on a subject she had been undertaking for 8 years: teaching mathematics in a vocationally
relevant manner.


Mrs Robinson became aware that the Key Skills Policy was nearing completion and on 1st
February 2005 Mr. Bolam agreed to send her a draft when Dr Jones and his line manager had
seen it. Mrs Robinson asked again on the 11th February but a copy was not forthcoming. It
transpired that copies had been supplied to various people at the College. Mrs Robinson gave
evidence that as Coordinator of Key Skills, she felt marginalized and embarrassed to be
excluded in this manner. Evidence was referred to from Mrs G. Oakes, Head of Faculty
Communication Studies that it would be usual for policy changes to be proposed following
consultation with relevant personnel, for example, the Communications Co-ordinator had
been sent a copy to check data referred to in the report. The Key Skills Policy report was
presented to the curriculum managers meeting on 16th February 2005. Mrs Robinson was not
invited to this meeting. There was general acceptance of the outline proposal without any
input from Mrs Robinson. Her line manager gave evidence at the subsequent grievance
procedure (see below) that in his opinion Mrs Robinson should have been at the curriculum
managers meeting. On the 21st February 2005 Dr Jones presented salient extracts of the Policy
in the Information Bulletin, an email publication which is sent to Highlands College Staff. On
the 24th February 2005, Mr. Bolam emailed a copy of the Policy to Mrs Robinson for the first
time.


On receiving the policy Mrs Robinson expressed her concern about certain points of data in it
in particular that the expression of some data gave an impression that reflected badly on her
department, and it was agreed that she and Mr. Bolam would make a greater effort to meet
face to face and not just communicate by email. Three meetings were arranged over the 4- 5
weeks to go before the end of term. Mrs Robinson was particularly concerned about the new
timetabling plans, the introduction of individual learning plans and her future role. It was
noted that Mr. Bolam did not attend the bulk of the training day held on 10th March 2005 that
he had arranged, although he was expected to teach Numeracy in the next academic year.
However at the end of the session he and Dr Jones told the Math‟s Department that from
September 2005 all Numeracy teaching would have to be delivered in 6 hours a week. This
caused great distress to the math‟s staff, not only because of the cut in hours but it meant that
the department was currently overstaffed. Concern was expressed and the next day Mr. Bolam

                                                26
sent an email to Mrs Robinson confirming that in fact this would not happen. Mrs Robinson‟s
confidence in Mr. Bolam‟s practical understanding of the policy and the manner of its delivery
was eroded.


On the 21st March 2005 Mrs Robinson asked to speak with Mr. Bolam about her
responsibilities from September 2005. She felt she was being marginalized by the new Policy
and her role as a Key Skills Coordinator was disappearing. A meeting was held at which a
preliminary discussion of her future role was held. Mr. Bolam made notes and amendments
to her job profile as attached to her supplementary allowance. The Tribunal heard evidence
that it is ultimately the decision of Prof. E Sallis, on how the supplementary allowances are
altered, not that of staff.


Mrs Robinson gave evidence that she was by now feeling very stressed. Following a visit to
her GP she was diagnosed with depression. Mrs Robinson decided not to take time off work
but to carry on to the end of term to assist her students in the run up to exams and members of
her team. However during the Easter holidays Mrs Robinson did decide that her position at
Highlands College was untenable and she could not face coming back in September 2005. On
11th April 2005 Mrs Robinson resigned, with effect from the 31st August 2005. She gave as her
reason that she could not „face teaching something which I do not believe is right for our
students‟.


Following advice from JACS on 17th May 2005 Mrs Robinson commenced a grievance
procedure against Mr. Bolam. She had this right under her contract of employment.


Her grievances included:
that Mr. Bolam undermined her role as maths coordinator
that Mr. Bolam failed to appreciate the Numeracy Department and their value to the College
that Mr. Bolam denigrated past achievements in Keys Skills
that Mr. Bolam failed to recognize Mrs Robinson‟s expertise and role and sidelined and
undermined her position in the College with regards to the teaching and learning of
mathematics
that Mrs Robinson had been unable to fulfill her job description.


The Grievance procedure was conducted over 23rd & 24th May 2005 and its findings published
on 27th May 2005. By all accounts the procedure was conducted expeditiously and thoroughly
by Prof Sallis and Mr. G De Gruchy. The report found that whilst there was certainly a
professional difference of opinion between Mrs Robinson and Mr. Bolam, there was no
personal animosity between them. The report put the blame in the breakdown of their

                                               27
relationship as a poor handling of communication. It is important to note that in its findings
the report proposed to „ review communications … to ensure that when there is a major
change, a plan is in place to ensure that all interested parties are involved… it will ensure that
all the staff involved are kept in the loop‟.


Mrs Robinson accepted the results of the Grievance Procedure although she felt that too much
emphasis was placed on the degradation of her work and not enough on the undermining of
her position in the College. Whilst she was able to appeal against its findings she instead on
reflection chose to commence proceedings for constructive unfair dismissal and a Form JET 1
was lodged with the Employment Tribunal on 19th October 2005.


Decision


In order to claim constructive unfair dismissal, the employee must establish:
that the employer was in breach of the contract of employment
that the breach was a repudiatory one, entitling the employee to resign
that the employee did resign because of that breach of contract.


Taking each of these points in turn, the Tribunal finds as follows:


1. Breach of Contract


The employer may be in breach of either an express or implied term of the contract.


Mrs Robinson was required by her contract to employment, „to assist in curriculum
development, planning and evaluation of courses…‟. It should be remembered that Mrs
Robinson was also the Co-ordinator of Key Skills. Thus her contribution to the development,
planning and evaluation of courses would have been at a senior level.


The Tribunal finds that Mrs Robinson had not been required to assist in the formulation of
the key skills policy other than in the most perfunctory manner and in fact had been excluded
from the development of the Policy in its final drafting stages.


The first of Mrs Robinson‟s accountabilities in the job profile of the Supplementary
Allowance was to act as „cross College advisor for [maths], to disseminate information related
to [maths] and to evaluate feedback from [maths] lecturers.‟




                                                28
The Tribunal believes that by substantially excluding Mrs Robinson from the drafting of the
Key Skills policy, not including her in the presentation of it to the Curriculum Managers
meeting and excluding her from the meeting at which the decision was taken to reduce the
teaching time of the math‟s department to 6 hours a week, Mrs Robinson was prevented from
fulfilling her role as a cross College advisor for maths.


Furthermore by not including Mrs Robinson, as Head of Department, in plans regarding the
introduction of individual learning plans in maths, Mrs Robinson was prevented from
fulfilling the second specific accountability of her job profile specifically, „to establish and
maintain good practice for the delivery… of [maths].


One of the implied terms of a contract is that of mutual trust and confidence between
employer and employee. Both employer and employee owe each other a duty not to, „without
reasonable and proper cause conduct [themselves] in a way calculated and likely to destroy or
seriously damage the relationship of confidence and trust between employer and employee‟
(Malik & another v BCCI (in liquidation)(1997) ICR 606, HL)


The Tribunal considers that the relationship of trust and confidence between Mrs Robinson
and the College began to be eroded when a Head of Access to Learning was appointed. The
Tribunal could find no evidence that Mrs Robinson was told that her role and line manager
would change on a specific date; this lack of clarity taken in the context of there being
significant changes taking place to the job she did and the products offered by her
department, would have been fundamentally challenging to her position and her faith that her
employer valued her experience and wished to retain her expertise.


Furthermore, Mrs Robinson‟s exclusion from meetings to discuss the key skills policy,
timetabling repercussions, introduction of individual learning plans and content of the
training day, are all hugely undermining of her experience and position. The withholding of
the draft policy from Mrs. Robinson just prior to presenting it to the Curriculum Managers,
whilst still making it available to other staff, is a watershed event. Also, as it became known to
colleagues that she had not been consulted before these decisions were made, her authority
and standing in the College would have been affected. Mrs Robinson had a right to expect her
employer to consult with her before roles of responsibility were taken away from her. These
examples show a lack of sensitivity and understanding of her position, and, frankly, a lack of
courtesy and respect of her experience. Mrs Robinson would have been aware of a profound
reduction in the nature, scope and responsibility of her duties without the reason for it being
communicated to her and this would be expected to erode Mrs Robinson‟s confidence and
trust in her employer.

                                                 29
The Tribunal believes that the consultation process over Key Skills Policy faltered and then
failed. The Tribunal heard evidence from Mrs Robinson that she would typically instigate
discussion, not Mr. Bolam. It also heard an admission from Mr. Bolam that he could have
conducted the consultation process better. The Tribunal would suggest that one to one
consultation is appropriate when senior employees are going to be affected by major changes.
The Tribunal finds that Mr. Bolam‟s behaviour would have confirmed Mrs Robinsons‟
suspicions that she was being marginalized and her standing as a senior lecturer with a long
and prestigious professional record was being ignored.


The Tribunal also finds that situations such as the retraction of the timetabling decision (by all
accounts a bombshell to the maths department), the very next day, build up a sense of
apprehension in management style. This is also borne out by the conduct of the meeting held
shortly afterwards, at which Mrs Robinson‟s responsibilities and job description were
discussed and amended by someone who was a colleague and not her line manager. It is the
opinion of the Tribunal that this meeting should have been delayed to September 2005, when
discussion of these matters was scheduled to take place, or occurred in the presence of Mrs
Robinson‟s line manager or a HR representative. Mr. Bolam chose to act as her boss and apart
from amending many parts of her contract, he also referred to others still require „tweaking‟,
thus creating still further uncertainty in the future.


It should be noted that the Tribunal does not want to vilify Mr. Bolam in this judgment.
Although it is impossible to ignore his role as designer of the Key Skills Policy, the Tribunal
is aware that Mr. Bolam was only trying to do his job. Many of the difficulties which arose in
Mrs Robinson‟s and Mr. Bolam‟s working relationship could have been avoided if the
inevitable clash of their roles had been anticipated by the College management and steps
taken to ensure that communication between these two staff members remained open during
this major change.


2. A repudiatory breach of contract


The breach of contract must be sufficiently serious to entitle the employee to resign.


The Tribunal finds that the meeting at which Mrs Robinson‟s contract was discussed, referred
to above, would be extremely worrying to Mrs Robinson, causing her to further doubt her
value to the College and role in it. The conduct of this meeting, taken against the background
of general marginalization of her role as key skills co-ordinator over the previous 7 months,
constituted the final destruction of her faith in her employer to look after her best interests.



                                                 30
3. Mrs Robinson resigned because of that breach of contract.


In Mrs Robinson‟s letter of resignation to Prof Sallis she stated that she was resigning because
she did not want to teach the new Numeracy programme. Mrs Robinson‟s lack of belief in the
new programme is a separate issue to the implementation of that programme, which is not
mentioned in the letter.


However it is clear to the Tribunal from evidence presented to it, that Mrs Robinson reflected
on the reasons for her resignation after the event and began to realise that it was not the
product itself that had caused her so much anguish but the manner in which it had been
introduced and the way in which she had been treated. It is the opinion of the Tribunal, based
on evidence heard that given Mrs Robinson‟s personality and her state of mind at the time of
resigning that it would be unreasonable to expect Mrs Robinson to describe the various issues
that formed part of her decision to resign, in her letter of resignation. Indeed to do so would
have left a different impression to the one she had portrayed in her work over the previous 8
years and she would have perceived that to be of no benefit to her reputation in the long run.
It is noted that her letter of resignation is dated before the introduction of the Employment
Law.
In her application for a Grievance Procedure, Mrs Robinson cites 9 areas of grievance and 6 of
these concern the manner of the introduction of the new Key Skills Policy. The grievance was
lodged approximately 5 weeks after her letter of resignation was accepted, which is not an
undue amount of time to reflect and collate the large amount of information required to
support each allegation of grievance. Further the Tribunal finds that the Grievance Procedure
was concluded by the College in a too narrow fashion and does not take into account the
broader issues which lead to Mrs Robinson‟s resignation. The report also does not seem to
have taken into account that as Mrs Robinson was at the top of her profession with only 3
years to work until retirement, her resignation would be an extremely serious step for her to
take, which indicates that there must have been broader issues to be considered with these
grievances. Also the Grievance findings, do not explore the changes to her role profile, which
was a significant issue to Mrs Robinson. The report only makes a recommendation that in
future „all interested parties … are kept in the loop‟, thereby tacitly acknowledging that she
was left out of it.


The Employer pointed out that Mrs Robinson had not appealed against the decision of the
Grievance Procedure and seemed content with it. This does not prejudice Mrs Robinson‟s
case; as she had already resigned from her post, she had no reason to exhaust the grievance
procedure and in fact had pointed out in the letter setting out her grievances that she may
pursue a constructive dismissal claim.

                                                31
Conclusion
The Tribunal finds that:


The Department of Education, Sport & Culture had breached both express and implied terms
of its contract of employment with Mrs Jennifer Robinson during the introduction of the Keys
Skills Policy.


The varied and repeated breaches of contract over a 7 month period allowed a situation to
develop where Mrs Robinson‟s experience was not respected and her status and role in the
College were seriously devalued to the extent that she was forced to resign.


Mrs Robinson resigned because of the breaches of contract: the difference of opinion in the
new maths policy was a factor but not the overwhelming reason leading to her decision to
resign.


Accordingly the Tribunal finds that Mrs Robinson has been unfairly constructively dismissed
and pursuant to the Employment (Awards) (Jersey) Order 2005 awards her the sum of
£22,718.02 being 26 weeks pay by way of compensation.




                                               32
                                     Jersey Employment Tribunal
Case Number:             1311049/05


Applicant:               Stephen Paul Hammond
Respondent:              J&T Carré Brothers Limited


Case Summary:            Unfair dismissal; dismissal due to redundancy.


Hearing on:              Thursday 9 February 2006


Before:                  Mr David Le Quesne, Chairman
                         Mrs Mary Curtis, Panel Member
                         Mr Alan Hall, Panel Member
Representation:
For Applicant:           Mr Hammond represented himself
For Respondent:          Mr Toni Carre represented himself


Witnesses:
For Applicant:           Mr Hammond
For Respondent:          Mr Carré.


The Issue.
1         The complaint by Mr Hammond was that he had been unfairly dismissed. Mr Carré for
the employer said that Mr Hammond had not been dismissed.




The Facts.


2         Mr Hammond had been employed since September 2001 as the supervisor in the Carré
scaffolding business. The number of staff supervised by Mr Hammond fluctuated between
around 6 and 9 scaffolders; the normal scaffolding gang consisted of 3 people.


3         Last summer, Mr Carré realised that his business was in grave financial difficulties,
partly due to the change in employment law, which meant that he had to pay staff for bank
holidays. He therefore told the employees, apart from Mr Hammond, that he would have to
reduce their daily pay by £5.00. By 25th August, the firm was left with only one team of
scaffolders, the others having gone to other jobs. Mr Hammond agreed to remain and take a
substantial reduction in salary

                                                 33
4         On 25th August 2005, Mr Carré gave Mr Hammond what amounted to four weeks
notice. What he in fact said was that Mr Hammond‟s job would come to an end in four weeks
unless he, Mr Hammond, managed to find another gang of scaffolders to work for the firm.


5         It is not satisfactory for an employee to be given a form of conditional dismissal; nor is
it satisfactory for a dismissal to be oral and not in writing. We are satisfied that what
happened in this case was that Mr Carré dismissed Mr Hammond on 25th August 2005.


6         We are also satisfied that this was not an unfair dismissal. Mr Carré told us, and we
believe, that he had not drawn an income from the business since December 2004 due to lack
of profits, and that he had to reduce the wages he paid because of the introduction of paid
bank holidays and of the financial difficulties of the firm. If the firm was to continue, it had to
reduce its wage bill. Mr Carré told us that, since last summer, his firm has continued to
operate, but with him running the business, including doing the work formerly done by Mr
Hammond, and with one scaffolding gang consisting of his brother and two others. Mr Carré
stated that he had told Mr Hammond repeatedly about the financial difficulties of the
company.
Conclusion


7         This is a genuine redundancy, due to a reduction in the size of the employer and a
consequent reduction in the work to be done by a supervisor. With only one gang, there was
not enough work for Mr Hammond, so Mr Hammond‟s dismissal was justified as a
redundancy.


8         Mr Hammond told us that he had been paid what was due to him, so we make no
orders.




                                                  34
                                    Jersey Employment Tribunal
Case Number:              0512058/05


Applicant:                Mr Tony Jackson
Respondent:               Group 4 Securicor


Case Summary:             Applications under articles 90(2) and (3) of the Law for a restricted
                          reporting order; application for a costs award to be reserved to the
                          future; unfair dismissal: gross misconduct of employee.


Hearing held on 13th February 2006
Before:                   Mrs Nicola Santos-Costa, Deputy Chairman
                          Mrs Mary Curtis, Tribunal Member
                          Mr Paddy Kirwan, Tribunal Member


Representation:
For Applicant:            Mr Jackson represented himself
For Respondent:           Mrs L Edwards, Le Gallais & Luce


Witnesses:
For Respondent:           Mr Adrian Milner, Station Manager
                          Mrs Helen Skrzypczak
The Issues:
         Was Mr Jackson unfairly dismissed pursuant to article 64 of the Employment (Jersey)
          Law 2003. („the Law‟)


         Does Mr Jackson have an outstanding claim for holiday pay due to him pursuant to
          article 86 of the Law.


Preliminary Applications:
Miss Edwards made two preliminary applications as follows:


1. That the Tribunal make a restricted reporting order of this case pursuant to Articles 90(2)(b)
and (c) respectively on the basis that the nature of the employee‟s comment and the subject of
his dismissal, was delicate in its nature and a public hearing would cause “severe damage to
the respondent‟s business”.




                                                 35
The Tribunal found that Article 90 (2) (b) does not apply to this case: Miss Edwards did not
show that any confidential information was likely to be heard in evidence.


The Tribunal also found that Article 90(2) (c) does not apply in this case. Miss Edwards had
failed to show that the disclosure of information in this hearing was likely to cause substantial
injury to the Respondent. If an injury was likely to be caused to reputation it would be to that
of the Harbours Department and/or Condor ferries, as the Harbours Department is responsible
for the security of harbour users and Condor Ferries gave the instruction to turn off the
security screening equipment in order to hasten the embarkation of its passengers. In fact to
some extent Group 4 Securicor (G4S) had its hands tied as at that time they had to follow the
instructions of their customers, here Condor Ferries. The Tribunal accepts that this situation
has now changed. Furthermore, G4S dealt with any potential damage to their reputation by
dismissing the employee who had made the inappropriate comment, which they felt was a
reasonable response at that time. The Tribunal referred to the findings of the Jersey
Employment Tribunal in Kosmider v First Class Catering Limited 2006, para 3, which states
that, “As in any civil proceedings, there is a presumption that what is said in court is for
public consumption, and there must be a strong reason, going beyond embarrassment or
humiliation, to overcome that presumption”. That strong reason was not found in this case.
2.   That the Respondent reserve the right to apply for costs to be awarded against the
employee, if the case does not succeed, at some point in the future when the Tribunal are able
to make awards of costs in cases heard by them.


This application was strongly rejected by the Tribunal. At this time the Tribunal is a free
service without the power to award costs in order to encourage persons, both employers and
employees, to bring cases under the Law. The Tribunal has received no indication that this
situation will change. There is no need for a party to be represented; Tribunal members are
trained and are able to deal with persons appearing in person: a lack of representation will
have no effect on the outcome of a case. The Tribunal objected strongly to the intimidating
tone of this type of application especially as it was introduced at the very beginning of the
hearing. If a party is convinced that a case is time wasting an application should be made to
the Chairman at an early stage of the process for the case to be struck out on the basis that it is
vexatious or frivolous. An application to reserve costs for some uncertain date in the future is
not the way to deal with such concerns.


The Facts
Mr. Jackson was employed as a Security Agent by Group 4 Securicor from 19th July 2004 to 25th
October 2005, when he was summarily dismissed for gross misconduct.



                                                36
Mr. Jackson was based at the Elizabeth Harbour ferry terminal as a Security Agent. He was
employed to perform security duties as required by his employer. These included manning
the electronic security archway screens and conducting security searches as necessary. On the
20th October 2005, Mr. Jackson       was working on a shift processing about 150 passengers
through Elizabeth Terminal and on to a Condor ferry. Before the end of the embarkation, a
Condor representative asked the supervisor of the shift to close down the security checks as
they needed to get passengers through more quickly. As Mr. Jackson was turning off the
archway metal detector one of the passengers said words agreed to be to the effect of “Yes,
let‟s forget about this security rubbish.” It was agreed by both parties that Mr. Jackson made a
reply such as, “Yes, let‟s forget about security, if the boat blows up, who cares!”


Mr. Jackson gave evidence that it had been a difficult shift (it was very hot and there were a lot
of passengers to deal with) and he felt that the passenger‟s remark was sarcastic and aimed at
him. He decided to reply in a sarcastic fashion. He had never replied before to any remarks
from passengers. When all the passengers had gone through his supervisor, Helen Skrzypcak
reprimanded him for speaking in such a manner whilst on duty. She gave evidence that while
Security Agents are on duty they must not speak their minds to members of the public and
should certainly never make a statement such as this. Mrs Skrzypcak did not hear the
statement made to Mr. Jackson and did not have the impression that any passenger had
overheard Mr. Jackson‟s remark. Mrs Skrzypcak gave evidence that if she had thought that a
member of the public had heard Mr. Jackson‟s remark she would have reported him to Mr.
Milner, her Station Manager. Mrs Skrzypcak stated that is was out of character for Mr. Jackson
to act in this manner but it had been a long day. Furthermore, she pointed out that Mr. Jackson
apologized immediately and was aware that his comment was wrong.


On Monday 24th October 2005, a Port Operations Officer for Jersey Harbours forwarded to
Denis Laisney, the G4S Customer Services manager, a complaint received from a member of
the public who was about to go through the security archway being manned by Mr. Jackson on
20th October 2005. This complainant remained anonymous to G4S and the Tribunal but had
overheard the remark made by Mr. Jackson described above and was alarmed by it. The
complainant said that he and others in the vicinity felt it to be an inappropriate comment
especially in the current climate.


This complaint was passed by Mr. Laisney to Mr. Adrian Milner, the Station Manager. Mr.
Milner felt that the complaint was serious and immediately suspended Mr. Jackson on full
pay whilst an investigation was carried out. Mr. Milner immediately tasked Mr. Laisney to
investigate the complaint. Mr. Laisney did this by questioning the three other security agents
on duty with Mr. Jackson at that time and Mrs Skrzypcak, his supervisor. All four people

                                                37
confirmed that Mr. Jackson had said words to the effect described above, and Mr. Laisney
provided a verbal report of his findings to Mr. Milner.


On the 25th October 2005, a disciplinary interview was conducted by Mr. Milner with Mr.
Jackson. Mr. Laisney was in attendance. At no time during the interview did Mr. Jackson deny
that he had spoken those words and was co-operative and apologetic throughout. The
Tribunal heard evidence from Mr. Jackson that in view of his good work record (there were no
recorded verbal or written warnings) he thought he would be severely reprimanded for his
admittedly ill advised and immature behaviour, and be given, at worst, a final written
warning. Instead Mr. Milner viewed the conduct as gross misconduct and at the conclusion of
the interview, gave Mr. Jackson the opportunity to either resign or be dismissed without
notice. Mr. Jackson thought he would receive his notice pay if he resigned and when it was
pointed out to him that this was not the case, was in fact dismissed summarily by G4S.
Evidence was heard from Mr. Milner that he had explained to Mr. Jackson during the
interview the seriousness of the situation and the significance of summary dismissal. The
opportunity to resign without notice was offered as an alternative in order to preserve the
integrity of Mr. Jacksons work record, as Mr Milner appreciated that a summary dismissal can
hinder future work opportunities.


Mr. Jackson availed himself of the right to appeal against Mr. Milner‟s decision and did so by
letter to Tina Disney, the Southern General manager of G4S Security Services. Ms Disney
having considered Mr. Milner‟s disciplinary interview notes dismissed Mr. Jackson‟s appeal
on 28th November 2005. Mr. Jackson decided to apply to the Employment Tribunal instead of
pursuing a second appeal.


DECISIONS
Issue 1


In respect of the claim by Mr. Jackson that he was unfairly dismissed for gross misconduct by
G4S, the Tribunal finds as follows:


Article 64 of the Law requires that when determining whether a dismissal is fair, the employer
must show the reason for that dismissal and the fact that it either falls within article 64 (2) (and
is therefore a potentially fair reason) or there is some other substantial reason of a kind to
justify the dismissal of an employee holding the position which the employee held.




                                                38
In British Home Stores Limited v Burchall 1980 ICR 303, which was applied in Brennan v
FNHC (2006), it was decided that the employer when making the decision to dismiss an
employee for misconduct must show that:
       (i)     He believed the employee was guilty of misconduct, and
       (ii)    He had in his own mind reasonable grounds to sustain that belief, and
       (iii)   At the time he formed the belief he had carried out as much investigation into
               that matter as was reasonable in the circumstances.
The Tribunal finds that G4S had satisfied all three of these criteria when dismissing Mr.
Jackson, and therefore Mr. Jackson was dismissed for a potentially fair reason.


The next stage in this case is for the Tribunal to consider whether the conduct is such that it
amounts to gross misconduct. This is conduct which is so serious that it justifies instant
dismissal without notice.


Mr. Jackson was employed as a security agent by G4S for its customer, Jersey Harbours. Mr.
Jackson‟s job when in uniform was to reassure and comfort passengers and harbour users that
security measures were in force for their protection. By stating aloud within earshot of
passengers an opinion that “Let‟s forget about security, if the boat blows up, who cares”, he
broke the bond of trust that his employer put in him by allowing him to represent their
reputation of the provision of security and safety of travellers. This statement only had to be
heard by one passenger, who if alarmed, for that reputation and relationship to be damaged.
Accordingly, the Tribunal finds that Mr. Jackson did commit an act of gross misconduct in the
course of his duties as a security agent by making the statement referred to.


The Tribunal are required to assess whether the employer‟s response of summary dismissal to
the gross misconduct was reasonable in the circumstances. The Tribunal finds that it was.
G4S‟s business and reputation is based on the comfort and reassurance of passengers. It‟s
employees are expected to perform their duties with diligence and must not make
inflammatory comments during the course of their work. It should be remembered that the
bombings in London had only occurred some three months earlier. Mr. Jackson stepped
outside this boundary when replying to the heated comment of a passenger especially by
referring to the security of the vessel in which they were travelling. Mr. Milner felt that he
could not guarantee that this would not happen again and had no alternative but to dismiss
Mr. Jackson immediately. After careful consideration of the circumstances of G4S‟s business,
the Tribunal do not find this strict response to the situation to be unreasonable.


The Tribunal must also consider whether the employer acted reasonably when dismissing the
employee – i.e. – the disciplinary process must be fair. Mr. Milner followed the established

                                               39
procedure. This appears to be fair and the Tribunal can find no fault with it sufficient to
undermine the fairness of Mr. Jackson‟s dismissal. However the Tribunal would like to make
the following four points for future reference:
         It would have been desirable if in the circumstances, Mr. Jackson had been given more
          time to consider whether to resign or be dismissed and the implications of his
          decision.
         Mr. Milner should have interviewed the witnesses to Mr. Jackson‟s statement himself
          before conducting the disciplinary process. Mr. Milner relied too heavily on the
          evidence of Mr Laisney who had interviewed the witnesses. This is hearsay evidence
          and whilst it was not prejudicial to Mr. Jackson‟s case because he did not dispute what
          was said by the witnesses (relayed through Mr. Laisney), new facts would have come
          to light. For example we heard from Mrs Skrzypcak that in fact only about three
          passengers were left to be processed when the security archway was switched off, not
          fifty as reported in the original complaint to Jersey Harbours. This does paint a
          different picture, although it does not detract from the fact that Mr. Jackson made his
          comment to a passenger. Furthermore, Mr. Milner was dealing with a situation where a
          man was likely to lose his job, and taking the time to speak to witnesses himself
          would have been reflective of the gravity of the situation.
         If Mr. Milner had conducted interviews with the witnesses, these reports could have
          been sent to Ms Disney for consideration on appeal thus providing her with all the
          available information which is the most desirable situation.
         Mr. Milner should have made some enquiries as to the identity of the anonymous
          complainant to confirm that the complaint was not malicious or similarly motivated in
          its intent.


Conclusion: Mr. Jackson is not found to have been unfairly dismissed. The decision of the
Tribunal was unanimous in this case.


Issue 2
Does Mr. Jackson have an outstanding claim for holiday pay due to him pursuant to article 86
of the Law?


Mr. Jackson was presented with a calculation of the hours he had worked between 1st October
2005 (the commencement of the leave year for employees) and the 25th October 2005, the date
he was dismissed. From these hours the amount of holiday he was due was calculated,
rounded up to 10 hours and representing £82.40. Mr. Jackson agreed that in fact this sum had
been paid to him with his final salary and accordingly the Tribunal were not required to make
a finding in this matter.

                                                  40
                                  Jersey Employment Tribunal

Case Number:           1710034/05

Employee:              Mr J G Haertwig
Employer:              Deerglen (Jersey) Ltd

Date of Hearing:       Monday 23rd January 2006

Before:                David Le Quesne, Chairman.
                       Mary Curtis, Panel Member
                       Tim Langlois, Panel Member

Complainant:           Jorg-Gustav Haertwig (who represented himself).
Respondent:            Deerglen (Jersey) Limited (represented by Mr Huw Thomas).

Witnesses:             Mr Haertwig & Miss Angelika Doehnert.
                       Miss Lorraine Kelly & Mr Louis Parr.

Issues:
a)      Time within which claim for breach of contract must be submitted.
b)      Claim by Mr Haertwig for repayment of social security contributions wrongly
        deducted.
c)      Claim by Mr Haertwig for payment of bonus.
d)      Whether money advanced by Deerglen to Mr Haertwig was a loan of advance payment
        of bonus.

Mr Haertwig is an architect. During the time in question he was working for Deerglen mainly
on the rebuilding of that part of the Hotel de France which was destroyed by fire a few years
ago. Deerglen is in the business of building, designing and managing projects. Mr Haertwig
makes claims for return of part of his salary wrongly deducted for payment of social security
payments and for payment of a bonus.

Time for submitting the claim

Mr Thomas made a preliminary submission that the claim form was submitted out of time,
and therefore the claim should not be heard. He referred us to articles 76, 80 and 86 of the law.
Article 86 describes the jurisdiction of this Tribunal, but does not describe time limits. Article
80 does not refer to time limits. Article 76 comes within Part 7 of the law, which is entitled
“Unfair Dismissal” and the heading immediately above article 76 is “Remedies for Unfair
Dismissal”. A complaint under article 76 must be made within 8 weeks.

Mr Thomas‟ submission was that the time of 8 weeks referred to in article 76 applies generally.
We do not agree, for two reasons. First, the context and heading of the article make it clear that
it applies only to unfair dismissal. Second, the law specifies the time within which various
types of complaints must be made; most must be made within 8 weeks, but we note that a
complaint under article 24, in respect of a failure to allow an employee access to employment
records, must be made within 13 weeks. These specific time limits make it impossible to
conclude that there is an overall time limit.

Given that the law does not provide a time limit within which all complaints must be made,
we may have to decide one day what is the time limit for a complaint of breach of contract
under article 86. For present purposes, we hold that there is not an 8 week time limit for
complaints like those before us, which are for breach of contract.

Social security

                                                41
Mr Haertwig claims that social security contributions were wrongly deducted from his salary.
Deerglen agrees that, not realising that there was an earnings cap on contributions, it wrongly
deducted 6% social security contributions from Mr Haertwig‟s salary above that cap, and
produced figures showing that for the period from July 2003 to the end of the employment
£2,423.46 should be repaid to Mr Haertwig. Mr Haertwig agreed this figure for that period, and
we accordingly order Deerglen to pay that amount to him.

Mr Haertwig also claimed that the same applied to the period up to July 2003; he told us that
he remembers that similar deductions were made during that time, but he was unable to
provide any documentary proof. On the other hand, both Miss Lorraine Kelly and Mr Louis
Parr, directors of Deerglen, said that Mr Haertwig was not during that time an employee, but
was a self employed consultant, and Miss Kelly was sure that no deductions from his salary
were made.

It was for Mr Haertwig to prove to us that the deductions were made, and he failed to do so.
Miss Kelly provided to us the invoices which she prepared on behalf of Mr Haertwig, from
Deerglen‟s accounting records, and was sure that the amounts shown on the invoices was paid
in full; although the invoices did not prove the point, they were some circumstantial
supporting evidence, and we found her evidence credible.

We therefore are not satisfied that Deerglen made deductions for social security contributions
from what it paid to Mr Haertwig up to July 2003.
Bonus

The typed contract of employment contains the following words hand written by Mr Parr after
the contract was signed by the parties: “Bonus £4 for every hour worked”. Were it not for the
evidence of Mr Haertwig which we describe below, we would have found that he was
unconditionally entitled to that payment. However, Mr Parr and Miss Kelly said that there
were conditions attached to the bonus, the relevant one of which was that Mr Haertwig would
remain on the project until its conclusion. Mr Haertwig agreed that this was a condition.
We are reluctant to incorporate into written terms of employment an unwritten term, but
where both parties agree upon an unwritten term, as in this case, it is right to treat that term as
part of the contract. In our judgement, the bonus was only payable to Mr Haertwig if he
remained on the project until its end.

Mr Haertwig said that he did remain on the project until its end, but we do not accept that.
What he said was that the work had not finished, but when he left Deerglen‟s employment
that part of the hotel, or at least parts of it, were open for use. That is not the same as the
project being finished, and it was clear to us that it had not finished when the employment
came to an end.

Mr Haertwig‟s claim for payment of the bonus therefore fails.

Advance by Deerglen to Mr Haertwig

Mr Haertwig made an arrangement with Mr Parr for Deerglen to pay the net sum of £9,000 to
Mr Haertwig‟s bank in Germany, to pay a debt or obligation of Mr Haertwig. It was agreed
that this was done as a kindness by Mr Parr. Mr Haertwig said to us that this was agreed with
Deerglen to be an advance payment of the bonus to which we have referred above. Mr Parr
said that it was a loan.
Immediately after the advance was made, Deerglen started deducting £300 per week from Mr
Haertwig‟s salary. Mr Haertwig said that he objected, but his objections were ignored. Of the
£9,000, £4,800 has been repaid in this manner. We asked Mr Parr if there was any written
demand for repayment, which would have been evidence of a loan, but he told us that he did
not expect payment of the remainder.


                                                42
We find that this was a loan, not an advance payment of the bonus. Both parties agreed that
the condition to the bonus was that Mr Haertwig would remain at work on the project until
the end. Further, Mr Parr said that, were it not for the necessity to retain Mr Haertwig on the
project, he would have sacked him sometime before he left because of the way he spoke to his
partner, Miss Kelly, who had been reduced to tears. In these circumstances, we find it
unbelievable that (a) Deerglen would have agreed to pay in advance a substantial part of the
bonus, and (b) it would have then reclaimed such advance payment by deductions from salary.

Summary

     1         Mr Haertwig‟s claim was submitted in time.
     2         Mr Haertwig is entitled to repayment of £2,423.36 in respect of social security
               deductions which should not have occurred, but no more.
     3         Mr Haertwig is not entitled to payment of the bonus.
     4         The advance of £9,000.00 was a loan, not an advance against bonus.




                                               43
                                  Jersey Employment Tribunal
Case Number:            3110042/05


Applicant:              Olga Jolanta Kosmider
Respondent:             First Class Catering Limited


Case Summary:           Application under article 90 of the Law for a restricted reporting order:
                        Constructive dismissal


Hearing on              26th January and 1st and 2nd February 2006

Before:                 David Le Quesne (chairman)
                        Kelly Flageul
                        Timothy Langlois
Representation:
For Applicant:          Miss Kosmider represented herself
For Respondent:         Mr Guy Le Sueur
Interpreter             Mrs Helen Skrzypczak (acting on behalf of the Tribunal)

Witnesses:
For Applicant:          Aneta Traczyk.
                        Agnieszka Lochocka.
                        Paolo Cunha.
For Respondent:         Matthew Wainwright, director.
                        Maria Ferreira
                        John Downing.
                        Helen Le Marquand
                        Graham Best


Introduction
1         Miss Kosmider was employed as a waitress at St Helier Yacht Club. Her employer was
First Class Catering Limited, which we understand provided the catering for the yacht club.
Her employment started on 6th September 2004 and ended on or around 10th September 2005.
Miss Kosmider complained of constructive unfair dismissal.


Restricted reporting order
2         Mr Le Sueur applied for a restricted reporting order so that Mr Wainwright would not
be identified. Both general principles and article 90 of the Law require the Tribunal to sit in
public; this implies that what is said before the Tribunal is said in public and therefore liable

                                                 44
to be published. That article provides for the Tribunal to sit in private in certain circumstances
which do not apply here. By sub paragraph (3), the Tribunal may make a restricted reporting
order “in any case which involves allegations of sexual misconduct”, which order would
prohibit the publication of identifying material. In this case, there were allegations of sexual
misconduct.
       The application was founded upon the harm and embarrassment which would be
caused primarily to Mr Wainwright‟s children, who are at school in Jersey, by the publication
of the allegations of sexual misconduct. It was said, and we accept, that they and other
children would read or hear reports in the media, and inevitably Mr Wainwright‟s children
would be teased. Miss Kosmider did not want a restricted reporting order.


3      We decided not to make a restricted reporting order. As in any civil proceedings, there
is a presumption that what is said in court is for public consumption, and there must be a
strong reason, going beyond embarrassment or humiliation, to overcome that presumption.
We did not think that the embarrassment to the family and teasing of the children, particularly
where the allegations, as here, are at the milder end of the scale, amounted to a strong reason.


Unfair dismissal
4      Miss Kosmider‟s complaint form shows that she complains of constructive unfair
dismissal. The written details of her complaint, and her evidence before us, show three strands
of complaint:


Issue A - Bullying and humiliating behaviour by Mr Wainwright;
Issue B - Physical touching and other behaviour of a sexual nature;
Issue C - Oppressive behaviour by another employee, Maria Ferreira.


5      We do not need to make any finding on issue C, which is the allegation of oppressive
behaviour by Maria Ferreira, because Miss Kosmider made it very clear during her evidence
that, following a meeting between her and Maria Ferreira and Mr Wainwright, her working
relationship with Maria Ferreira improved to the extent that Miss Kosmider was content
working with her; she did not leave because of Maria Ferreira.


6      The allegations under issue B, physical touching and other behaviour of a sexual
nature, have taken much of the time at the hearing, yet again, it seems to us that we are not
required to make any findings on this issue. The reason is that Miss Kosmider gave evidence
that she had put to one side these matters; she was prepared to put them out of her mind and
continue to work with Mr Wainwright; she hoped that he would not repeat the actions which
she alleges and that they would be able to continue to work together amicably. What went

                                                45
wrong, according to Miss Kosmider was that Mr Wainsright‟s bullying and humiliating
behaviour became worse, to the point that she no longer could stand it.
       We cannot treat the behaviour under issue B as having played a part in Miss
Kosmider‟s decision to leave when it is her own case that she would have continued to work
with Mr Wainwright had he ceased bullying and humiliating her, and that it was the
continued bullying and humiliation which caused her to leave.


7      Given the amount of time devoted during the hearing to issues B and C, we have given
anxious thought to the question of whether it is right to treat Miss Kosmider‟s complaints as
being three separate complaints; we considered treating them as one global complaint about
the behaviour by the employer. We cannot do this because this is not the way Miss Kosmider
presented her case. This is not a narrow legal point; we are vigilant to assist parties who
appear before us without legal representation, and if we had thought that Miss Kosmider had
been in danger of presenting her case in a manner which did not really represent the wrong of
which she complained, we would have put her on the right track.
       On issue C, Miss Kosmider made it clear on many occasions during the evidence, and
again during her final speech, and she had overcome her problem with Maria Ferreira. We
cannot go behind that position.
       On issue B, we have no doubt that Miss Kosmider had very strong feelings about the
physical contact she alleged; she said about the occasion when, according to her, Mr
Wainwright kissed her, that she found it disgusting. But, she stated that she was prepared to,
in effect, forget those incidents. Her words were “I was able to forget about the incidents and
carry on with my work; I hoped he would do the same.” Further, she did nothing about them
at the time. Therefore, even if we had found that those incidents occurred, we would not have
been able to find that they were the reason, or a substantial part of the reason, for Miss
Kosmider leaving.
       We make it clear that, for the reason we have given, we have not made any finding as
to whether or not any of these incidents occurred.


8      We now turn to issue A, the allegations of bullying and humiliating treatment by Mr
Wainwright of Miss Kosmider. We first have to decide whether or not the allegations are
proved. If we decide that they are, as Mr Le Sueur rightly submitted, there are separate stages
to the consideration of constructive unfair dismissal.
       First, we have to decide if the behaviour amounted to a breach of contract by the
employer. The question is whether the behaviour of the employer was in breach of the
implied terms of the contract of employment.




                                               46
         Second, if we find that there was a breach of contract, we have to decide if it was
serious enough to amount to the employer repudiating the contract. Was it a „fundamental‟
breach?
         Third, if it was such a serious breach, did Miss Kosmider leave because of that breach?
         Fourth, was the dismissal unfair?


The behaviour we have to examine
9        In view of what we already have said, we are disregarding for this purpose issues B
and C.


10       Most of Miss Kosmider‟s allegations were supported by her witnesses who worked
with her and were her friends, whilst most were flatly denied by Mr Wainwright. Mr Le Sueur
argued that the circumstances, such as the facts that the witnesses‟ statements of evidence were
dictated to and written by Miss Kosmider, and that their wording sometimes was remarkably
similar to hers, suggest that their evidence was unreliable. We have considered this carefully,
but we do not believe that the majority of the instances related to us by Miss Kosmider and
one or more of her witnesses were concocted.
         Against this background, there are two incidents in respect of which we have
corroboration from a witness, Mr Downing, whom we believe was telling the truth, not least
because he still works with and for Mr Wainwright. The importance for us is that our belief
that these two incidents occurred gives credibility generally to what Miss Kosmider and her
witnesses told us.


11       The first instance was admitted by Mr Wainwright; it occurred in the kitchen, when he
said to his assistant, who was hugging Miss Kosmider “leave that fucking waitress alone”.
         The second was really several incidents. Miss Kosmider told us that Mr Wainwright
made rude remarks about her being Polish, that he hated the Poles, and about Poles in general.
The remarks were similar in strength to that referred to above. She also said that he made such
remarks about the Portuguese. She complained that such remarks were racist. Mr Downing
said that the complaints about remarks being racist became a joke in the kitchen, and we find
that this supports Miss Kosmider‟s evidence that such remarks were made, and that she
complained about them.


12       Miss Kosmider told us that, after she returned to Jersey from her friend‟s wedding, Mr
Wainwright made up a song about her being a bridesmaid but not a bride. She asked him why
he was singing this, and he said he was singing the truth, she was aged 25, single, with no
friends and no family We accept Miss Kosmider‟s evidence on this.



                                                47
13       Miss Kosmider described to us several occasions on which Mr Wainwright made
bullying and humiliation comments or gestures, examples of which she gave as follows:
        He would point at her and ask her if she enjoyed the job, and require her to answer;
        He would ask her if he was a good boss and require her to reply „yes, boss‟.
        He would tell her that if she was not content, she could leave, and would point to the
         door and say „just go‟, or would suggest in very strong language that she return to
         Poland.
We believe that these incidents, or similar, did occur.


14       We were told by both Miss Kosmider and Mr Wainwright of an error by her, when he
was cooking and she took the whole order from a large party of about 40 people, rather than
taking it and giving it to him in stages. Miss Kosmider told us that he came out of the kitchen
and berated her in the hearing of the diners in very strong language. Mr Wainwright said that
he said something like “you stupid waitress”, and that the diners would not have heard. He
said that he was angry, and we understand why this was so. Miss Kosmider says that later she
tried to talk to him about it, and he said “shut up you bitch”. Miss Kosmider complained at
this, and she told us that Mr Wainwright laughed and explained that a bitch was merely a
female dog. We believe that he did say this.


15       In summary, we believe that in the latter part of Miss Kosmider‟s employment she was
subjected to a string of such comments and insults, of which we have given some examples.


16       We also find that Miss Kosmider tried to discuss with Mr Wainwright his behaviour
towards her, but he would not engage in the sort of discussion which an employer should
have with his employee. He may have thought that Miss Kosmider was being too sensitive, or
he may not even have realised that he was causing unhappiness, but Mr Wainwright‟s refusal
to talk constructively to Miss Kosmider left her helpless. We note that Mr Wainwright said to
us “if she had issues, she could have spoken to me or to someone else”, but the evidence
which we accept is that he would not talk. There are several examples which have driven us to
this conclusion.


17       There was the meeting in the chartroom in the club between Maria Ferreira, Miss
Kosmider and Mr Wainwright to sort out the problems between the two ladies. We note that
Maria Ferreira had tried to discuss matters with Mr Wainwright, but appears to have failed
until the meeting was arranged. What Mr Wainwright told us of his attitude to the meeting
was surprising, given that its purpose, and his responsibility, was to sort out a problem within
his organisation. He said “They were all grown women and could sort it out amongst



                                                48
themselves. I didn‟t want to get in the middle of them.” “I hardly said anything.” “They were
like two cats fighting.”


18      On one occasion, when Miss Kosmider felt that Mr Wainwright was against her all the
time and that everything she did was wrong, and she asked him to return to talking to her in a
pleasant fashion, but he replied unpleasantly to her.


19      On another occasion, Miss Kosmider told us that she waited in the kitchen for Mr
Wainwright to finish his drink at the bar so that she could talk to him about his treatment of
her, and when he came into the kitchen she told him that if he did not want to employ her, he
should sack her. Apparently he said that he would not sack her and did not want her to leave,
and then he went back to the bar.


20      The attitude of Mr Wainwright in the chartroom meeting to the problem of two of his
staff being unhappy with matters at work leads us to believe Miss Kosmider‟s evidence that
she did on several occasions try to talk to him about his treatment of her, and he did not listen
to her or try to help.
21      It is difficult to untangle exactly what happened when the employment came to an
end; it appears that in a telephone conversation Mr Wainwright gave Miss Kosmider two
weeks notice, and she responded by giving him one weeks notice. The next day, according to
Mr Wainwright, he did not mention the notices which each had given; he said “I thought she
was sulking and that it would blow over.” According to Miss Kosmider, Mr Wainwright said
to her “Did you have a nice evening yesterday?”
It does not matter which version is correct; what is significant is that Miss Kosmider‟s
employer did not have a proper discussion with her on the day after he had given her notice
and she had given him notice.


22      Mr Downing said that he was discontented when Maria Fereira returned to work full
time and he considered leaving; we regard this as significant. It was clear that Mr Wainwright
and Mr Downing were friends, as well as being employer and employee, yet Mr Wainwright
could not perceive Mr Downing‟s discontent.


The seriousness of these matters
23      Having largely found that Miss Kosmider‟s account of Mr Wainwright‟s behaviour is
true, we now have to decide if that behaviour amounts to a fundamental breach of contract by
the employer; in other words, was Mr Wainwright‟s conduct not merely unreasonable, but
such that the contract of employment came to an end.



                                               49
24     Miss Kosmider has told us of the effect of this conduct upon her. On her days off she
dreaded going back to work the next day. He was making her unhappy. She was struggling
with the stress. She knew that she could not deal with the situation any longer.


25     We have come to the conclusion that an employee, whether it was Miss Kosmider or
anybody else, was entitled to regard the contract of employment as having ended; the
employer had fundamentally breached the contract. Our decision has two foundations. First,
we find that Miss Kosmider was bullied and humiliated. Second, the employer provided
nowhere for her to go, no grievance procedure for her to follow, to deal with her complaints,
so either she had to accept the treatment, or she had to leave.


26     We find that Miss Kosmider left her employment because of the breaches of contract
by her employer. She could not deal with the situation any more, by which she meant the way
she was being treated by her employer, so she sought another job.


27     Was the constructive dismissal unfair? We say that it was. Under the law, it is for the
employer to show to the Tribunal the reason for the dismissal, and that it falls within the
reasons described in the law. Given the way the case went, Mr Le Sueur rightly did not
address this point, for his client‟s case was that there was no constructive dismissal.


28     Article 77 of the law requires us to make an award of compensation if the complaint of
unfair dismissal is well-founded, which it is. The Employment (Awards) (Jersey) Order 2005
describes the compensation, if any, to be awarded; it depends upon the length of the
employment. In this case the employment was just over one year, and the order provides that
the award shall be eight weeks pay. According to the JET 2 form submitted by the employer,
Miss Kosmider‟s weekly pay was £262.50; we accordingly order the employer to pay to Miss
Kosmider (£262.50 x 8) = £2,100.00.




                                                50
                                      Jersey Employment Tribunal


Case Number:             1611050/05


Applicant:               Mr Paul Leggett
Respondent:               Blue Diamond Limited t/a Rooms @ St John


Case Summary: unfair dismissal: gross misconduct of employee; use of a formal disciplinary
procedure; computation of continuous employment (article 57 (3) of the Law); application
under article 86 of the Law in respect of pension rights.


Hearing held on:         2nd March 2006


Before:                  Mrs Nicola Santos-Costa, Deputy Chairman
                         Mrs Susan Armes, Tribunal member
                         Mr Samuel Le Breton, Tribunal Member
Representation:
For Applicant: Mr Leggett represented himself
Respondent:              Mr Paul Roper, Retail Director of Blue Diamond Limited


Witnesses:
For Applicant:           Mr Ron Turner
For Respondent:          Mr Paul Roper
                         Mr David Webber.
The Issues:


   1. Was Mr Leggett unfairly dismissed pursuant to article 64 of the Employment (Jersey)
          Law 2003 („the Law‟)?


   2. Was Mr Leggett‟s period of continuous employment broken by the one month he
          worked for Scope Furnishing Limited in 2003?


   3. Does Mr Leggett have an outstanding claim for pension benefits due to him pursuant
          to article 86 of the Law?




Preliminary Issues:

                                                  51
The Respondent („Blue Diamond‟) offered to meet in full the Applicant‟s additional claims as
follows:
   1. Unpaid wages for the period 25 October 2005 to 7 November 2005
   2. Unpaid holiday pay of 11/2 days, although disputed
   3. Unpaid overtime of 4 days, although no record of it was kept
   4. Notice pay of 1 month in accordance with Mr Leggett‟s contract.


Mr Leggett accepted Blue Diamond‟s offer and the Tribunal acknowledged their conciliatory
approach to this matter.


The Facts:


Mr Leggett commenced employment with Blue Diamond on 7 May 2001 working in their store
known as „The Furniture Company‟, as the Warehouse/Distribution Manager. In January 2005
Mr Leggett‟s role became redundant but Mr Alan Roper, the Retail Director of Blue Diamond,
impressed by Mr Leggett‟s knowledge of the store‟s products and insightfulness of the
business, offered him the position of a salesman starting in February 2005, which Mr Leggett
accepted. The Furniture Company changed its identity to Rooms @ St John and Mr Leggett
continued to work there until his dismissal on 7 November 2005.


The Tribunal heard evidence that Mr Leggett could be lazy and uncooperative in his work. It
was specifically mentioned that Mr Leggett had poor time keeping skills. Mr Leggett disputed
these assertions. Mr Leggett‟s witness, Mr Turner, considered that whilst he was the store
manager, Mr Leggett offered no more problems than any other member of staff and that on
balance Mr Leggett gave more time to the business than he took. Nonetheless it was clear to
the Tribunal that Mr Leggett had performance issues and indeed he fell out with the manager
of the store in 2003 (Mr Tony Simmons) to such an extent that he resigned and worked for
Scope Furnishings for one month. The Tribunal were informed that Mr Simmons wanted Mr
Leggett to return to The Furniture Company and arranged with him that as soon as he started
at Scope Furnishings that he should resign and return to The Furniture Company at a higher
salary and in the meantime Mr Simmons would not remove Mr Leggett from The Furniture
Company‟s pay roll. This conversation was witnessed by Mr Turner. This arrangement did
take place and Mr Leggett returned to work for The Furniture Company. Evidence was heard
that there continued to be issues between Mr Leggett and the management of the store over
Mr Leggett‟s attitude and laziness. Unfortunately no records were kept of these conversations
in Mr Leggett‟s personal file. In May 2005 the business was relaunched as Rooms@ St John
and given a new identity. Mr Roper considered that some members of staff, including Mr

                                             52
Leggett, had a negative attitude to the new business, and he spent some time making Mr
Leggett, in his words, more pro-active. In particular he had two appraisal meetings with Mr
Leggett in September and November 2005 where he stated that he was not happy with his
performance and attitude in the store and said that he would be dismissed if he didn‟t
improve. It was agreed that whilst he did not use the words „verbal warning‟ in either of these
discussions, Mr Roper‟s intent was clear. No written note was made of these appraisals and
they were not followed up in writing to Mr Leggett.


On Saturday 5 November Mr Leggett decided to go out for some milk for the staff canteen. He
told a work colleague. He was out of the shop for a maximum of 10 minutes. The business was
quiet and it was usual for someone to pop out in this manner. On his return to the store, he
was greeted at the door by the manager, Mrs Apperley who, in a raised voice, said that he
knew that he should not have left the store without notifying her first and that she would take
10 minutes off his lunch hour. In written evidence Mrs Apperley expressed an opinion that Mr
Leggett was aggressive towards her. Mr Leggett denied this and that he knew he had to tell a
manager before he left the shop. The discussion continued off the sales floor and the Tribunal
head evidence that Mrs Apperley was crying following the conversation. Evidence was heard
from Mr Webber (joint store manager) that he felt Mrs Apperley had made an issue about the
milk out of sheer frustration in dealing with Mr Leggett. Following reflection over the
weekend Mrs Apperley summarily dismissed Mr Leggett for gross misconduct on the Monday
morning.


DECISIONS


Issue 1


Was Mr Leggett unfairly dismissed pursuant to article 64 of the Employment (Jersey) Law 2003
(„the Law‟)?


In respect of the claim by Mr Leggett that he was unfairly dismissed for gross misconduct by
Blue Diamond, the Tribunal finds as follows:


Article 64 of the Law requires that when determining whether a dismissal is fair, the employer
must show the reasons for that dismissal and that it either falls within article 64(2) (and is
therefore a potentially fair reason) or there is some other substantial reason of a kind to justify
the dismissal of an employee holding the position which the employee held.




                                                53
The Tribunal finds that Mrs Apperley was aware that Mr Leggett had left the store without
permission and therefore against the rules on the Saturday morning and therefore Mr Leggett
was dismissed for a potentially fair reason.


The next stage is for the Tribunal to consider whether the conduct is such that it amounts to
gross misconduct. This is conduct which is so serious that it justifies instant dismissal without
notice.


The Tribunal do not consider Mr Leggett‟s absence from the shop at 10 o‟clock in the morning
for the purpose of getting milk for the staff room when the shop is not busy, albeit without
permission of the manager, to be an act of gross misconduct. Accordingly the employer‟s
response of summary dismissal was not reasonable in the circumstances and the Tribunal
finds that Mr Leggett was unfairly dismissed.


The Tribunal wishes to make the following points for future reference. It notes the employer‟s
concerns about Mr Leggett‟s level of co-operation and general attitude. However the various
appraisals or „job chats‟ should have been noted in writing and reflected in his personnel file,
with verbal or written warnings given as necessary. The lack of a formal disciplinary
procedure meant that there was no clear evidence of Mr Leggett‟s alleged misconduct to show
the Tribunal that the incident over the milk was in fact the last straw justifying dismissal,
although this was not enough to justify an act of gross misconduct in any event.            Blue
Diamond must endeavour to put in place a controlled and orderly manner of dealing with
disciplinary issues.


Issue 2


Was Mr Leggett‟s period of continuous employment broken by the one month he worked for
Scope Furnishing Limited during 2003?


Article 57 (1) of the Law states that, „any week which does not count under paragraphs (2) or (3)
shall break the continuity of the period of employment for the purposes of this Law.‟


Article 57 (3) (c) states that any week in which the employee is for the whole or part of that
week, „absent from work in circumstances such that by arrangement or custom, he is regarded
as continuing in the employment of his employer for all purposes‟ shall count in computing a
period of employment.




                                                54
The Tribunal heard evidence from Mr Roper that the store has its own „centre management
and administration‟ and accordingly Mr Simmons (the Manager at that time) would have had
the authority to permit Mr Leggett to work for Scope Furnishing Limited for one month whilst
remaining on the pay roll of the employer. It was clear from the evidence heard that this
arrangement was in place even before Mr Leggett started at Scope Furnishings. Furthermore,
the employer gave Mr Leggett a contract of employment to sign in 2004 which stated his
commencement date of employment as 7 May 2001 and no reference was made to the break in
2003. Accordingly the employer acquiesced in such break of employment.


The Tribunal finds that by:
   a) keeping Mr Leggett „on the books‟ of the employer;
   b) paying his salary in his absence;
   c) the presence of an agreement for Mr Leggett to return within one month, and
   d) the failure to draw attention to the break in the later contract of employment
that there was an „arrangement‟ in place between the employer and employee pursuant to
article 57(3) (c) and the continuity of Mr Leggett‟s employment is preserved. Accordingly the
Tribunal finds that the period of Mr Leggett‟s continuous employment is 4 years and 6
months.


Issue 3


Does Mr Leggett have an outstanding claim for pension benefits due to him pursuant to article
86 of the Law?


The Tribunal heard evidence from Mr Leggett that he was offered membership of the
employer‟s non contributory pension scheme when he started employment with Blue
Diamond, and that he completed his proposal forms and gave them to Mr Simmons for
submission on his behalf. Despite regular requests throughout his employment he never
received confirmation that he was a member of the employer‟s scheme. It became clear to the
Tribunal that this matter was complicated not only from an evidentiary point of view but also
because the scheme may have changed in the interim and that in fact neither party was ready
to proceed on this point. Accordingly it was decided to adjourn this aspect of Mr Leggett‟s
claim to Tuesday 25 April 2006 when it will be dealt with in full.


THE AWARD


The Tribunal‟s Award in this case is as follows:



                                               55
1. Unfair Dismissal


Pursuant to the Employment (Awards)             (Jersey) Order 2005, a period of continuous
employment of 4 years and 6 months means that compensation of an amount of 21 weeks pay
may be awarded.


Calculation:           £2,199.48 x 12 ÷ 52 = £507.57 per week


Award:                 £507.57 x 21 weeks = £10,658.97


2. Holiday Pay


The employer has agreed to pay the disputed amount of 1½ days pay:


Calculation:           £507.57 ÷ 5 days = £101.51 per day


Award:                 £101.51 x 1½ = £152.57


3. Notice Pay


                       1 Months salary, = £2,199.48


4. Overtime


The employer has agreed to pay the disputed amount of 4 days overtime:


                       £101.57 x 4 days = £406.04


TOTAL AWARD: £13,416.76


Note:
This award reflects the claims made by Mr Leggett in respect of Issues 1 and 2 above and
specifically does not include any Award (if any is due) in respect of issue 3, which is to be
determined at a later date.




                                                56
                                Jersey Employment Tribunal


Case Number:          2510037/06


Applicant:            Lauraine Mackee


Respondent:           Jacksons (C.I.) Limited


Case Summary: Unfair dismissal: Article 62(1)(c) of the Law, breach of implied terms of
contract, repudiatory breach, subsequent resignation; relevance of grievance procedure;
existence of a loan agreement, unauthorised deductions from wages, article 51 of the Law;
existence of contract of employment; provision of statement of terms of employment, article 3
of the Law.


Hearing on:           6th March 2006


Before:               Mrs Nicola Santos-Costa, Deputy Chairman
                      Mrs Kelly Flageul, Tribunal Member
                      Mr Billy McPhee, Tribunal Member


Representation:
For Applicant:        Miss Mackee represented herself
For Respondent:       Mr Michael Cushing, Bailhache Labesse


Witnesses:
For Applicant:        None
For Respondent:       Mrs Tina Rafferty
                      Mr Martin Greenwood
                      Mr Richard Millington


The Facts


Miss Mackee was employed by Jacksons (CI) Limited („Jacksons‟) on 4th May 2004 as a Service
Advisor on the BMW desk at Jacksons. Previously Miss Mackee had been employed by BMW
Scotland as a Service Advisor and following an interview with Richard Millington (at that
time the After Sales Director at Jacksons) she had left that job and come to Jersey. Miss
Mackee had received a letter of offer of employment dated 5th April 2004 which described the
main terms of her employment, and which said that, „Full details of terms and conditions are

                                                57
contained in the Jacksons Company Handbook and a terms and conditions document. These
will constitute your contract of employment and will be available on your start date‟. Miss
Mackee maintains that she did not receive the Company Handbook or the terms and
conditions and accordingly had no contract of employment. Jacksons asserted that this would
be unusual.


On looking for accommodation shortly after arriving in Jersey, Miss Mackee found the cost of
accommodation much higher than she had anticipated. The flat she wanted to take required a
deposit of £850 and the first month‟s rent in advance. Miss Mackee simply did not have this
money available. She asked Martin Greenwood (the Service Manager of the Jacksons Airport
site), who was showing her around properties, whether she could have a pay rise to help meet
the cost of living in Jersey and if Jacksons would pay the first month‟s rent and deposit
(totalling £1,706.66) on her behalf by way of a relocation cost. Mr Greenwood said that he
would run the salary increase past Mr Millington and see if Jacksons would „support
Lauraine‟ in respect of her accommodation costs. In fact Mr Millington promptly agreed to
increase Miss Mackee‟s salary to £21,000 with a £4,000 bonus, target related, which was their
top salary for service advisors. Mr Millington gave evidence that he told Mr Greenwood that
the £1,706.66 was to be an interest free loan with a 3 months grace period. Mr Greenwood gave
evidence that whilst he was in no doubt that the accommodation costs would be met by
Jackson‟s by way of a loan, he may not have used the word „loan‟ in his conversation with
Miss Mackee. Accordingly, Miss Mackee was under the impression that the £1,706.66 paid on
her behalf by Jacksons („the accommodation costs‟) to the accommodation agency was a
relocation cost.


The following deductions in respect of the accommodation costs were made from Miss
Mackee‟s salary during the time she worked at Jacksons:


                   26/5/04    Misc Deduction                   £80.76
                   26/8/04    Housing Loan                     £71.11
                   26/10/04   Housing Loan                     £71.11
                   17/12/04   Housing Loan                     £71.11
                   25/2/05    Housing Loan                     £71.11
                   24/3/05    Housing Loan                     £71.11
                   26/4/05    Housing Loan                     £71.11
                   26/5/05    Housing Loan                     £71.11
                   26/8/05    Staff Loan                    £1,208.89




                                               58
This information is taken from Miss Mackee‟s wage slips. Miss Mackee gave evidence that
when the first „misc. deduction‟ was made from her wages in May 2004 she queried this with
Martin Greenwood who took it up with Mr Millington. Mr Millington said that he had not
ordered any deductions to be made (believing this to be the 3 months grace period) and
ordered the deductions to stop until he said otherwise. This conversation was not reported
back to Miss Mackee. However Mr Greenwood did advise her that the deduction was
probably to do with the fact that she did not commence employment at the beginning of the
month. The August deduction was queried by Miss Mackee with her manager; nothing was
heard back. Miss Mackee says she queried the October deduction with her manager, Gerry,
again nothing was heard back. When the December deduction was made, Miss Mackee
bypassed Gerry and went to Justin Griffiths, the Supervisor (she had been told to deal with
Mr Griffiths for queries, not Scott Harrowing her line manager). At this time there was no HR
Manager in Jacksons. Mr Griffiths said he‟d investigate it for her. Miss Mackee went to see the
Jackson‟s payroll supervisor, Kelly Rault in January 2005 about the deductions. Kelly obtained
confirmation from Mr Millington that it was a loan, but no one told Miss Mackee of this
conversation.


In February 2005 Miss Mackee received a loan agreement in the internal mail. Miss Mackee
refused to sign this document as she had never agreed that the accommodation costs would be
a loan and no one had spoken to her about it. No one discussed the terms of the loan
agreement with her or queried why she did not sign it.


When her manager changed to Scott Harrowing, Miss Mackee asked him to sort out the
deductions on her behalf and in June 2005, Miss Mackee had a meeting with Tina Rafferty the
newly appointed head of HR at Jacksons. Amongst other matters, they discussed the loan and
it was agreed that Mrs Rafferty would look into it. Miss Mackee gave evidence that she felt
„relief‟ that someone would take control of this matter „at last‟. Mrs Rafferty gave evidence that
as she couldn‟t find a copy of a loan agreement, she told the payroll department to cancel the
deductions. The progress of Mrs Rafferty‟s investigation was not reported to Miss Mackee.
However, Mrs Rafferty did tell Miss Mackee by email on 15th June 2005 that she would be
reimbursed for deductions made. On the 26th July 2005 Miss Mackee contacted Mrs Rafferty to
say that she still had not been reimbursed for the deductions made out of her salary. Mrs
Rafferty chose not to reply to her email until two weeks later on 8th August 2005, when she
also asked Mr Millington to deal with this matter directly with Miss Mackee, copied in to
Miss Mackee. On hearing nothing from Mr Millington, Miss Mackee contacted him directly
on this point on the 9th August 2005, the next day. Mr Millington responded that (inter alia)
„there is no doubt or question that this was and is a loan‟. This is the first contact between
Miss Mackee and Mr Millington on this subject. Miss Mackee asked to see Mr Millington

                                                59
about the matter later that day. Mr Millington gave evidence that he was busy with visitors
from one of the Company‟s marques and was not able to reply. Miss Mackee felt that she was
not getting anywhere with her complaint about the deductions and the status of the
accommodation costs. In her words she felt „isolated and demoralised‟. Mr Millington gave
evidence that he would have got around to speaking to her but as he was busy he asked Scott
Harrowing to pass on his message that „ the loan still stands‟. Miss Mackee was very
disappointed that Mr Millington would not (in her opinion) speak to her about this matter,
and resigned later that day. Miss Mackee cited the failure of the management to deal with her
accommodation costs as the reason for her resignation.


The Tribunal also heard that in April 2005, Miss Mackee was moved from the BMW Service
desk at Jacksons‟ Airport site to the Volkswagen Service desk at St Peter. It was reported that
Mr Millington and Mr Greenwood had issues with her performance on the BMW desk and
thought the move to VW would give her a „fresh start‟ at Jacksons. In evidence, neither party
could give an example of a specific performance issue although Mr Millington said the
Customer Satisfaction Index at the BMW Service desk was falling within Jacksons at that time,
this was an important issue. Miss Mackee considered that she was given no choice but to move
to VW if she was to continue to work at Jacksons. This was not denied. It was noted by the
Tribunal that this conversation was before the introduction of the Employment Law. In
evidence Miss Mackee said she was „devastated‟ by the move; she had worked her way up
from a Ford Service Desk to BMW in Scotland and considered her career lay with BMW.
Further, if she had known that she could be moved from BMW to another marque in the group
and another site, she would not have come to Jersey. Miss Mackee considered a move to VW, a
demotion. Jacksons kept no notes of this conversation. The Tribunal heard from Mr
Greenwood, her manager at BMW, that Miss Mackee „didn‟t have the best of starts‟ on the
BMW desk; there was no formal induction and there were problems with the existing
members of staff. He acknowledged that she was moved to VW during her probationary
period, but she had come to Jacksons supposedly knowing her product. It was agreed by both
sides that the VW Service desk is a very busy service desk and needs two people to operate it
efficiently. Miss Mackee gave evidence that apart from a short period at the beginning, she
had little or no support on this desk and would often be given staff members who were
unfamiliar with the computer, so she would have to spend time showing them the system as
well as getting on with her job. Her manager, Justin Griffiths noticed that she appeared de-
motivated and having attempted unsuccessfully to discuss the situation with her, arranged for
her to have a job chat with Mrs Rafferty in June 2005. The main thrust of the meeting appears
to have been about the deductions from Miss Mackee‟s wages, mentioned above, although the
notes kept of the meeting do not reflect this or other issues supposedly discussed.



                                               60
As stated above, Miss Mackee maintained throughout the hearing that she had not received a
Statement of Terms and Conditions of Employment or a copy of the Company Handbook on
joining Jacksons. Accordingly, she was not aware of the Company‟s grievance procedure at
that time and exercised her common sense in pursuing her complaint about the deductions
from her wages. It was noted by the Tribunal that the copy Statement used by both parties in
their bundles referred to Miss Mackee‟s present address in Jersey indicating that an older file
copy did not exist. On the 30th June 2005 Mrs Rafferty emailed a copy of the updated Employee
Handbook around Jacksons. She referred to this document as being „read only‟. Miss Mackee
took this to mean that it could not be printed off but in fact Mrs Rafferty referred to printing
off a copy later in her email, so this was not the case. This Handbook contains guidance on
commencing a grievance procedure and allows for deductions from wages. Miss Mackee by
her own admission did not read the Handbook.


DECISIONS


Issue 1


1. Was Miss Mackee constructively dismissed from her position as a service adviser with
   Jacksons Garages?


In order to claim constructive unfair dismissal the employee must establish:


   1. that the employer was in breach of the contract of employment
   2. that the breach was a repudiatory one, entitling the employee to resign
   3. that the employee did resign because of that breach of contract.




Breach of Contract


The employer may be in breach of either an express or implied term of contract.


Miss Mackee suggests that Jacksons were in breach of her contract of employment by making
deductions from her salary, (for the accommodation costs) without her consent or permission.


Miss Mackee maintained that she did not have a contract of employment when she started
with Jacksons. The employer stated that their computer showed that the Statement of Main
Terms and Conditions and the Handbook had been printed out on the day she started work
with Jacksons but they could not show that these documents had been given to her. The

                                               61
Tribunal heard that Miss Mackee „did not have the best of starts‟ and was not given a formal
induction to Jacksons. On balance the Tribunal consider that she did not receive the Statement
or the Handbook and accordingly had no written contract of employment with Jacksons when
she started employment.
The subsequent issue of the Company Handbook (by Mrs Rafferty, by email in June 2005) is
the only form of written terms of Miss Mackee‟s contract of employment, the parts which are
missing would have to be inferred from the parties conduct. This new Handbook does allow
Jacksons to make deductions from an employee‟s salary, including for the repayment of any
debts due to Jacksons. However this provision did not come into force until June 2005 and
thus only covers the deduction made from Miss Mackee‟s final salary on 26th August 2005.
Accordingly there was not express contractual provision by which Jacksons could make
deductions from Miss Mackee‟s salary until this time.


Jackson‟s maintained throughout the hearing that the provision of the accommodation costs
by them was by way of a loan. Miss Mackee maintained throughout the hearing that she had
understood the accommodation costs relating to the first month‟s rental to be a gift and monies
representing the deposit payable to be returnable to Jackson‟s when she left the flat or
Jackson‟s employ whichever was sooner. The Deputy Chairman asked Jacksons to point to
which parts of the evidence before the Tribunal proved that these monies were a loan to Miss
Mackee and further, to show the Tribunal that in law the accommodation monies constituted a
loan to Miss Mackee.


The employer could show that Mr Millington believed the accommodation monies to be a
loan and that he had communicated this fact to Mr Greenwood, the payroll department and
the HR department in Jacksons. However it could not be shown that these instructions had
been communicated to Miss Mackee. The evidence showed that the first time Miss Mackee
was told that the monies were a loan was by Mr Millington‟s email to her of the 8th August
2005. This is despite her regularly querying the deductions made from her salary throughout
her employment. Mr Greenwood gave evidence that he may not have used the word „loan‟
when he informed Miss Mackee of Mr Millington‟s decision to provide the accommodation
costs. His conversation with Miss Mackee was recalled in terms of „supporting her‟ in respect
of her expenses in relocating to Jersey. Also, no terms of a loan were discussed at that point,
which would further give the impression that the monies were a gift. Indeed a loan agreement
was not prepared and sent to her until Miss Mackee had worked at Jacksons for 10 months and
her refusal to sign it did not cause any comment or follow up. Further, Mrs Rafferty‟s email of
the 15th June 2005 stated that Miss Mackee would be reimbursed for the deductions made to
date. Again, although this email was incorrect and correspondence was sent by Mr Millington
to Mrs Rafferty, she did not communicate this change in approach to Miss Mackee until 8th

                                              62
August 2005 and then only by copied in email. Miss Mackee appeared consistently to question
the deductions from her salary and Jacksons produced no evidence to show that she did not do
so. Therefore on balance the Tribunal finds that Miss Mackee was unaware that the monies
were loaned to her and was entitled to treat the accommodation costs as a gift by way of
covering her relocation expenses.


Jacksons produced a copy of Halsbury‟s Laws (Volume 20(1) in order to show that the monies
could not be a gift inter vivos because they were not voluntarily transferred from Jacksons to
Miss Mackee with the full intention that they should not be returned to Jacksons.


However, the point is whether these monies were a loan enforceable by contract. One of the
basic elements of a valid contract is that the parties must have a „consensus ad idem‟; there
must be consensus on specific matters in the contract. For all the reasons stated above,
Jacksons and Miss Mackee could not have been further apart on the purpose or subject matter
of the contract. It is clear that due to various communication failures within Jacksons that the
terms of this contract were not identified and communicated to Miss Mackee before the
parties purported to enter into it. Furthermore, Jacksons could have remedied this situation at
an early stage and failed to do so. It is clear that Miss Mackee decided to take the flat in
respect of which the accommodation costs arose, because she thought the monies were a gift.
She relied on that position being a term of the contract and Jacksons did not disabuse her.
This arrangement was crucial to Miss Mackee‟s decision to remain in Jersey. The Tribunal
finds that there was no contract for a loan between the parties and Miss Mackee was entitled
to treat the accommodation monies as a gift.


One of the implied terms of a contract of employment is that of mutual trust and confidence
between employer and employee. Both employer and employee owe each other a duty not to
„without reasonable and proper cause conduct [themselves] in a way calculated and likely to
destroy or seriously damage the relationships of confidence and trust between employer and
employee‟ (Malik & another v BCCI in liquidation (1997) 1CR 606, HL and applied in
Robinson v Dept of Education, Sport & Culture of the States of Jersey, 2006 - JET 1910028/05).


The transfer of Miss Mackee to the VW Service Desk after only 4 months and whilst still in
her probationary period, would have been undermining to her confidence and trust in her
employer to look after her best interests. Miss Mackee gave evidence that the letter offering
her employment with Jacksons was on the Airport site letterhead and contained the BMW
logo. As Miss Mackee had no contract of employment and no induction she was not aware that
Jacksons occupied various sites and her skills could be transferred to other motor desks in the
business. She gave evidence that she would not have moved to Jersey if she had known this

                                               63
and the Tribunal believes her. The Tribunal finds that Miss Mackee was given little or no
introduction to her new role, there were allusions to difficulties with existing staff members
and a general acknowledgement that she „hit the ground running‟. The employer despite
direct questioning could not even give one example of poor performance or misconduct by
Miss Mackee leading to her transfer; a reference to „falling CSI‟ is not sufficient to warrant
someone losing their position. To move her during her probationary period against this poor
start and without giving her an opportunity to improve is poor practice. The Tribunal
understands why Miss Mackee felt demoralised by the move. To compound matters further,
Miss Mackee was moved to a busy Service Desk with little or no support and even her
manager noticed she was becoming de-motivated.


Miss Mackee‟s working environment must be considered in the context that she was having
deductions taken out of her salary on an erratic basis, which despite her regular complaints to
various managers above her, no one seemed able or willing to clarify or sort out. For these
reasons the Tribunal finds that Miss Mackee‟s trust and confidence in Jacksons as her
employer would have been seriously damaged and that the implied term of her contract of
employment was breached.
A repudiatory breach of contract


The breach must be sufficiently serious to entitle the employee to resign.


The Tribunal finds that the continued deduction of monies from her salary in a context where
no one could give her a formal explanation or meet to discuss her concerns is a serious breach
of the trust and confidence employer and employee must put in each other.


Miss Mackee resigned because of that breach.


The Tribunal finds that Mr Millington‟s e-mail to Miss Mackee, of 9th August 2005, being in
effect the reply to Miss Mackee‟s email of the 26 July 2005 querying why she had not yet been
reimbursed for the deductions made, in which he states that, „There is no doubt or question
that this was and is a loan‟, would have been extremely depressing to Miss Mackee. She had
been seeking guidance on this matter for over 15 months and in her first direct response for
information, she was clearly getting nowhere. By categorically describing the monies as a loan
and then subsequently not being available to meet with her to discuss the situation or setting
up a meeting in the near future and then sending a message via a supervisor simply that „the
loan still stands‟, would indicate to Miss Mackee that she was not going to make any further
progress in this matter. Miss Mackee gave evidence that she felt isolated and demoralised and
had no choice but to resign and the Tribunal can understand this point of view. The Tribunal

                                               64
finds that Miss Mackee resigned because no one had addressed her complaints about the
deductions made from her wages and it had become clear that the most senior manager in the
business would not be willing to see her point of view.


Additional points:


The employer drew attention to the fact that Miss Mackee did not use the company‟s grievance
procedure. The Tribunal finds that as Miss Mackee did not have a copy of the Company‟s
Handbook on starting employment, it is irrelevant whether she used that procedure or not as
she could not be deemed to know of it. In respect of the later edition of the Company‟s
Handbook emailed to staff on 30th June 2005, Miss Mackee could have invoked the grievance
procedure. However, it must be noted that since May 2005 Miss Mackee had been querying the
deductions made with all relevant managers and supervisors in the business. By 30th June
2005, she had spoken to Tina Rafferty and believed the matter was being dealt with by the
H.R. department. This is stage 2 of the June 2005 grievance procedure. Her email to Mr
Millington of 9th August 2005 invoked stage 3, and she was given no cause to believe that any
one would listen to her grievance. One purpose of a grievance procedure is so that an
employer can gauge the seriousness of an employment problem and hopefully deal with it in a
manner satisfactory to all parties. Its general purpose is to give a mechanism for issues to be
dealt with in a formal, proper, fair and considered way. One effect of this is to avoid unfair
dismissal claims. One has to ask what was to be gained by Miss Mackee formally invoking the
grievance procedure – the employer was already fully aware of her grievance and no new
issues have been brought before this Tribunal. In this case, because Miss Mackee had been
trying to get someone in management to deal with her grievance about deductions from her
salary since May 2004, a failure to invoke the formal grievance procedure is irrelevant as the
parties were in the same position: no one in management offered to meet Miss Mackee to
discuss her grievance. Also no one referred her to, or had in fact told her there was, a company
grievance procedure.


The Employer also put emphasis on the fact that Miss Mackee resigned before Mr Millington
could meet her to discuss the situation. Again the Tribunal asks what was to be gained from
such a meeting as Mr Millington had indicated in his email to Miss Mackee that „it is and
always was a loan‟ and had sent a message back to her a day later that „the loan still stands‟.
He knew what her opinion was on the matter and these two communications give firstly no
indication that he was going to change his mind and/or listen to her opinions and secondly, no
indication that he was planning to meet her. The Tribunal can find no reason to suggest that
had Miss Mackee remained in employment for a few more weeks in order to meet Mr
Millington, that their views would have been reconciled.

                                               65
CONCLUSION:


The Tribunal finds that:
•    The terms of availability of the accommodation costs of £1,706.66 were either not
     expressed at all or made sufficiently clear to Miss Mackee at the time they were made
     available by Jacksons to Miss Mackee in May 2004, and that Jacksons breached the
     implied term of trust and confidence between employer and employee by deducting
     monies by way of repayment from Miss Mackee‟s salary during the period of her
     employment despite her continued protests;
•    Jackson‟s failure to communicate with Miss Mackee either the terms of the loan (as they
     saw it) or to meet with her to discuss the nature of the deductions despite her regular
     requests to various members of management, seriously affected the nature of Miss
     Mackee‟s relationship with her employers.
•    Miss Mackee resigned because no one would hear or discuss her complaints about the
     deductions or the nature of the accommodation costs themselves. The final two
     messages from Mr Millington (the most senior manager available to her) indicated that
     there was to be no discussion of her views in this matter. Accordingly Miss Mackee
     resigned promptly – there was nothing to be gained from staying on.


AWARD


The Tribunal finds that Miss Mackee was unfairly constructively dismissed and pursuant to
the Employment (Awards) (Jersey) Order 2005 awards her the sum of £3,230.77 being 8 weeks
pay by way of compensation.


Further the Tribunal finds that the element of the accommodation costs representing the first
month‟s rental on the flat in St Brelade being £856.66 was by way of a gift as a relocation
expense. Accordingly, Jacksons were not entitled to deduct the sum of £856.66 from Miss
Mackee‟s final salary. This is a breach of her contract of employment and pursuant to article 86
of the Law, the Tribunal hereby orders that Jacksons repays the sum of £856.66 to Miss
Mackee.


The Tribunal accepts that the other portion of the accommodation costs being the sum of £850
was by way of a returnable deposit and may be retained by Jacksons out of the monies they
deducted from Miss Mackee‟s salary.


Issue 2


                                               66
Were the deductions made from Miss Mackee‟s wages not particularised in accordance with
article 51 of the Law, leading to a determination of the Tribunal pursuant to article 53?


Article 51 of the Law requires itemised pay statements to be provided to employees stating
inter alia the amount of any deductions made and their purpose.


Miss Mackee‟s pay slips refer to deductions in respect of the disputed loan as variously
„housing loan‟, „staff loan‟ or „misc. deductions‟. The first two are satisfactory; whilst the
validity of the loan was in question the reason for these deductions is clear. Whether or not the
reference to „misc deductions‟ is acceptable to the Tribunal is not a matter that it has to
determine in this case because those particular deductions were made before the introduction
of the Law.


Issue 3


Was Miss Mackee issued with a Statement of terms of employment which reflects the
requirements of article 3 of the Law?


The Tribunal has already found that Miss Mackee did not have a Statement of main terms and
conditions of employment when she started work with Jacksons. The subsequent issue of the
Company Handbook in June 2005 does not fulfil the requirements of article 3 of the Law.


Jacksons is a prominent business in the Island and a major employer. Evidence was heard that
is employs approximately 350 people across the Islands and 207 in Jersey. It has an HR
Department dealing with its staffing issues. The management of Jacksons in Jersey should
have taken care to ensure that their employees had written terms of employment reflecting the
requirements of the Law.


The Tribunal finds that Jacksons has committed an offence under Part 2 of the Law and in
accordance with article 9(1) of the Law hereby fines Jacksons the sum of £500.


In addition the Tribunal would like to make the following points.


Whilst it is not against the Law to distribute a staff handbook by email or by exhibiting it in a
staff rest room, the Tribunal consider it poor practice. The staff handbook forms part of the
contract of employment of Jackson‟s staff and it is therefore essential that they receive an
individual copy. To circulate it by email, where some staff do not have ready access to a screen
or the know-how to access the document may not be sufficient coverage of the document to

                                                67
staff members. Further, access to a document in a staff room where it may be mislaid on any
particular day/weeks or damaged, or presented in a manner preventing private access to its
contents, is also not considered by the Tribunal to be best practice and may, if tested, fail to
fulfil the requirements of article 3 of the Law.




                                                   68
                                   Jersey Employment Tribunal

Applicant:               Gary Daniel Loynd


Respondent:              Jersey Rugby Football Club


Issues:                  Redundancy
                         Unfair dismissal
Representation
Applicant:               Mr Loynd represented himself
Respondent:              Mr Eric Axford & Mr Kiran Patel


Witnesses:
For Applicant:           Mr Gary Loynd
For Respondent.          Mr Eric Axford
                         Mr Kiran Patel


Hearing on:              9th March 2006


Before:                  David Le Quesne, chairman.
                         Kelly Flageul – Tribunal Member
                         Jim McCarten – Tribunal Member


1         Mr Loynd started his employment as a chef at the Jersey Rugby Football Club in June
1998. His employment was terminated with immediate effect when he was handed a letter
dismissing him on 31st August 2005.
          He claims that he was unfairly dismissed, that the amount he was paid for 8 weeks
payment in lieu of notice was too little, and that he was not paid for holiday entitlement.


2         The Club, in its response, states “Due to the financial position of the club Gary was
made redundant.”


3         The main decision for us appeared to be whether the dismissal was a redundancy. Mr
Axford, the Club treasurer gave evidence, which we accept, that the club‟s finances were in a
poor state and the catering was making a loss. He and Mr Patel, the manager of the Club, said
that since Mr Loynd had left and been replaced with other catering arrangements, the
profitability of the catering had improved significantly without any loss in demand of quality.



                                                 69
        Those other catering arrangements consist of an outside caterer providing broadly the
services which Mr Loynd had provided, which is to say meals on Tuesdays and Thursdays and
catering for functions. It therefore appears that the catering requirement of the Club has not
changed, but it has changed the way it satisfies that requirement.
        We have some doubt that this would amount to a redundancy, but for the reason given
below, we have not had to decide this issue.


4       We were surprised by the evidence of Mr Patel and Mr Axford that the underlying
reason why Mr Loynd was dismissed was because he was running the catering unprofitably.
Mr Patel said that Mr Loynd “was not doing the job as we wanted” and “he was not
performing his job”. Mr Axford, asked by Mr Loynd why he had not been told he was not
performing satisfactorily, said “ A kick up the backside would not have gone amiss”.
        What is clear to us from the evidence for the Club is that Mr Loynd was dismissed
because he was running the catering at a loss, not because the job had changed. The same job
is being done by an outside caterer, and the club is satisfied because catering now is
profitable.


5       Mr Patel and Mr Axford were asked if they were aware of anybody having pointed out
to Mr Loynd that he was not performing his job properly, and they were not. Mr Loynd said
that he was not warned that there was anything wrong; when he was given his notice of
dismissal, it was a bolt out of the blue.


6       Mr Loynd‟s employment was terminated by a letter given to him on 31st August 2005.
In that letter, the club secretary wrote that the termination “is due to your position having to
be made redundant, and in no way reflects your performance in your job.” Clearly this
conflicts with the evidence given to us by Mr Patel and Mr Axford; we make our decision on
the evidence given to us by them, as opposed to what is said in the JET 2 form and the letter of
dismissal.


7       We are satisfied that Mr Loynd was not made redundant, although the club may have
thought that to be the correct description of what happened. Mr Loynd was not performing his
job as the employer wished, and he was dismissed. His job now is being done by an outside
caterer. There was no warning to Mr Loynd that his performance fell short of what the club
required, so the disciplinary procedure described in the contract of employment was not
followed.




                                                70
8       It was not fair to have dismissed Mr Loynd without discussing with him what the club
saw as his shortcomings, without giving him the chance to change, and without using the
disciplinary procedures described in the contract of employment.


9       Mr Loynd had been employed by the club since June 1998, so under the Employment
(Awards)(Jersey) order 2005 the compensation we award is 26 weeks pay, which is 26 x £165 =
£4,290.00.


10      In respect of holiday entitlement, we were told that Mr Loynd had taken 9 days
holiday, leaving 5 days due to him, which at £165 per week = £165.00.


11      We think that the amount paid to Mr Loynd in lieu of notice, £1,480.50 fulfilled his
entitlement; no more is due.


12      The respondent, Jersey Rugby Football Club, therefore must pay to Mr Loynd the sum
of £4,290.00 + £165.00 = £4,455.00.




                                               71
                                  Jersey Employment Tribunal


Case Number:            0412055/05


Applicant:              Caroline Smart


Respondent:             Les Charrieres Country Hotel Limited


Hearing on:             20th March 2006


Before:                 David Le Quesne, chairman,
                        Mary Curtis, Tribunal Member
                        Alan Hall, Tribunal Member


Representation:
For Applicant:          Miss Smart represented herself
For Respondent:         Mr Paul Wright, General Manager


Witnesses:
For Applicant:          Mr Alan Thomson
For Respondent:         Miss Alexandra Cook.


Issue:
Breach of contractual term to pay bonuses.


1         Miss Smart was employed by the respondent from 3rd July to 29th October 2005. A
written contract of employment was signed on 14th August 2005 by Miss Smart and Mr Wright.
She gave in her notice on 28th September 2005 and her last working day was 29th October.


2         The parties agreed that there were two matters for us to decide, both concerning
bonuses. One concerns the „summer loyalty‟ bonus, and the other concerns the „bed bank
bonus‟.


Summer loyalty bonus


3         On the first page of the employment contract the summer loyalty bonus is described as
“£15 per week summer loyalty bonus as laid out in bonus book.”



                                               72
       At the front of Miss Smart‟s bonus book Mr Wright wrote “Summer loyalty bonus
runs from 14th May 05 until 22nd October 05 payable on completion of period only on 5th
November 05. This book must be brought with you when you collect your wages.”
       Paragraph 9 of the contract states “Bonuses are only payable for satisfactory service
after the completion of the total contract period, as agreed with the Manager. Where
employment is terminated prior to the finishing date, the bonus will not be paid and a
reference won‟t be given.”


4      Miss Smart‟s claim is that she is entitled to her summer loyalty bonus because she
worked until after the end of the qualifying period, which she says was 22nd October. The
company‟s response is that the meaning of the words in the contract and in the bonus book is
that the bonus would be paid only if Miss Smart were still employed on 5th November 2005.
5      We have to decide what is the meaning of the words quoted in paragraph 3 above. As a
second stage, we have to decide if other terms relating to the bonus were incorporated as
contractual terms, for instance as a result of discussions between the parties.


6      Our decision is that the plain meaning of the words in the bonus book is that the
bonus would be paid if Miss Smart remained in employment on 22nd October 2005, but that
the payment would not be made until 5th November. Paragraph 9 of the contract does not
assist, because the reference to “…terminated prior to the finishing date…” begs the question
of when was the finishing date.
7      That being our interpretation of the written contract, we have considered whether or
not there was an oral agreement which bears upon our interpretation. Mr Wright said that the
precise terms of the bonus payments were made clear to Miss Smart in telephone
conversations before she became employed.
       It is for the company to satisfy us that the written contract as interpreted by us does not
describe the full terms of Miss Smart‟s employment; that what was written has to be taken in
the light of what was agreed orally between Miss Smart and the company before that written
contract was signed, or was subsequently varied by agreement. We are not satisfied that this
particular point, that the bonus would not be paid unless Miss Smart was employed on 5th
November, was made by the employer, or was agreed, although we do believe that bonuses
generally were discussed.


8      Mr Wright and Miss Cook, who was and is employed by the company at the hotel as a
receptionist/reservationist, said that during Miss Smart‟s employment Mr Wright told Miss
Smart that the bonus would only be payable if she was still in the company‟s employment on
5th November. We are not satisfied that this relatively small point, a difference between two



                                                73
dates of 22nd October and 5th November, was made clear to Miss Smart, and we are not
satisfied that, if it was, it was agreed by her.
        In considering this, we are struck by the improbability of Miss Smart depriving herself
of her bonus by leaving a week before it would have become due; had she known that the
qualifying date was 5th November, rather than 22nd October, we believe that she would have
given her months notice a week later, particularly as she said that the bonus was important to
her because without it her remuneration was lower than in her previous job.


9       We therefore hold that Miss Smart‟s entitlement to the summer loyalty bonus arose
when she remained in employment on 22nd October 2005.


Bed bank bonus


10      On the first page of the employment contract, the bed bank bonus is described as “6p
per head on bed banking taken, paid end Jan and end July each year.” Again, paragraph 9 of
the contract does not help.


11      The company‟s argument is that the bonus only became payable if Miss Smart was
employed by it on those dates, the end of January and the end of July, and Mr Wright said that
this was made clear to Miss Smart before she was employed, and he and Miss Cook again said
that this was reiterated by him at a meeting during the summer.


12      In our judgement, this bed bank bonus, which was a bonus of 6p per night in respect
of every person who slept in the hotel, for the person who took the booking, was in the nature
of an incentive or commission; it was earned by Miss Smart when she made the booking for
somebody to stay in the hotel. The dates in January and July were, as stated, the dates on
which accumulated bed bank bonuses were paid, and nothing more.


13      We hold that Miss Smart is entitled to be paid her bed banking bonus.


Conclusion


14      The amount of each bonus was agreed between the parties as £255.00 for the summer
loyalty bonus and £67.50 for the bed banking bonus, and we order the company to pay the
total of £322.50 to Miss Smart.
We want to make it clear that we feel that Mr Wright genuinely believed that his
understanding of the bonus arrangements was correct; he was not trying to deprive Miss



                                                   74
Smart of her entitlement. We advise the company to consider redrafting the relevant parts of
the contract and the wording used on the bonus book.




                                             75
                                         Jersey Employment Tribunal
Case Number: 0712065/05


Applicant:                Mrs. Caroline Mitchell


Respondent:               Vibert & Bridle Limited


Hearing on:               23rd March 2006


Before:                   David Le Quesne, Chairman,
                          Billy McPhee, Tribunal Member
                          Stuart Mourant, Tribunal Member


Representation:
For Applicant:            Miss K Le Cornu
For Respondent:           Mr. Peter Bridle, Director


Witnesses:
For Applicant:            Mrs. Caroline Mitchell
For Respondent:           Mr. Peter Bridle



Preliminary Hearing
1.         On 14th March 2005 Mrs Santos-Costa, Deputy Chairman, directed that the issues for
           determination by the Tribunal were
                                  i.         Unfair dismissal
                                  ii.        Holiday pay
                                  iii.       Entitlement to commission.


Issue 1.
Unfair dismissal


2.         Mrs. Mitchell‟s case on unfair dismissal boiled down to two allegations. First, that
           there was not conduct by her which could justify a fair dismissal; second, that she was
           not made aware of her alleged shortcomings and given a chance to change.


3.         It is well established that there are stages to the consideration of an unfair dismissal
           claim. The first stage is to establish whether or not there has been a dismissal. In this
           case there is no doubt that Mrs. Mitchell was dismissed.
                                                     76
4.   The second stage is for the employer to show that the reason for dismissal is one of the
     potentially fair reasons described in the law.


5.   We have had difficulty determining precisely what were the grounds for the dismissal.
     Mr. Stephen Bridle wrote a letter to Mrs. Mitchell on the 5th September 2005, at her
     request, confirming her dismissal and giving the reasons. He listed “ ......... problems
     [which] have been instrumental in our decision ......,” as follows:


     a.     Lack of cooperation between Mrs. Mitchell and the other receptionist,
            affect the morale of the whole workforce.


     b.     Inaccurate typing.


     c.     The amount of sick leave taken.


     d.     “Most importantly to us, it is a fact that you are not a „team player‟ that has
            been most influential”.


6.   We have heard evidence from Mr. Bridle that the atmosphere in the reception area was
     not good and that Mrs. Mitchell and the other receptionist had an unhappy
     relationship. We accept this. We have not heard any convincing evidence that the fault
     lay solely or mainly with Mrs Mitchell.


7.   We have no reason to doubt that Mrs. Mitchell‟s typing was less accurate than the
     employer required, but we note that Mrs. Mitchell was moved, at her request, from the
     front desk, which the employer says was for the typist/receptionist (a job for which
     Mrs. Mitchell was employed) to the back desk, which Mr. Bridle told us was for the
     secretary/typist. As far as Mr. Bridle was concerned, there were two different jobs: the
     front desk job was firstly reception and secondly typing, whilst the reverse applied to
     the back desk job. Mrs. Mitchell said she was unaware of the jobs being different, and
     that she asked to move merely to be closer to the fire. Whereas Mr. Bridle said that the
     change of desk involved a change of job, Mrs. Mitchell‟s job description was not
     changed, according to her contract of employment. We think that, in reality, there was
     an enhanced requirement for typing skills when Mrs. Mitchell moved to the back
     desk, but this was not communicated to Mrs. Mitchell.




                                             77
8.    We agree that the amount of sick leave taken by Mrs. Mitchell was such as to cause
      concern to a reasonable employer, and we accept that Mrs. Mitchell additionally took
      time off as compassionate leave.


9.    We have heard little to support the “most influential” reason for the dismissal, which
      is that Mrs. Mitchell was not a team player. The evidence goes little further than
      showing


      a.     that Mrs. Mitchell and the other receptionist did not get on, and


      b.     that Mrs. Mitchell was at times moody.


      We have not heard evidence to satisfy us that the fault lay solely or mainly with Mrs.
      Mitchell.


10.   Vibert & Bridle‟s response form (JET) cited an additional complaint “ .... consistently
      demonstrated an inability to cope with basic routine office procedures, e.g. internal
      locking up procedures ..... “. This complaint was not referred to in the dismissal letter.


11.   Taken in the round, the employer has not satisfied us as to the true reasons for
      dismissal.   It appears to us that, broadly, the reason was “conduct of the employee”
      (paragraph 64(2)(b)), but we feel that the employer has not sufficiently defined or
      proved the relevant conduct. However, the third stage (paragraph 64(4)) is where the
      employer‟s case really fails.


12.   Assuming that the employer succeeded at the second stage, by satisfying us that there
      was a potentially fair reason for dismissal, such as disruptive behaviour and poor
      typing, we then have to consider whether the dismissal was reasonable, and thus fair.
      A core question for us at this stage is whether the procedure followed by the employer
      in reaching a decision to dismiss was fair. This is not a question of the Tribunal
      merely substituting its reaction to the circumstances for that of the employer; the
      Tribunal must determine whether or not the course taken by the employer was within
      the range of what it was reasonable for an employer to do in such circumstances.


13.   It is our opinion that a reasonable employer should have determined what were Mrs.
      Mitchell‟s shortcomings, and put those shortcomings squarely to Mrs. Mitchell. The
      basic requirements (other than when immediate dismissal is justified) are that the
      employee should be told what is the problem in the eyes of the employer, be given the

                                              78
          opportunity to explain, and be given the opportunity to remedy those shortcomings.
          Depending upon the size and circumstances of the employer, there may be other
          requirements, such as training, but we see no reason why any employer should not
          fulfil those three basic requirements.


14.       In our judgment, the requirements were not met by the employer. There were meetings
          to try to sort out the problems between the receptionists, but Mr. Bridle candidly said
          that they were really meetings to try to clear the air. Mrs. Mitchell was not told that her
          employer regarded her as being at fault and was not required to change her behaviour
          in this regard. Referring to the specific complaints:


          a      We believe that Mrs. Mitchell was not clearly told that her typing was not
                 sufficiently accurate. She was told to correct errors, and people stopped asking
                 her to type, but this does not meet the requirement that the employee should be
                 informed of the alleged shortcomings.


          b.     Nothing appears to have been said to Mrs Mitchell about her taking too much
                 time off work, for sick or compassionate leave.


          c.     We heard no evidence that Mrs. Mitchell was taken to task for not being a team
                 player.


15.       In summary, we are satisfied that Mrs. Mitchell was never told in clear terms what
          were her failings, and she was never warned that, should she not mend her ways, she
          was liable to lose her job.


16        Our decision is that the employer‟s failure to meet her requirement rendered the
          dismissal unfair. Mr. Bridle said in cross examination that, had Mrs. Mitchell changed,
          she would have kept her job. We find that she was not given a reasonable chance to
          change, and, as we say, that renders her dismissal unfair.


Issue 2
Holiday Pay


17.       Mrs. Mitchell had booked the 31st October 2005 for holiday before she was given notice
          of dismissal. In the event, it was due to be her last day of employment and, further she
          was on sick leave that day. Sickness whilst on holiday leave does not convert the
          holiday leave to sick leave. Therefore, no holiday pay is due to Mrs. Mitchell.

                                                   79
Issue 3
Entitlement to Commission


18.       Mrs. Mitchell‟s claim for commission for introducing a vendor with a property to be
          sold (it was in fact sold by Vibert & Bridle after Mrs. Mitchell left) fails on the ground
          that there was not an enforceable contract. The terms of the commission arrangement,
          such as the amount, were not agreed, and without such agreement they cannot be a
          binding contract.


AWARD

Compensation for unfair dismissal


19.       The Employment (Award) (Jersey) Order 2005 has a scale of compensation for unfair
          dismissal, and in the case of between one and two years, which is the case here, the
          amount of wages to be awarded as compensation is eight weeks‟ pay.          We therefore
          order Vibert & Bridle Limited to pay to Mrs. Mitchell £3,076.88.


      Mr. Bridle was admirably frank in admitting that his firm had been slow off the mark in
      adopting the measures required to comply with the law.         It was clear to us that much
      progress has now been made by Vibert & Bridle Limited. We think it may be helpful to all
      employers and particularly to smaller firms, to make it clear that the law now is in force
      and the Tribunal acts according to that law, however sympathetic it may feel to an
      employer which has made efforts to comply with the law, but not in fact complied. There
      is plenty of advice available to employers, from JACS and from private bodies, and
      employers will find that they may save time and money by taking and following advice
      now rather than by learning the hard way through tribunal hearings.




                                                  80
                                   Jersey Employment Tribunal


Case Number:            2510035/05


Applicant:              Miss Aleksandra Roszkowska


Respondent:             Café des Artistes (1988) Limited


Case Summary: minimum wage (article16), breach of contract (article 86), itemised pay
statement (article 51) provision of written statement of terms and conditions (article 3), notice
pay due (article 56), holiday pay due (article 11).


Hearing held on:        28th March 2006


Before:                 Mrs Nicola Santos-Costa, Deputy Chairman
                        Mr Peter Woodward, Tribunal Member
                        Mr Tim Langlois, Tribunal Member


Representation:
For Applicant:          Miss Roszkowska represented herself
For Respondent:         Mr Carlos Marcelo, Manager, Café des Artistes


Witnesses:
For Applicant:          Mrs Rita Dubois
For Respondent:         None
The Facts.


Miss Roszkowska was employed by Carlos Marcelo, manager of Café des Artistes, as a
waitress on 19th September 2005. On 14th October 2005, Miss Roszkowska fell down some steps
at work hurting her back. After the lunchtime session she left work to see a doctor at the
hospital. The employer maintained that she did not inform anyone of her injury or the reason
for her absence. When she arrived for work the next morning she failed again to give a reason
for her absence from work the previous day, and as she had been reprimanded for being late
on two previous occasions, was sacked by the manager.


The Issues:


The Tribunal are required to consider five issues:

                                                 81
           •     Did the employee receive the minimum wage whilst working for Café des
                 Artistes, pursuant to article 16 of the Law?
           •     Did the employee receive an itemised pay statement in accordance with
                 article 51 of the Law?
           •     Did the employee receive a statement of terms and conditions of
                 employment in accordance with article 3 of the Law?
           •     Did the employee receive the notice pay that was due to her pursuant to
                 article 56 of the Law?
           •     Did the employee receive the holiday pay that was due to her pursuant to
                 article 11 of the Law?


1. The Minimum Wage issue.
The Tribunal heard from Miss Roszkowska that she was paid as follows:
                      £180 for w/ending 1st October 2005
                      £180 for w/ending 8th October 2005
                      £256 for w/ending 14th October 2005 *


* Miss Roszkowska was employed on 19th September 2005 and her first week‟s wages of £180
(to w/ending 24th September 2005) was retained by the employer as a week in hand and
returned to her with her final wages on 14th October 2005.


Miss Roszkowska gave evidence that her working week was 43 hours comprised as follows:


                   9am – 5.30pm (less 1 hour in breaks) = 7.5 hours x 5 days
                                               +
                   11am to 5.30pm (less 1 hour in breaks) = 5.5 hours x 1 day


                                 = Total of 43 hours a week.
The employer could not show any wage records, employee records, wage slips or a contract of
employment to dispute this evidence.


The employer maintained that the sixth day (the shorter day of 11am – 5.30pm) was voluntary
on behalf of staff and sometimes they did not work a full day.


In the absence of written evidence to the contrary, and on hearing the evidence of both parties
the Tribunal believes Miss Roszkowska that she was expected to work 43 hours a week.




                                               82
The Tribunal was also inclined to believe the verbal evidence of Miss Roszkowska that she
was paid £180 a week and during the time of her employment received three envelopes each
containing, in cash, the sums of £180, £180 and £256 as described above. No wage slips were
issued. The employer could not show, apart as from described below, that this was not true. If
the Tribunal accepts that Miss Roszkowska received this money during her employment her
gross hourly rate would have been £4.43. This is below the minimum wage of £5.08.


However the employer was able to produce a letter dated 24th October 2005 addressed to
Employment & Social Security advising them that Miss Roszkowska‟s wage during
September amounted to £521.00 gross. The employer also produced a copy of its Employment
and Social Security Schedule for October 2005 indicating that Miss Roszkowska earned
£335.00 gross during that month. This means a total of £856 gross was earned by Miss
Roszkowska during the time she worked for Café des Artistes.


As there are no wage slips, employee records or other documentary evidence available from
the employer, the Tribunal considers that it is justified in looking at the contributions
schedule (and letter) in order to calculate Miss Roszkowska‟s hourly rate.


As stated above the Tribunal finds that Miss Roszkowska worked 43 hours a week for 3 full
weeks. In her final week she worked for 3 full days at 7.5 hours a day (total 22.5 hours) plus 5
hours on her last day (9am – 3.00pm – less 1 hour break), giving a total of 27.5 hours worked
that week.


The Tribunal calculates that the total hours worked by Miss Roszkowska for the employer
was 156.5. If this is divided into the total amount she is said to have earned as set out in the
Employment & Social Security documents (£856), this gives Miss Roszkowska an hourly rate
of £5.46.


The Tribunal notes that this is very close to the hourly rate described by the employer of £5.43
in his response on Form JET 2.


The employer has a duty to ensure that the figures contained in the Social Security
Contributions Schedule are correct so on balance the Tribunal will accept the sum of £5.46
being the Miss Roszkowska‟s hourly rate and not the sum £4.43 referred to above. Accordingly
the issue of the payment of the minimum wage is dismissed in this case.




                                               83
However, Miss Roszkowska maintained that she received £256.00 as her final wages and this
sum reflected her first week‟s pay and the monies she was due for the last week she worked
(totalling 27.5 hours as described above). This was not disputed by the employer.


The Tribunal finds that the employer was mistaken in its calculation of Miss Roszkowska‟s
final wages: £256 is too low an amount for the hours worked. As stated above, the Tribunal
finds, based on the employers own social security returns, that Miss Roszkowska earned £5.46
per hour.


The Tribunal has already found she worked 43 hours a week in her first week and 27.5 hours
in her final week. This totals 70.5 hours at £5.46 per hour which equals £384.93, gross. If we
deduct social security from this payment of 6%, this means that Miss Roszkowska should have
received £361.83 (net) as her final wages. She in fact received £256.00 (net), thus leaving a
balance of £105.83 due to her. As Miss Roszkowska is responsible for paying her own social
security on this sum as she has left the employ of Café des Artistes (unless she agrees with the
employer to the contrary) the sum of 6% must be added back to this, of £6.35, making the total
sum due to her of £112.18.


AWARD
The Tribunal hereby awards the sum of £112.18 to be paid to Miss Roszkowska pursuant to
article 86 of the Law.


2. The Itemised Pay Statement


The employer admitted that it did not provide itemised pay statements to their employees at
the time Miss Roszkowska worked for them. At that time they paid their wages in cash in
plain brown envelopes with no information whatsoever as to how the sum was calculated.
This is a clear breach of article 51 of the Law which requires itemised pay statements to be
provided.


The Tribunal finds that this failure to provide wage slips when taken against a background
that no wages book could be produced to the Tribunal or other records (as they had been
destroyed by the Manager at the end of 2005) is extremely alarming. Further the vast majority
of the company‟s employees were foreign and vulnerable to abuse by being unfamiliar with
the work culture in Jersey. There has been a long lead in to the employment law and
information and training has been available from JACS and the Jersey Hospitality
Association, of which Café des Artistes is a member, for some considerable time.



                                               84
The Tribunal hereby fines the Employer the sum of £350 in accordance with article 55 of the
Law.


3. The Statement of terms and conditions of employment issue.


Article 3 of the Law requires an employee to be given a written statement of the terms of their
employment not later than 4 weeks after an employee begins employment.


Miss Roszkowska was sacked on Friday 15th October 2005. The Tribunal heard evidence from
Carlos Marcelo the manager of the Café des Artistes that he intended to give Miss
Roszkowska a written statement of terms the next day, Saturday 16th October 2005. This was
the last day to ensure the statement was given within the 4 week period. Article 3(7) of the
Law requires a statement to be given even if the person‟s employment ends within the 4 week
period. The Employer is clearly in breach of this provision and in accordance with article 9 (1)
of the Law the Tribunal HEREBY FINES the employer the sum of [£350.00]


4. The Notice Pay issue.


The Tribunal finds that no notice pay was given to Miss Roszkowska. In accordance with
Article 56(i) of the Law, the employee is entitled to one week‟s notice.


As stated in paragraph 1 above, the Tribunal finds that Miss Roszkowska worked a 43 hour
week at £5.46 per hour, this earning £234.78 per week.


AWARD


The Tribunal hereby awards the sum of £234.78, by way of notice pay, being one week‟s wages
pursuant to Article 56 of the Law.


5. The Holiday Pay issue.


As stated above in paragraph 3, Miss Roszkowska had not received a written statement of her
terms. The Tribunal have used article 12 of the Law which states that employees are entitled
to a minimum of 2 weeks holiday a year.


The Tribunal have found, as described in paragraph 1 above, that Miss Roszkowska worked a
6 day week. This means that she was entitled to 12 days holiday a year.



                                                85
Miss Roszkowska worked for Café des Artistes form 1 month. This means she was entitled to
1 day‟s holiday. As stated in paragraph 1 above, the Tribunal finds that Miss Roszkowska
worked for 7.5 hours a day at £5.46 per hour. This totals £40.95 (gross) a day.


AWARD


The Tribunal hereby awards the sum of £40.95, being one day‟s holiday pay, pursuant to
article 13 of the Law.


                                   --------------------------------------------


                                                SCHEDULE


For clarity the Tribunal hereby sets out in summary the amounts of the Award and fines made
in this judgment.


Total amount payable to Miss Roszkowska


         1. Breach of Article 86                                                  £112.18
         2. Breach of Article 56                                                  £234.78
         3. Breach of Article 13                                                   £40.95
         Total amount payable to Miss Roszkowska                                  £387.91




Sum of fines imposed on the Employer


         1. Breach of Article 55                                                  £350.00
         2. Breach of Article 3                                                   £350.00
              Sum of fines imposed on the Employer –                     Total    £700.00




                                                       86
                                 Jersey Employment Tribunal


Case Number:                   0712064/05
The Applicant:                 Mr Agostinho DA GRACA
The Respondent:                The Royal Yacht Hotel


Hearing on:                    30th March 2006


Before:                        Mrs Nicola Santos-Costa, Deputy Chairman
                               Mr Stewart Mourant, Tribunal member
                               Mr Paddy Kirwan, Tribunal Member


Case Summary:                  Absence of applicant; minimum wage; provision of main terms
                               and conditions of employment; notice pay due; holiday pay due;
                               overtime pay due.


Representation
The Applicant:        The Applicant did not attend the hearing
The Respondent:       Mr Alcino Vieira, General Manager.


Witnesses:
The Applicant:        None
The Respondent:       None


The Facts


Mr Da Graca started work with the Royal Yacht Hotel as a Kitchen Porter on the 18th
September 2005. Mr Da Graca was sacked on the 25th November 2005 due to his repeated
absences from work.


The Issues


The Tribunal were asked to consider the following issues.


•    Did Mr Da Graca receive the minimum wage, pursuant to Article 16 of the Law?
•    Did Mr Da Graca receive a statement of terms and conditions of employment pursuant
     to Article 3 of the Law



                                                 87
•    Did Mr Da Graca receive the correct amount of notice due to him pursuant to Article 56
     of the Law
•    Is any holiday pay due to be paid to Mr Da Graca pursuant to Article 11 of the Law
•    Is any overtime due and payable to Mr Da Graca pursuant to Article 86 of the Law?


The Absence of the Applicant


Mr Da Graca failed to turn up to the Tribunal hearing despite Form JET 10 – Notice of Hearing
– being sent to him on 20th February 2006 at the address provided by him. Further the Secretary
to the Tribunal attempted to telephone him on the number he provided on three occasions as
well as telephone and text to his daughters mobile telephone leading up to the hearing date.
The Secretary also attempted to contact Mr Da Graca on these numbers twice on the morning
of the hearing. The telephone calls were never answered (the mobile telephone was switched
off) and no response was received to the text. The Secretary confirmed that no reason had been
given for Mr Da Graca‟s non attendance. The Tribunal waited until 0950am and a decision was
made with the Respondent‟s consent to proceed with the case in Mr Da Graca‟s absence and
not to adjourn the hearing. The Deputy Chairman explained to the Tribunal Members and Mr
Vieira, on behalf of the Respondent, that they would consider the contents of Form JET 1 by
way of an originating application and hear the oral evidence of Mr Vieira in response. The
Tribunal would use its common sense, discretion and the principles of natural justice in
coming to a decision on this basis about the issues raised by the applicant. This approach was
confirmed by the Tribunal members.


The Issues


1. The Minimum Wage Issue


Mr Da Graca stated in his Form JET 1 that he was paid £203 gross a week for working 8 or 9
hours a day, 6 days a week, thus making a 48/50 hour week, which would mean that he was
paid £4.06 - £4.23 per hour and below the minimum wage.


Mr Vieira replied that Mr Da Graca was expected to work between 7 – 10am (sometimes 8-
11am), and 7 – 9.30pm (sometimes to 10pm), totalling 6 hours on average, for 6 days a week.
For these hours Mr Da Graca received £215 gross.


The Tribunal obtained a copy of the Respondent‟s Social Security Contributions Schedule for
September, October, November, and December 2005. This showed Mr Da Graca earned the
following gross amounts:

                                              88
                               September 2005        £609
                               October 2005          £860
                               November 2005         £860
                               December 2005         £430


The Tribunal heard evidence form Mr Vieira that Mr Da Graca was sacked on Wednesday 25th
November 2005. In fact he was paid to the end of that week (actually an extra 2 day‟s pay as
one of those days would have been Mr Da Graca‟s day off). Mr Da Graca was also given a
week‟s wages as his notice (see paragraph 3 below). Further Mr Da Graca was accidentally
given a further week‟s wages because the automated payment of wages from the Respondent‟s
bank was not varied in time.


The Tribunal was shown a copy of a Statement of Main terms of employment (see paragraph 2
below) which whilst undated is signed by both Mr Da Graca and Mr Vieira for the
Respondent. This Statement refers to the rate of pay as being £215 gross for a 42 hour working
week. From the information contained in this statement, Mr Da Graca earned £5.12 per hour.
This is above the minimum wage.


In the absence of evidence from Mr Da Graca the Tribunal looked at the Contribution
Schedules which clearly indicated that Mr Da Graca earned £215 per week in October
November and December 2005. The Tribunal accepts Mr Vieira‟s evidence that Mr Da Graca
worked 36 hours a week which means he earned £5.97 an hour. Again this is above the
minimum wage. (Mr Vieira gave evidence that as a kitchen porter, Mr Da Graca would not
have been required to work elsewhere in the business: he was employed to work in the
kitchens only during the busy period of serving breakfast and dinner, which during that time
was full time work).


The Tribunal is satisfied that although Mr Da Graca did not work for the Respondent during
December 2005, the entries for December in the Contributions Schedule reflect the week‟s
notice he was given and the extra week he was inadvertently paid for. Further Mr Da Graca
worked for 2 weeks for the Respondent‟s during September and received £609, which again is
above the minimum wage.


DECISION


The Tribunal do not find on the evidence before it that Mr Da Graca was paid below the
minimum wage by the Respondent.



                                                89
2. Did Mr Da Graca receive a Statement of terms and conditions of employment?


As stated above, the Tribunal was referred to a copy of a Statement of Main Terms of
Employment which appears to refer to Mr Da Graca‟s employment as a kitchen porter with the
Royal Yacht Hotel and is signed by both parties. The Tribunal could find no reason to doubt
that this was a valid document. No evidence was offered as to whether this Statement was
provided within the 4 week period stipulated by Article 3 of the Law, and the document is
undated.


DECISION
The Tribunal finds on the evidence before it, that Mr Da Graca received a Statement of terms
and conditions of employment in accordance with Article 3 of the Law.


3. Did Mr Da Graca receive the correct amount of Notice due to him?


By Article 56 of the Law, Mr Da Graca was entitled to receive 1 week‟s notice. From the
Respondent‟s entry in the December 2005 Social Security contributions schedule, as explained
in paragraph 1 above, it can be assumed that Mr Da Graca received one week‟s notice of
termination of employment.


DECISION
The Tribunal finds on the evidence before it, that Mr Da Graca received the correct amount of
notice due to him pursuant to Article 56 of the Law.


4. Is any holiday pay due to Mr Da Graca pursuant to Article 11 of the Law?


Mr Da Graca is entitled to 2 week‟s holiday a year (Article 11 of the Law). The Statement of the
main terms of employment of Mr Da Graca states that his is entitled to 2 weeks holiday after 1
year‟s continuous service (rising to 4 weeks after 5 year‟s continuous service).


DECISION
The Tribunal finds that Mr Da Graca is entitled to 2 weeks paid holiday a year which for him
is 12 days. Mr Da Graca worked for 9 week‟s and 6 days, which means that he is entitled to
approximately 2½ day‟s paid holiday. However as the Respondent paid him up to the end of
the week in which he was sacked and erroneously paid him a further week‟s pay, no order is
made by the Tribunal for the Respondent to pay the Applicant in this respect.


5. Is any overtime due and payable to Mr Da Graca?

                                                90
Mr Da Graca claimed in his Form JET 1 that he was owed money for overtime worked. Mr
Vieira, on behalf of the Respondent, denied that any such payment was due. No evidence was
offered to substantiate or deny the claim.


DECISION
On the basis that no evidence was offered by either party, the Tribunal can make no decision
on this point and dismisses this issue.




                                             91
                                Jersey Employment Tribunal
Case Number:             3001016/06
Applicant:               Mrs Isobel Sousa
Respondent:              Hotel Revere Limited
Hearing on:              11th May 2006
Case Summary:            Unfair dismissal; minimum wage; notice pay due; holiday pay due;
Before:                  Nicola Santos-Costa, Deputy Chairman,
                         Mary Curtis, Tribunal Member
                         Jim McCartan, Tribunal Member
Representation:
For Applicant:           Mrs Sousa represented herself
For Respondent:          Mr Ryczard Chivers, General Manager


Witnesses:
For Applicant: None
For Respondent:          Mr Ryczard Chivers, above.
                         Mr Steven Lourenco, Group Accountant
                         Miss Ana de Freitas, Head Housekeeper


The Issues:


It was agreed by the parties that the Tribunal was required to decide upon these issues:
   1. Was Mrs Sousa unfairly dismissed from her position as a chambermaid with the
          Hotel Revere Limited pursuant to article 64 of the Employment (Jersey) Law 2003
          („the Law‟);
   2. Is Mrs Sousa entitled to receive notice pay following the termination of her
          employment pursuant to article 16 of the Law;
   3. Was Mrs Sousa paid less than the minimum wage pursuant to article 16 of the
          Law;
   4. Has Mrs Sousa received all holiday pay due to her pursuant to article 11 of the
          Law?


The Facts




                                                92
Mrs Sousa commenced work with the Hotel Revere Limited („the Hotel‟) on 19th April
2004 as a chambermaid. On Saturday 10th December 2005, at home during the early
evening, Mrs Sousa received a telephone call from her sister in Portugal informing her
that her mother was seriously ill and that she should visit her as soon as possible. That
night Mrs Sousa bought a single ticket to Portugal, to travel the next day. After various
attempts she spoke to the Hotel‟s Head Housekeeper, Miss de Freitas (her immediate
boss) and informed her of the situation and her plans to travel to Portugal the next day.
Mrs Sousa asked Miss de Freitas to inform the General Manager of the hotel, Mr Ryczard
Chivers, of her plans and the reason for them. Miss de Freitas agreed to do this but said
that Mrs Sousa must contact Mr Chivers directly as soon as possible to obtain his
permission to take leave and to make arrangements for her return to work. The next day,
Mrs Sousa went into the hotel to collect an item of clothing; she did not speak to Mr
Chivers or any other member of management of her plans, although Mr Chivers was
present on site. Mrs Sousa travelled to Portugal later that day as planned, sadly her
mother died the next day. In the meantime Miss de Freitas made arrangements with the
Hotel that Mrs Sousa‟s outstanding salary and holiday pay be paid to her as soon as
possible. On about 22nd December 2005 Mrs Sousa attempted to speak to Miss de Freitas
by telephone but Miss de Freitas was too busy to come to the telephone. Mrs Sousa
telephoned again later that night but says the telephone rang unanswered – this is
disputed by the Hotel. Mrs Sousa did not attempt to contact anyone in the Hotel again.
Mrs Sousa had one conversation with a friend who also worked in the Hotel and
informed her of her mother‟s death but did not ask her to pass this on to Miss de Freitas
or Mr Chivers. Mrs Sousa was rostered to work as a chambermaid over the Christmas and
New Year period. The hotel was very busy during this time and her absence on leave was
a great inconvenience to the staff. Mrs Sousa was informed of the Christmas / New Year
roster about 6 weeks in advance and was aware that she was required to work during this
time. Evidence was heard that part-time help was recruited during this period but that it
did not fully cover Mrs Sousa‟s absence.


Mrs Sousa returned to Jersey on 5th January 2006 and went immediately to the Hotel and
enquired of Miss de Freitas of her rostering for January. Miss de Freitas spoke to Mr
Chivers who told her to tell Mrs Sousa that there was no work available for Mrs Sousa
(the hotel was now quiet) but that she should re-apply for her position in March 2006.
Evidence was heard by the Tribunal that Mrs Sousa‟s position was not filled by the Hotel



                                           93
until April 2006. It was also apparent from copies of the Housekeeper‟s rota that Mrs
Sousa was still on the books of the Hotel until at least the end of December 2005 with her
absence marked as „unpaid leave‟.


In the middle of January 2006 Mrs Sousa was offered and accepted a domestic cleaning
job at market rates of pay, for one of the owners of the hotel to tide her over until March.
Unfortunately this job did not work for Mrs Sousa and she left after 3 days. Shortly
afterwards Mrs Sousa applied to the Tribunal.


DECISIONS


Issue 1.
Was Mrs Sousa unfairly dismissed from her position as a chambermaid with the Hotel
Revere Limited pursuant to article 64 of the Employment (Jersey) Law 2003 („the Law‟)?


The Tribunal heard evidence that Mrs Sousa was dismissed by the Hotel because of her
prolonged absence from her job without permission. In the opinion of Mr Chivers this
constituted serious misconduct. Mr Chivers said that he considered that Mrs Sousa
resigned from her job on 11th December 2005 by taking absence without permission.
However the Tribunal heard evidence that Mrs Sousa never said at any point in her
conversation with Miss de Freitas before she left for Portugal that she did not intend to
return to Jersey or to her job. Further evidence was produced showing that Mrs Sousa was
not taken off the books of Hotel Revere and her name continued to be entered on the
Social Security returns. Further she was marked as „unpaid‟ on the Housekeeper‟s rosters,
not as „absent‟ or „resigned‟ during that time. Also the Head Housekeeper gave evidence
that she always expected Mrs Sousa to return to Jersey eventually and had suggested
making her money up, not to finish her employment with the hotel, but in order to
provide her with some extra cash at a difficult and expensive time. From this evidence the
Tribunal concludes that Mrs Sousa did not resign from her position on the 11th December
2005 but in fact was dismissed on the 5th January 2006, the date she returned from Portugal
and reported for work, and it was communicated to her that she no longer had a job.




                                             94
Mr Chivers dismissed Mrs Sousa because of her misconduct. This is a potentially fair
reason for a dismissal pursuant to article 64(2) of the Law. However when coming to a
decision as to whether a dismissal is fair or unfair the Tribunal is required to consider:
   a) Whether the employee had been guilty of the misconduct at the time of dismissing
       him,
   b) If so were there reasonable grounds for that belief, and
   c) Did the employer carry out as much investigation into the matter as was
       reasonable in all the circumstances before dismissing the employee (British Home
       Stores v Burchill (1980) ICR 303 EAT, applied by JET in Brennan v Family Nursing
       & Home Care (2006)


The Tribunal heard evidence that despite being a small family business with a fairly
informal management style and being caused great inconvenience by Mrs Sousa‟s
prolonged absence, no one in the Hotel contacted Mrs Sousa by telephone during this
time to ask her when or if she was returning to work. The Tribunal also heard that when
Mrs Sousa reported to the Hotel on the 5th January 2006, Mr Chivers did not ask to see her
to enquire of the reason for her prolonged unauthorised absence from work and no
attempt was made to follow the employer‟ s disciplinary procedure. Instead Mr Chivers
dealt with the matter by sending a message through his housekeeper, that Mrs Sousa no
longer had a job in the Hotel.


The Tribunal is not unsympathetic to Mr Chivers‟ position: it is indeed highly
unsatisfactory to have members of staff who take unauthorised leave. The Tribunal
further finds that Mrs Sousa was not blameless in this matter: she should have contacted
the Hotel regarding her absence and subsequently informed them of her plans for
returning to work, obtaining their permission for such dates of absence.


It is fair to say that the Tribunal has wrestled with the point of view of both parties in this
case. However the point remains that Mrs Sousa was dismissed from her job without ever
having been spoken to by her senior manager and thus given the chance to explain the
reasons for her unauthorised absence (if indeed any existed) so that the matter could be
discussed. Mr Chivers had the opportunity to meet Mrs Sousa on the 5th January 2006 or
he could have attempted to contact her before that date on her mobile telephone. A very
minimum level of dismissal procedure requires this point to be observed before someone



                                              95
loses their job. Following such discussion Mr Chivers may have been quite within his
rights to dismiss Mrs Sousa for her conduct, if having heard her explanation, he still felt
her absence to be inexcusable bearing in mind the inconvenience to the Hotel.


After much consideration the Tribunal finds that Mr Chiver‟s failure to discuss this
matter with Mrs Sousa at all prior to her dismissal, means that Mrs Sousa‟s claim of unfair
dismissal against the Hotel, succeeds.


The Tribunal is unable to use Mrs Sousa‟s contributory fault as a means of reducing her
Award. Mrs Sousa had been employed by the Hotel for just over 20 months. Accordingly
she is entitled pursuant to the Employment (Awards) (Jersey) Order 2005 to receive 8
weeks pay by way of compensation for unfair dismissal. Mrs Sousa earned £178.50 gross
per week.


                    AWARD                   £178.50 x 8 weeks = £1,428.00
Issue 2


Is Mrs Sousa entitled to receive notice pay following the termination of her employment
pursuant to article 16 of the Law?
As the Tribunal have found that Mrs Sousa was unfairly dismissed she is entitled to
receive the notice due to her but unpaid. Mrs Sousa had worked for the Hotel for less than
2 years so she is entitled to 2 weeks notice.

                     AWARD                      £178.50 x 2 weeks = £357.00


Issue 3


Was Mrs Sousa paid less than the minimum wage pursuant to article 16 of the Law?


The Tribunal were shown copies of the Hotel‟s Social Security Returns for October,
November and December 2005. It also saw copies of the Hotel‟s own records regarding the
hours worked by its employee‟s. Evidence was also produced through her bank
statements of the payments received by Mrs Sousa from the Hotel during the time. On the
basis of this information provided to the Tribunal and following discussion with the




                                                 96
parties it became clear that Mrs Sousa had been paid more than the minimum wage
during her employment with the Hotel and this issue is therefore dismissed.


However it became clear from the Tribunal‟s investigations that although the correct
amount had been received by Mrs Sousa the Social Security Schedule for December 2005
indicated that £126.73 in excess had been paid to Mrs Sousa during this month and this
must be investigated and corrected by the Hotel with the Social Security Department.




Issue 4


Has Mrs Sousa received all holiday pay due to her pursuant to article 11 of the Law?


Upon hearing evidence from both parties the Tribunal found that Mrs Sousa was paid for
7 days holiday as being due to her when she left to go to Portugal. In fact only 6 days were
due to be paid to her. The parties accept that Mrs Sousa had been overpaid by one day‟s
holiday and accordingly no award is made in respect of this issue by the Tribunal.


                                Schedule of Awards made
               1.     For Unfair Dismissal £1,428.00
               2.     For Notice Pay due               £357.00
                                             Total: £1,785.00




                                             97
                                 Jersey Employment Tribunal


       Case Number:          2502037/06
       Applicant:            Mr Vivian Goguelin
       Respondent:           Stuart Banks (Carpenters & Builders) Limited


       Hearing on:           25th May 2006


       Case Summary:         Redundancy, unfair dismissal, fairness of procedure.


       Before:               Mrs Nicola Santos-Costa, Deputy Chairman,
                             Mr Stewart Mourant, Tribunal Member
                             Mr Alan Hall, Tribunal Member


       Representation:
       For Applicant:        Mrs Alison Goguelin
                             Mr Vivian Goguelin
       For Respondent:       Mr Stuart Banks, Company Director
                             Mrs Joanna Banks


       Witnesses:
       For Applicant:        Mr John Peat
       For Respondent:       None
The Facts


Mr Goguelin worked for Stuart Banks (Carpenters & Builders) Limited („the Company‟)
as a carpenter from 17th February 2003 until 9th February 2006. During that time he
worked on five jobs for the Company. The Tribunal heard that Mr Goguelin had been a
carpenter for 30 years and is a highly skilled and reliable craftsman and the jobs he
worked on for the Company reflected that skill and experience.


During the time that Mr Goguelin worked for the Company, there were a total of five
carpenters employed, including an improver. All of these carpenters had different
amounts of experience and brought particular skills to the Company; this was reflected in



                                            98
their charge out rates to customers. Mr Goguelin was considered by the Company to be a
„senior carpenter‟ and was thus the most expensive craftsman charged out. Mr Goguelin
disputed the phrase „senior carpenter‟; as far as he was concerned he is an experienced
tradesman who is willing to turn his hand to any task on a site which needs attention. Mr
and Mrs Banks consider that the fact that he was only ever given specialist carpentry work
to do on a job (requiring his skill and experience) and that he was paid a good wage for a
carpenter in Jersey, demonstrated his seniority amongst the carpenters employed by the
Company. The Tribunal heard evidence from Mr Goguelin that he was not told he was a
foreman or lead hand and that the path of authority is essential on a site for it to operate.
Mr Banks said that as Mr Goguelin usually worked with someone less experienced and
that he would discuss the progress of a job directly with Mr Goguelin or let him run a job
on his own, this conduct indicated his seniority in the operation of the business and it did
not need to be in writing too. Mr Goguelin‟s contract merely stated his job description as
„carpenter‟, as is the norm in the building trade.


Of the five jobs worked on by Mr Goguelin during his employment with the Company,
one was a long running renovation of a property in St Brelade. There was a problem with
the fitting of new windows and doors for this property which had been incorrectly
ordered, built, supplied and fitted by third parties. It was suggested that the Company
undertake some remedial work to try and ease the problem for the customer. Mr Goguelin
made it quite clear that he did not want to work on these windows as he felt it
compromised his reputation as a craftsman and that the problems should be resolved by
the third parties responsible for them. Mr Banks accepted this situation and for some time
found work on other jobs commensurate with Mr Goguelin‟s skills in order to avoid Mr
Goguelin having to return to the St Brelade job. However by the beginning of December
2005, Mr Banks was concerned that he had little work for a carpenter of Mr Goguelin‟s
experience to do, especially in view of his refusal to return to the St Brelade‟s job and
indeed expressed this concern at least three times during this month along the lines of
„that will make my life very difficult, I haven‟t other work, where am I going to put you‟.
On the 14th December 2005, the Company was offered a five week roofing job and took it
in order to provide Mr Goguelin with work and allow Mr Banks more time to find other
suitable work for him. Whilst on this roof job it rained and Mr Goguelin was forced to
return to the (indoor) St Brelade job. Mr Goguelin made it clear that he did not want to
return to this job, Mr Banks replied, “What else am I going to do with you.” Mr Goguelin



                                              99
gave evidence that he meant that he did not want to do the work on the windows, but he
would have done other carpentry work requiring attention on that site. Mr Banks
maintained that Mr Goguelin was too highly skilled and expensive to undertake such
work for customers. The following weekend Mr and Mrs Banks having reviewed the
Company‟s work on the books at that time, decided that they would have to let Mr
Goguelin go: there was simply not enough specialist carpentry work in the business at
that time. On Monday 16th January 2006 Mr Banks gave Mr Goguelin 4 weeks notice. It is
disputed as to whether it was in writing or not. What is not disputed is that the notice was
given on that date. There was a short discussion during which Mr Banks informed Mr
Goguelin that after the roofing job there was no more work available for him. Mr
Goguelin apparently said again that he would not return to the St Brelade job, so Mr
Banks said he had no choice but to give him his notice, which he did. Mr Goguelin did
not discuss the situation with Mr Banks over the next 4 weeks and on the 9th February
2006, he left the Company.


The Tribunal heard evidence from Mr and Mrs Banks that since Mr Goguelin left the
Company there has been no work for a carpenter of his skills and experience and they
have not replaced his position. Indeed the next most senior carpenter employed by the
Company, left 6 weeks after Mr Goguelin and he has not been replaced either.


On reflection Mr Goguelin considered that he had been unfairly dismissed and made a
complaint to the Employment Tribunal.


The Issue


Was Mr Goguelin unfairly dismissed pursuant to article 64 of the Law or was he made
redundant as stated by his employers?


Article 64 requires an employer to show the reason for the dismissal when the fairness or
unfairness of that dismissal is being considered. The fact of an employee‟s redundancy is
considered a potentially fair reason for dismissal.


Redundancy, is defined by the Law in Article 2, as existing where, „the dismissal is
wholly or mainly attributable to … the fact that the requirements of that business … for



                                             100
employees to carry out work of a particular kind … have ceased or diminished or are
expected to cease or diminish‟.


The Tribunal heard evidence from Mr and Mrs Banks that they had no work on the books
of the Company which was commensurate with the skills and experience of Mr Goguelin
or which they could charge him out to customers to perform at his higher rate.


Accordingly the Tribunal finds that the reason for Mr Goguelin‟s dismissal was that he
was redundant.


Article 64(4) of the Law requires the Tribunal to assess whether this dismissal was fair or
not, and this shall be determined, bearing in mind the reason for the dismissal, by;


a)     whether in all the circumstances including the size and administrative resources
of the Company‟s business, the Company acted reasonably or not in treating the lack of
specialist work as a sufficient reason for dismissing Mr Goguelin, and


b)     by considering equity and the substantial merits of the case.


The Tribunal is not concerned with the reason for deciding to make Mr Goguelin
redundant, that is a purely business decision for the directors of the Company, but it is
interested in the fairness of the decision to select Mr Goguelin for redundancy, using the
criteria set out in article 64(4) above. The Tribunal looked to assess whether the Company
acted reasonably in selecting Mr Goguelin for redundancy.


The decision to select Mr Goguelin for redundancy was not based on automatically unfair
grounds, therefore article 70 of the Law does not apply.


The Tribunal heard that Mr Goguelin was selected for redundancy because there was no
upcoming work requiring his skills and experience as a „senior carpenter‟. Mr Goguelin
totally disputed this title and said in evidence that he simply did the work required of
him; as he was experienced he did the most difficult jobs but he was always willing to do
the straightforward work too, including non carpentry work if necessary. Further Mr
Goguelin insisted that he only refused to undertake the remedial work on the windows



                                            101
on the St Brelade job, not the other work available on that site. This is disputed by the
parties because Mr Banks says Mr Goguelin was simply too expensive to use for
mundane work. Mr Goguelin insisted that other more junior carpenters could have been
dismissed by the Company before him certainly as they started after him. Mr Banks gave
evidence that their skills, experience and charge out rate were exactly right for what the
Company needed at that time and it fitted the Company‟s needs to retain those employees
and to let Mr Goguelin go. Mr Banks was certain that a carpenter of Mr Goguelin‟s
reputation and experience would have no difficulty in finding a new job. Mr Goguelin
did not dispute this. The Tribunal is also mindful of the evidence heard that no carpentry
work requiring Mr Goguelin‟s skills and experience has come into the business since Mr
Goguelin left.


Mr Banks did warn Mr Goguelin that the specialist carpentry work he undertook was
drying up. The Tribunal heard that he mentioned this about six times, but each time in a
fairly vague, roundabout way. Mr Banks did not warn Mr Goguelin that these
circumstances could lead to him being made redundant. Mr Goguelin gave evidence that
Mr Banks always supplied work for him and he was never concerned that the work might
cease to exist. In fact the roofing job at St Ouen is a good example of this belief; just as Mr
Banks was getting seriously concerned about the next job for Mr Goguelin (and had
warned him of this situation), the roofing job arrived. It is no wonder that Mr Goguelin
never gave future work in the Company a second thought.


However if Mr Banks had consulted Mr Goguelin early on about his possible redundancy
and the reasons for it, Mr Goguelin would have had the opportunity to inform himself of
the relevant facts, consider alternatives solutions and if necessary discuss alternative
employment in the Company or elsewhere.


On questioning from the Tribunal Mr Banks admitted that he had not expressly warned
Mr Goguelin of his dismissal or suggested to Mr Goguelin that he take a pay cut in order
that the Company could keep him on and charge him out to customers at a lower rate. Mr
Banks considered this would have been insulting to Mr Goguelin, and as Mr Goguelin
was already complaining that he did not have long enough holidays, Mr Banks did not
anticipate him accepting the idea of a cut in pay. The fact remains that he did not discuss




                                              102
redundancy or alternatives to redundancy with Mr Goguelin or indeed consider any other
option than to let Mr Goguelin go, when deciding what to do.


DECISION


When dealing with Mr Goguelin the Company failed to follow four ordinary principles of
fairness which should always be considered in situations of redundancy:


              1.      The duty to consult with the employee
              2.      The duty to warn of redundancy
              3.      The duty to establish fair criteria for selection of employees for
                      redundancy
              4.      The duty to explore alternatives to redundancy.


Mr Banks should have been explicit in his warnings of the work drying up that such
situation would affect Mr Goguelin directly and could result in his redundancy. The
reasons for Mr Goguelin‟s selection for redundancy should have been discussed between
the two of them and Mr Goguelin given a chance to respond. Finally, alternatives to Mr
Goguelin‟s dismissal should have been looked at by the Company and in consultation
with Mr Goguelin, such as a cut in wages, a return to the windows at the St Brelade job
etc. These consultations may have resulted in Mr Goguelin keeping his job, even if it was
at the expense of another employee who had been there less time than him. It was Mr
Goguelin‟s right as the employee of longer standing, to remain in work as a carpenter
with the Company if he wished to do so. The Tribunal would have anticipated a number
of these meetings to have taken place and minuted so each party had time to reflect on the
matters discussed before the next meeting and a decision given. Such meetings allow the
employee to be warned, informed, work with the employer on the issues and if necessary
move seamlessly into new employment.


In the absence of these conditions it is not surprising that Mr Goguelin thought he had
been sacked, he had no reason to know why he had been chosen to lose his particular job
in the Company.




                                           103
For all these reasons, the Tribunal finds that the Company did not act fairly in dismissing
Mr Goguelin from his job and accordingly that Mr Goguelin was unfairly dismissed.


AWARD


Mr Goguelin had worked for the Company for over 2 years but less than 3 years and in
accordance with the provisions of the Employment Awards (Jersey) Order 2005, the
Tribunal hereby awards 12 weeks pay to Mr Goguelin.


                       = £618 gross per week x 12 weeks = £7,416.00
Note
The Tribunal would suggest that any other employer contemplating redundancies should
consult with JACS for advice in the planning of redundancies before they take place.




                                            104
                              Jersey Employment Tribunal
Case Number:          0911046& 47 / 05
Applicant: (Case 1)   Mr Rafel Rojek
Respondent: (Case 1) Five Seasons Catering Limited


Applicant: (Case 2)   Ms Miroslana Stachurska
Respondent: (Case 2) Five Seasons Catering Limited


Note:                 Case 1 and Case 2 joined together for expediency.


Hearing on:           8th June 2006


Before:               Nicola Santos-Costa, Deputy Chairman,
                      Kelly Flageul, Tribunal Member
                      Samuel Le Breton, Tribunal Member


Case Summary: Gross misconduct – burden of proof; minimum wage – commencement
date of employment – burden of proof: unpaid wages; holiday pay due; contractual sum
due; no written statement of terms; issue of adequate pay statements.


Representation:
For Applicant:        Mr Rojek and Miss Stachurska represented themselves through an
                      interpreter Helen Skrypczak
For Respondent:       Anna Topelenska, Manager
                      Gary Noel, Consultant.
The Facts
Mr Rojek‟s Claims


Mr Rojek is a chef. During July 2005 he replied to an advertisement for a chef which had
been placed at the Job Centre by Mr Anwar Miah on behalf of 555 Seasons Food Centre
(„the Business‟). At that time the Business was owned by Mr Kenneth Longbottom. The
Tribunal heard evidence from both parties that Mr Longbottom had asked Mr Miah to act
as a „catering consultant‟ and advise on the fitting out, equipping, menu and operation of
a café and takeaway by the Business from its premises. The Tribunal were informed that



                                           105
Mr Miah had a budget with which to work and authority to engage staff for the business.
It became clear from the evidence heard that Mr Miah continued to perform this
consultancy role when the business opened and he also dealt with the staff on occasions.


Mr Miah offered Mr Rojek the position of a chef in the Business and explained that it
would be a few weeks before the Business opened as the premises needed renovation.
The Tribunal was told that Mr Rojek explained that he was able to assist with the works
as he had experience of building work. Mr Rojek said that Mr Miah hired him on the
basis that Mr Rojek would help in the renovations and repairs needed to the café and
then work as a chef in the café/takeaway when it opened. In return Mr Rojek would
receive wages and a room in the flat over the café where he and his girlfriend, Miss
Stachurska, would live rent-free for 8 weeks. Accepting these terms, Mr Rojek said he
started work for the Business on 30th July 2005. This starting date is disputed by the
employer‟s who say Mr Rojek was not employed by the Business until 5th September
2005, the day it opened to the public and the date Mr Rojek started work as its chef.


During the month of August 2005, Mr Rojek worked an average of 60 hours a week
renovating the Business‟ premises. He also used his skills as a chef, helping to organise
the menu and order in food stuffs required. Mr Rojek gave evidence that he worked for
low wages during this time because the flat was free and he wanted to help the business.


On the 5th September 2005, the Business opened. Mr Rojek‟s hours reduced to 40 – 45
hours per week and he was paid £6.50 per hour. His accommodation remained free until
the 29th September 2005 whereupon a charge of £80 per week for the double room was
made. In addition Mr Rojek was allowed to eat his meals in the café when he was
working a shift.


Mr Rojek was dismissed without notice on the 25th October 2005 for gross misconduct.
The employer stated in evidence that this was because he failed to turn up for work on the
24th October 2005 which meant that the business had to close, and this had happened on a
previous occasion too. The employer also stated that in the past Mr Rojek had been drunk
at work, hung-over, found drinking whilst at work, deemed to be stealing food and
accused of making his own beer on the premises. It was later agreed that in fact this was a
special mixture used to make Polish rye bread and had no alcoholic content. The Tribunal



                                            106
was also informed that in relation to the allegation that Mr Rojek stole food, no complaint
had been made to the police and no evidence was shown to the Tribunal to substantiate
this claim. The manageress, Miss Anna Topelenska gave evidence that she had in the past
spoken to Mr Rojek about these matters.


Mr Rojek disputed each of the allegations against him. In particular he said that on the
evening of the 24th October 2005 he had turned up at the café at 4.30pm to start to get
everything ready for the evening shift, but no one was on the


premises to let him in. His keys had been taken off him 3 days previously in response to
the allegations he had been stealing food. Mr Rojek said that he waited for approximately
1½ hours and when no one turned up, he left. Miss Topelenska gave evidence that she
was on the premises at 5.00pm, in the front of the café and would have seen Mr Rojek if
he had been waiting. She also said that she had to turn away the small number of people
waiting for the café to open, as she does not cook. Miss Topelenska gave evidence that she
was the only person on the premises. Miss Topelenska eventually closed the café and
went to get Mr Miah who arranged a relief chef to operate the takeaway. Miss Topelenska
said that as the Business was new it was important that it established itself as reliable and
Mr Rojek‟s failure to turn up a second time amounted to gross misconduct constituting
instant dismissal.


The Tribunal was informed that a short time before this incident, Mr Rojek, on the
instructions of Mr Miah, had built a small storeroom at the back of the premises. This
area was beneath a balcony and the task meant building three walls and painting them.
Mr Rojeck also undertook the electrics. Mr Miah agreed to pay Mr Rojek £275.00 for this
work. This sum is not disputed by the parties. On seeing the completed room, Mr Miah
said he would only pay £200 for the job as in his opinion that was all it was worth as the
roof leaked. Mr Rojek informed that Tribunal that he was not asked to build a roof. No
evidence was brought by the employer to dispute this assertion, although the Tribunal
was informed that it cost £300 to put the room right. No details of how this sum was
calculated were produced to the Tribunal.


Mr Miah was too busy to attend the Tribunal hearing in order to give evidence personally
on the issues in which he was involved despite a direct invitation to attend by the Panel.



                                             107
Miss Stachurska‟s Claims.


Miss Stachurska gave evidence that Mr Miah had agreed to employ her as a kitchen
porter. There was no discussion with Mr Miah about her hours or pay. Miss Stachurska
started work on the 6th September 2005 and worked 60 hours in that week. She received
£150 in cash. The following week she worked for approximately 24 hours and received
£100 in cash. She was told at the end of that week that she was being let go because there
was no need for her services.


The employers gave evidence that Miss Stachurska was not employed as a kitchen porter.
Arrangements had been made for a kitchen porter to join the business at the end of the
month and until then, as the business was just getting started, the chefs could cope
without assistance. However the employers were aware that Miss Stachurska did not have
a job in Jersey and they paid her out of petty cash on a casual basis for the work she had
done in the café. The Tribunal heard evidence that whilst Miss Stachurska had given a
hand, the business had been very relaxed in the early days of its commencement and Miss
Stachurska would sit with the other staff in the café and drink coffee during the day. The
Tribunal noted that Miss Stachurska‟s name did not appear on the wages records or on
the social security return filed for that period, although a note was made of the cash given
to her against her name. The employers gave evidence that they let her go after two weeks
because they simply could not afford to keep paying her. It was pointed out to the
Tribunal that the employers had continued to let her live rent free in the flat above the
café with Mr Rojek after this time.


Note: Mr Longbottom sold the Business in January 2006 and it now operates as Five
Seasons Catering Limited, the employers in this case. Mr Longbottom is no longer
involved in the Business and was not called by the employers to give evidence in this
case.


THE ISSUES AND DECISIONS
IN RELATION TO MR ROJEK:


1. Is Mr Rojek entitled to receive notice pay following the termination of his employment
pursuant to article 56 of the Employment (Jersey) Law 2003 („the Law‟)?



                                            108
Mr Rojek was dismissed without notice from his position as chef of the Five Seasons Café
and Takeaway, because he failed to turn up for work in the evening of 24th September
2005. The employers say that because this amounted to gross misconduct they are entitled
to dismiss him without notice. Mr Rojek had been employed for less than one year, and in
the absence of gross misconduct, he would normally be entitled to 1 weeks notice.


At the hearing neither party brought any witnesses to support the facts as presented by
them and each party‟s verbal evidence contradicted the other completely.


The burden of proving or satisfying the Tribunal that Mr Rojek was justifiably dismissed
without notice because of his gross misconduct, lies with the employer.


As noted above neither party brought any witnesses to show that Mr Rojek was/was not
outside the café between 4.30pm and 6.00pm. The Tribunal are surprised that only the
Manageress was apparently on duty at that time, it would have expected the kitchen
porter to have arrived for work during that period but no mention was made of him. In
addition no witness was heard regarding Mr Rojek‟s alleged drinking at work, being
drunk at work or that he was hung-over the next day.
The Tribunal finds on the evidence heard by it at the hearing that the employers failed to
satisfy the Tribunal that Mr Rojek was validly dismissed for committing an act of gross
misconduct, and accordingly find in favour of Mr Rojek on this issue.


AWARD


Mr Rojek does not appear to have a regular weekly salary. The Tribunal heard that Mr
Rojek earned between £265 - £302.25 per week. This gives an average of £283.62 per week.
The Tribunal heard that Mr Rojek was paid £6.50 per hour. When this is divided into his
average weekly earnings of £283.62, if means he worked an average of 43.6hours a week or
7.25 hours a day.


As Mr Rojek had worked for the Business for less than one year, he is entitled to receive 1
week‟s notice, which is £283.62.


2. Was Mr Rojek paid less than the minimum wage pursuant to article 16 of the Law?



                                            109
The Tribunal consider that there are two distinct periods of Mr Rojek‟s employment: the
time spent prior to the opening of the business and the time spent working as a chef after
the 5th September 2005.


When the Business opened Mr Rojek was, it was agreed, paid £6.50 per hour. This is
reflected in his pay statements and in the social security returns filed by the Business for
the relevant period. Accordingly it is clear that Mr Rojek was paid more than the
minimum wage from the 5th September 2005 and this part of the claim is dismissed.


However Mr Rojek‟s position prior to 5th September 2005 is not so clear cut. The
employers maintain that he was not employed by the Business, that he was self employed
and working for Mr Miah at that time. Accordingly any claim that he was paid less than
the minimum wage does not concern them.


However, evidence was heard from both parties that Mr Miah was a „catering consultant‟
brought in by Mr Longbottom to renovate, fit out and establish the café/takeaway
business. The Tribunal also heard that Mr Miah had a budget in order to fulfil this task
and was responsible for hiring the staff. It appeared to the Tribunal that Mr Miah had
authority to act as Mr Longbottom‟s agent in these matters. Unfortunately, neither Mr
Longbottom nor Mr Miah were available to give evidence on these matters. The Tribunal
heard from Mr Rojek and Miss Stachurska that they considered Mr Miah to be their boss
– he employed them both and gave instruction during their employment. Indeed he told
them to hand in their social security cards to Mr Longbottom. There is no doubt that Mr
Miah hired Mr Rojek as a chef and the Tribunal are of the opinion, having heard Mr
Rojek‟s evidence that Mr Miah arranged for him to do some handiwork for the business
prior to it opening and Mr Rojek starting as a chef. Mr Miah also appears to have made
arrangements for Mr Rojek to live in the flat rent free.


As far as Mr Rojek is concerned he was employed as a chef but first worked as a
handyman before the café/takeaway opened. This belief coupled with the authority that
Mr Miah appeared to have in the establishment of the business leads the Tribunal to find
that Mr Rojek was employed by the Business from 30th July 2005.




                                             110
Mr Rojek gave evidence which was not rebutted by the employers that during the weeks
of August 2005 he received the following sums in cash from Mr Miah.


               Week beginning 1/08/05           :      £150
               Week beginning 8/08/05           :      £200
               Week beginning 15/08/05          :      £200
               Week beginning 22/08/05          :      He cannot remember
               Week beginning 29/08/05          :      No evidence offered.


It must be noted that Mr Rojek was receiving the benefit of accommodation from his
employer at that time for which he did not pay separately. In accordance with article 9 of
the Employment (Minimum Wage) (Jersey) Regulations 2004, living accommodation
without food has a value of £55.65 per week. This must be added to the cash amounts
received as stated above.


Mr Rojek gave evidence that he worked 60 hours per week during this period.
There was no evidence received or heard from the employer to rebut these allegations. In
accordance with Article 32 of the Law, the burden of proof in claims for repayment of
sums due where the minimum wage has allegedly not been paid, lies with the employer.


Accordingly Mr Rojek said he received these amounts:


Week beginning      Cash      Accommodation         Total     Divided by      Hourly
                              Value                           Hours worked    wage
                                                                              received
Week 1 - 1/08/05    £150      £55.65                £205.65   60              £3.43
Week 2 - 8/08/05    £200      £55.65                £205.65   60              £4.26
Week 3 - 15/08/05   £200      £55.65                £205.65   60              £4.26
Week 4 - 22/08/05                               No finding made
Week 5 - 29/08/05                               No finding made


The minimum wage during August 2005 was prescribed by the Employment (Minimum
Wage) (Jersey) Order 2004, as £5.08 per hour.




                                            111
The Tribunal finds in accordance with the table set out above that during week 1, Mr
Rojek was paid £99.00 less than the minimum wage and in weeks 2 and 3, he was paid
£16.80 less than the minimum wage in each week. This makes a total of £132.60.


AWARD


The Tribunal hereby awards the sum of £132.60 to Mr Rojek by way of additional
remuneration pursuant to Article 26 of the Law and in respect of the period described
above.


The Tribunal HEREBY FINES the employer the total sum of £50.00 pursuant to Article
35(9) of the Law for both failing to remunerate Mr Rojek at a rate of pay which is at least
equal to the minimum wage and failing to keep adequate records in order that Mr Rojek‟s
rate of pay during this period could be established. This low sum is indicative of the
newness of the legislation at that time, the relatively short time the period of time the
failure covered and the unique circumstances of Mr Rojek‟s employment by the Business.


3. Was Mr Rojek entitled to receive pay for 6 hours worked by him but remaining unpaid
pursuant to article 86 of the law?


The Tribunal inspected the employer‟s records of the hours worked by its employees over
various weeks and could only find one discrepancy: in week 42 due to a miscalculation.
Mr Rojek should have received 3 hours more pay than he did receive. Accordingly the
Tribunal orders such sum to be paid to Mr Rojek.


AWARD
                             3 Hours at £6.50 per hour = £19.50


4. Was Mr Rojek entitled to any holiday pursuant to article 11 of the Law?


Mr Rojek commenced employment with the Business on 30th July 2005. His employment
was terminated on the 24th October 2005. In the absence of a contract of employment or
arrangements to the contrary, Mr Rojek was entitled to the statutory minimum of 2 weeks
paid holiday a year. As Mr Rojek worked 6 days a week this was 12 days holiday a year



                                            112
for him. Bearing in mind the period of his employment this means he was due 3 days
holiday.


AWARD


As stated in Issue 1 above, Mr Rojek was found to work an average of 7.25 hours a day at
£6.50 per hour.
Therefore Mr Rojek is awarded:
                            7.25 hours x £6.50 x 3 days = £141.37


Note: The employers said that this sum had been withheld by them in lieu of rent due on
the flat above the café/takeaway, because following his dismissal Mr Rojek did not move
out of the flat for a few days. The Tribunal finds that in the absence of a written
agreement the employer may not withhold payments due to the employee as payment for
other sums due to the employer.


5. Was Mr Rojek entitled to receive £75 for work done for the employer but remaining
unpaid, in accordance with article 86 of the Law?


The Tribunal finds that the contractually agreed price between Mr Miah on behalf of the
employer and Mr Rojek for Mr Rojek to build the new store room was £275.00. This was
stated as the agreed price in Mr Rojek‟s JET 1, his evidence as well as the employer‟s JET 2
and their evidence. The employers agreed in evidence that they had only paid him £200
but they brought no evidence to show (a) what they had asked him to do for £275, (b) that
this was not done satisfactorily, and (c) that such defects were worth deducting £75 from
the agreed price. Mr Rojek was clear throughout as to what was asked of him and what
the price was and in the absence of evidence to the contrary the Tribunal finds that the
contractual amount remains due.


AWARD


The Tribunal hereby orders the employer to pay the sum of £75.00 to the employee
pursuant to article 86 of the Law.




                                             113
6. Did Mr Rojek receive a contract of employment?


It was acknowledged by the employer that Mr Rojek did not receive a statement of
written terms and conditions of his employment during the period of his employment.
The Tribunal finds that this is a breach of article 3 of the Law.


AWARD


The Tribunal HEREBY FINES the employer the sum of £50.00 in accordance with article 9
of the Law.


7. Did Mr Rojek receive an itemised pay statement in accordance with article 51 of the
Law?


The Tribunal finds that from 5th September 2005, Mr Rojek received adequate pay
statements in accordance with article 51 of the Law. However in the preceding period
from the date of commencement of his employment, Mr Rojek did not appear to have
received any pay statements. The Tribunal finds this to be a breach of article 9 of the Law.


AWARD


The Tribunal HEREBY FINES the employer the sum of £50.00 in accordance with article
55 of the Law.


Note: This fine reflects the fact that the provisions of the Law were newly introduced at
that time and the unique circumstances of Mr Rojek‟s employment by Mr Miah on behalf
of the business.


In relation to Miss Stachurska


Miss Stachurska made 4 claims to the Tribunal:
              a) That she was due one week‟s notice following her dismissal, pursuant to
                 article 56 of the Law,




                                             114
           b) That she was paid less than the minimum wage during the period of her
               employment as set out in article 16 of the Law,
           c) That she did not receive a contract of employment, pursuant to article 3 of
               the Law, and
           d) That she did not receive pay statements in accordance with article 51 of the
               Law.


The Tribunal after consideration of the evidence heard by it finds that Miss Stachurska
was not employed by the Business. The Tribunal accepts that a kitchen porter was already
engaged by the Business to start at the end of September and that Miss Stachurska simply
decided to help out her boyfriend in the kitchen. The business rewarded the assistance
she gave by offering Miss Stachurska a small „token‟ payment for the work she did in the
kitchen prior to her finding employment in the Island. However there was no intention to
employ Miss Stachurska and the Business did not need her assistance in the long term.


For these reasons Miss Stachurska is not found to be an employee and all the claims
brought by her are hereby dismissed.


                                   Schedule of Awards.


Sum to be paid by the Employer to Mr Rojek
               Notice payment due      1 week                         £283.62.
               Minimum Wage - payment due                             £132.60
               Unpaid Hours due - 3 Hours at £6.50 p/hour             £19.50
               Holiday pay due - 7.25 hours x £6.50 x 3 days          £141.37
               Contractual payment due                                 £75.00
                              Total to be paid                        £625.09


Sum to be paid by the Employer to Miss Stachurska
Claim dismissed – No payment due                               None


Fines imposed on Five Seasons Catering Limited
Minimum wage/Inadequate pay records - pursuant to Article 35(9) of the Law        £50
No written contract in accordance with article 9 of the Law.                      £50



                                            115
No itemised pay statement in accordance with article 55 of the Law            £50
                                                           Total to be paid   £150




                                           116
                               Jersey Employment Tribunal


Case Number:           2002029 / 06
Applicant:             Mark Alfred Benest
Respondent:            Robin Hood Limited


Hearing on:            15th June 2006
Before:                Mr David Le Quesne, Chairman
Representation:
For Applicant:         Mr Benest did not appear and was unrepresented.
For Respondent:        Mr Barry Thirkell - Director


Witnesses:
For Applicant:         None
For Respondent:        None


Mr Thirkell‟s evidence was that his arrangement with delivery drivers, including Mr
Benest, was that they supplied their own cars, petrol and telephones for the purpose of
the job. They would say one week how many and what hours they wanted to work the
next week, and it was completely up to them if and when they worked. He paid them for
the hours they worked, which they would report to him at the end of the day. So, if a
driver did a delivery, and then went elsewhere for his own purposes, he could do so. Mr
Thirkell told me “They are free to do what they like…..they can drop off their children.”


It was clear to me that Mr Benest, like the other drivers, was not an employee of the
company. He could choose when and how he worked. There was no mutuality of
obligation, in that it was purely up to Mr Benest as to whether or not to work.


Having found that Mr Benest was not an employee, I dismiss his claim.




                                            117
                                Jersey Employment Tribunal
                                  DIRECTIONS HEARING


Case Number:            0602026/06
Applicants:             Mr Brendan Renehan


Respondent:             G4S Security Services (Jersey) Limited


Case Summary:            Interpretation of Article 11(1) of the Employment (Jersey) Law
                         2003


Hearing on:             20 June 2006
Before:                 Mrs Nicola Santos-Costa, Deputy Chairman


Representation:
For Applicant:          Mr Brendan Renehan
                        Mr Michael Bird
For Respondent:         Mrs Susan Ashford, HR Manager
                        Mr Christopher Durbano, Operations Director


The Jersey Employment Tribunal has been asked to interpret Article 11 (1) (b) of the
Employment (Jersey) Law 2003 (“the Law”) and in particular whether a shift worker who
finds that his rest day (unpaid) falls on a Bank or public holiday (a “Holiday”) is entitled
to claim the benefit of Article 11 (1) (b) of the Law.


Article 11 of the Law is concerned with an employee‟s entitlement to annual leave. The
relevant provisions of Article 11(1) (b) are as follows:



11   Entitlement to annual leave

      (1)     Subject to paragraphs (3) and (6), an employee shall be entitled in each leave
              year –

              (a)   to a period of leave of 2 weeks or to such other period as may be
                    specified in a relevant agreement, whichever shall be the longer; and




                                              118
           (b)   to leave –

                 (i)    on Christmas Day, Good Friday and all public or bank holidays
                        under the Public Holidays and Bank Holidays (Jersey) Law 1951,[3]
                        or

                 (ii)    in substitution for the leave to which he is entitled under
                        clause (i) on such days as the employee may in his discretion
                        decide or, where provided for in a relevant agreement, on such
                        days as may be so provided, which days shall not be less in total
                        than the total number of the days specified in clause (i) in respect
                        of the leave year in question on which the employee has been
                        required by his employer to work.


This means that in each leave year:


      An employee shall be entitled to a minimum period of leave of 2 weeks or such
       other period as is specified in an agreement (whether collective or individual in
       nature), whichever is the longer period. The Employment Tribunal interprets the
       reference to “2 weeks” as being twice the period of a particular employee‟s typical
       working week, and not the rest periods in between them.




      An employee shall also be entitled to leave on all public and Bank holidays in
       Jersey. The regular holidays are presently:


                                New Years' Day
                                Good Friday
                                Easter Monday
                                First Monday in May (May Day Holiday)
                                9th May (Liberation Day) (if it is a week day)
                                Last Monday is May (Spring Bank Holiday)
                                Last Monday in August (Summer Bank Holiday)
                                Christmas Day
                                Boxing Day



                                               119
The Law makes it clear that these holidays cannot be counted against the entitlement to a
minimum of 2 weeks paid holiday described above.


Article 11 goes on to state that if an employee cannot take a Holiday because he has been
required to work by his employer, he may in substitution for that Holiday take an extra
day of his choosing unless there is an agreement (collective or individual) between him
and the employer which specifies when such holidays that are being carried forward, may
be taken, provided that such agreement does not mean that the employee ends up with
less days than are specified as Holidays in the Law, during that employee‟s leave year.


Article 13 of the Law states that all leave to which an employee is entitled under Article
11, shall be paid at the rate of a week‟s pay in respect of each week of leave, such amount
being reduced pro rata for shorter periods of leave.


The Tribunal interprets Article 11 of the Law to mean that employees should receive at
least 2 weeks leave a year, paid in accordance with their current rate of pay. In addition,
employees shall receive leave (paid pro rata in accordance with their current rate of pay)
on each of the 9 Holidays presently existing in Jersey, such leave being taken on the
particular day which is the Holiday or where the employee is required to work on that
day, on another day which is mutually agreed by the employer and employee. The
Tribunal notes that where Liberation Day falls on the week-end, no corresponding day is
given as a Holiday on a working day and for this reason Liberation Day will always be
reviewed separately by the Tribunal when assessing whether entitlement to Holidays has
been met.
Accordingly, an employee who is required to work on Easter Monday, for example, shall
be entitled to:
                 A day‟s pay for the day he worked,
                 A day off in lieu, because he was required to work on a Holiday, and
                 The day off in lieu to be paid at his usual daily rate of pay.


By way of contrast, an employee not required to work on Easter Monday, would be
entitled to receive:
       A day‟s holiday, paid at his usual daily rate of pay.


                                                120
All Holidays are in addition to paid holiday leave provided by an employer. Accordingly
if a Holiday falls within an employee‟s arranged period of leave, it does not count as a day
of his period of holiday leave.


The situation is more complicated for shift workers as their regular pattern of work does
not always correlate with the standard working week.


It should be noted that Article 10 of the Law requires all workers to receive a weekly rest
period. An employee is generally entitled to an uninterrupted rest period of not less than
24 hours in each 7 day period during which he worked for his employer. By agreement
(individual or collective) this can be extended to cover 14 day working periods in
accordance with Article 10(2). This provides some structure to a shift worker‟s working
pattern.


It is obvious that shift working can cover days which are also Holidays. There is a
difficulty if by some chance the rest day falls on a Holiday. The employee is not required
to work that day. Indeed, the employer must insist that he take it as a rest day in
accordance with Article 10, above. Article 11(1) (b) refers to a day off being given in lieu
of a Holiday if the employee is required to work on that day.


The Tribunal considers that it was the intention of the legislature that all Holidays be given
to all employees and in addition to other paid holiday leave. It would be perverse if by
some quirk, shift workers, whose rest days unfortunately fall on a Holiday, should not
benefit from an additional days holiday like other members of the workforce.


The wording of Article 11 is very clear; the days referred to in Article 11(1) (b) are in
addition to the paid leave referred to in Article 11 (1) (a). Accordingly it is only just and
equitable that shift workers benefit from these provisions too, and the Tribunal will take
the view that shift workers whose rest days fall on a Holiday are covered by Article 11 (1)
(b). Such shift workers by virtue of their shift patterns are required to rest on such days
as are prescribed by their employers in order to discharge their duties. Such prescribed
rest is analogous to the prescribed work referred to in the Law and until such time as this
anomaly is clarified by the law draftsman, the Tribunal will apply it as such in order to




                                              121
ensure that such shift employees have the same number of Holidays throughout the year
as all other employees in the Island.


This interpretation of Article 11(1) by the Tribunal means that a shift worker whose rest
day falls on Good Friday for example, shall be entitled:


      To a rest day (unpaid)
      To a day off in lieu of the Holiday, to be paid at his usual daily rate of pay.


A shift worker who is rostered to work on Good Friday, for example, shall be treated the
same as any other employee, and shall be entitled:


      To be paid for a day‟s work, and
      To receive a day off in lieu of the Holiday that he worked, and
      To be paid at his usual daily rate of pay for such day off work.




                                             122
                                Jersey Employment Tribunal
Case Number:           0304050/06


Applicants:            Mr Gaudencia Augusto Mila
Respondent:            G4S Security Services (Jersey) Limited


Case Summary:           Interpretation of Article 11(1) (b) of the Employment (Jersey) Law
                        2003 where Christmas Day falls on a rostered rest day which is
                        also a Sunday.


Hearing on:            20 June 2006


Before:                Mrs Nicola Santos-Costa, Deputy Chairman


Representation:
For Applicant:         Mr Brendan Renehan – for applicant who was not present
                       Mr Michael Bird


For Respondent:        Mrs Susan Ashford, HR Manager
                       Mr Christopher Durbano, Operations Director

The Facts


Mr Mila works for the Employer as a First Response Officer in its Guarding and Patrols
Division. The Division operates through a shift system. On 25th December 2005 Mr Mila
was rostered to have a rest day on his shift.


By the provisions of the Public Holidays and Bank Holiday (Jersey) Act 1952, Christmas
Day is by customary law observed as a general holiday. In 2005 Christmas Day fell on a
Sunday and in accordance with the Act referred to above, Tuesday 27th December 2005
was appointed a public holiday. By virtue of Article 2(2) of the Public Holidays and Bank
Holidays (Jersey) Law 1951, every day appointed to be observed as a public holiday is also
to be observed as a bank holiday.




                                                123
Evidence was heard from the Employers that they treated each of the 25th, 26th 27th and 28th
December 2005 as bank holidays. This meant that those employees required to work on
any of those days received:
                       A day‟s pay, and
                       A day‟s paid leave which could be either;
                              o    banked with their annual leave, or
                              o    sold back to the Employer for a day‟s pay.


Mr Mila worked on the 27th December 2005 as part of his normal shift pattern and he
received the benefit above. He chose not to keep his extra day‟s holiday but to receive a
day‟s pay instead. This was agreed by Mr Mila‟s representative.


It should be noted that the Company‟s bank holiday arrangements are not contained in
their contracts of employment but operate by common practice with the workforce. This
was agreed by Mr Mila‟s representative.


Article 11(1) of the Employment (Jersey) Law 2003 („the Employment Law‟) states that:



      „(1)   ……………. an employee shall be entitled in each leave year –

             (a)       to a [minimum] period of leave of 2 weeks …………; and

             (b)       to leave –

                       (i)    on Christmas Day, Good Friday and all public or bank holidays
                              under the Public Holidays and Bank Holidays (Jersey) Law 1951,[3]
                              or

                       (ii)       in substitution for the leave to which he is entitled under
                              clause (i) [above] on such days as the employee may in his
                              discretion decide or, where provided for in a relevant agreement,
                              on such days as may be so provided, which days shall not be less
                              in total than the total number of the days specified in clause (i) in
                              respect of the leave year in question on which the employee has
                              been required by his employer to work.‟




                                                    124
In the case of Renehan v G4S Security Services (Jersey) Limited (2005), the Jersey
Employment Tribunal gave Directions that where a prescribed rest day falls on a Bank
Holiday, that rest day should be treated as a prescribed working day for the purpose of
Article 11(1) of the Employment Law, in order that shift employees whose rest day falls on
a bank holiday receive the same benefit as those shift workers who are required to work
on a Bank Holiday: a paid day‟s leave.


Mr Mila believes that as his prescribed rest day for his shift fell on Christmas Day, in
accordance with the provisions of Article 11(1) and the decision of Renehan v G4S
Security Services (Jersey) Limited above, he should be entitled to a paid day‟s leave for
such Bank Holiday.


DECISION


The decision in Renehan v G4S Security Services (Jersey) Limited (2005) was reached in
order to ensure that shift workers, whose prescribed rest days in their shift patterns fell
on a Bank Holiday, enjoyed the same number of extra days paid leave due to public and
bank holidays over a year as those employees not affected by such shift working. The
Tribunal considered that the intention of the Article 11(1) of the Employment Law is clear:
employees should receive a minimum of 2 weeks paid leave PLUS all public or bank
holidays currently observed by the Public Holidays and Bank Holidays (Jersey) Law 1951.


In pursuance of Article 2 of the Public Holidays and Bank Holidays (Jersey) Law 1951, the
States of Jersey enacted the Public Holidays and Bank Holidays (Jersey) Act 1952, which
by a Schedule appointed the days to be observed as public holidays in each year. This
Schedule refers to Christmas Day as a general holiday. It also specifies which days are to
be observed as a public holiday if Christmas Day falls on a Saturday or a Sunday.


Article 13(1) of the Employment Law refers to payment in respect of periods of leave and
states that, „An employee shall be entitled to be paid in respect of any period of leave to
which he is entitled under Article 11, at the rate of a week‟s pay in respect of each week of
leave, reduced pro rota for shorter periods of leave.‟ Accordingly, leave granted under
Article 11(1) (b) of the Employment Law is paid leave.




                                             125
The Applicant‟s representative said that as Article 11 (1) (b) makes specific reference to
Christmas Day and then refers to all public or bank holidays under the Public Holidays
and Bank Holidays (Jersey) Law 1951, it should be treated differently. This 1951 law
specifically refers to Christmas Day as being a general holiday. It does not include it in
the Schedule of public holidays to be observed each year. The Tribunal is of the opinion
that Article 11(1) (b) of the Employment Law reflects the provisions of the Public
Holidays and Bank Holidays (Jersey) Law 1951: Christmas Day is a customary holiday and
should be given as a day off work, but is does not rank as a public holiday, which is why
specific days are given as public holidays when Christmas Day falls on a weekend.
Article 13 of the Employment Law recognises the concept that public holidays are
additional paid day‟s leave. Where Christmas Day falls on a normal working day,
employees are customarily paid for such day off by their employers. The Public Holidays
and Bank Holidays (Jersey) Law 1951 states that when Christmas Day falls on a weekend
a separate working day in the next week is to be given as a public holiday; this implies
that those weekend days are rest days. With shift workers, their rest days will not
necessarily fall on a weekend and the decision in Renehan, above, reflects this. In Mr
Mila‟s case, his rest day in the working week leading up to Christmas fell by coincidence
on Sunday 25th December 2005. This was the same as all those employees who work a
Monday to Friday week: Christmas Day fell on their rest day too, and those worker‟s rest
days are also unpaid. However Mr Mila‟s employer had decided to treat the 25th
December 2005 as a Bank Holiday and this complicates the issue. Mr Mila worked on
Tuesday 27th December 2005, the day given by the Public Holidays and Bank Holidays
(Jersey) Act 1952 as the public holiday to be given in lieu of Christmas Day when it falls
on a Sunday. He received from his employer a day‟s pay for the day he worked and a
day‟s paid leave in lieu. This complies with the provisions of Articles 11(1) (c) and 13 of
the Employment Law. The fact that he cashed in his extra day‟s leave for a day‟s pay is Mr
Mila‟s decision: his employers complied with the Employment Law.


The Tribunal hereby finds that the Employers were mistaken in treating the 25th
December 2005 as a bank holiday. As stated above the Public Holidays and Bank
Holidays (Jersey) Law 1951 gave the 27th December 2005 as the Bank Holiday to
compensate for the fact that Christmas Day fell on a Sunday, ordinarily a rest day.




                                             126
By treating the 25th December 2005 as a bank holiday, the employer gave all its employees
working that day the benefits as if it was really a Bank Holiday, in that they paid those
employees a day‟s work and gave them a day off in lieu.


The employer‟s decision to treat 25th December 2005 as a Bank Holiday, and in view of the
decision in Renehan, means that the Tribunal must find that as Mr Mila‟s rest day fell on
a bank holiday he is entitled to a paid day‟s holiday in lieu of such Bank Holiday. This
brings him into line with all the other employees of the Employer who worked on
Christmas Day.


If the employer had not made this mistake the Tribunal would have found that Mr Mila is
not entitled to receive a day‟s paid leave in lieu of Christmas Day 2005 as in fact it was a
rest day for him as many others in the working population because it fell on a Sunday and
the law gave Tuesday 27th December 2005 as a public holiday in lieu of it.


Mr Mila worked on the 27th December 2005 (the substituted public holiday) and he was
treated properly by his employers in accordance with the Employment Law and no further
monies are due to him in respect of that day worked.


AWARD


To Mr Mila, one day‟s paid leave, or one day‟s pay at the rate earned by him on 25th
December 2005.


NOTE
The Tribunal suggests that the employers express their bank holiday arrangements with
employees in writing in their contracts of employment and do not continue to leave such
policy to custom or practice.


Tribunal Note: The Tribunal is aware that this decision refers to Christmas Day which is a
Christian holiday. No offence is meant, or should be inferred against other religions or
persons who do not for whatever reason recognise or choose to celebrate Christmas Day.




                                             127
                              Jersey Employment Tribunal
Case Number:                 3010017/06
Applicant:            Mr Antonio Pereira
Respondent:           Camerons Limited


Case Summary:         Redundancy, unfair dismissal, fairness of selection, process and
                      procedures.


Hearing on:           26th June 2006


Before:               Mrs Nicola Santos-Costa, Deputy Chairman
                      Mrs Mary Curtis, Tribunal Member
                      Mr Paddy Kirwan, Tribunal Member


Representation:
For Applicant:        Mr Pereira represented himself through an Interpreter


For Respondent:       Mr Martin Holmes, Managing Director
                      Mr Stuart Brinkman, Accountant


Interpreter:          Mrs Elsa Fernandes


Witnesses:            None


FACTS


Mr Pereira worked as a labourer for the employer from 9th January 2001 to 13th January
2006.


During this time Mr Pereira worked on a number of sites under construction by
Camerons Limited („Camerons‟) as a labourer. In particular he worked on the „Casa
Melita‟ site during 2003 to 2004 where a Mr Alex Ray was site manager.




                                           128
During January to November 2005, Mr Pereira worked on the Links Halt development in
La Moye. By the beginning of November 2005, Camerons were starting to withdraw their
personnel from the Links Halt site as it was nearing conclusion and the remaining work
would be carried out mainly by sub contractors. Following a review of their projects it
was agreed that Mr Pereira and another labourer working on the Links Halt site, Mr
Martins, should be made redundant, as there was no available work for them to do on the
employer‟s projects. Mr Martins had been employed by Camerons for just over one year.


On 17th November 2005, Mr Pereira received with his wage packet, a letter terminating his
employment due to a „reducing workload‟ and giving him 4 weeks notice. Mr Martins
received a similar letter. Mr Pereira took advice and was informed that he was in fact due
8 weeks notice. He drew this to the attention of the employer and a second letter of
termination of his employment was sent to him, dated 14th December 2005 giving an
additional 4 weeks notice.


Mr Pereira was surprised and upset that his 5 years of employment was terminated in this
fashion. He gave evidence that he always worked hard, turned up on time and never
caused any problems with his work. Mr Holmes, on behalf of Camerons Limited agreed
that there were no problems with his disciplinary record, attendance or abilities at work.


During this period of notice Mr Martins was offered a job on the site at the Hospital
being constructed by Camerons. Accordingly his period of notice was terminated.


Mr Pereira asked on Mr Bob Matthews, the head of construction at Camerons, whether
there was any work for him within the company. Mr Matthews replied that there was not.
Mr Pereira had witnessed people working late and at weekends at various sites that
Camerons were developing during this time and felt that there was work for him. The
Tribunal heard evidence that these were probably subcontractors or persons working in
established teams on various sites. It was explained to the Tribunal that Mr Martins had
been chosen by Mr Alex Ray to be a labourer on the Hospital site over Mr Pereira. Mr Ray
is the manager of the Hospital site and in charge of choosing his team. The Tribunal heard
that once a team is in place on a site it would be unusual for Camerons to interfere with it
or break it up. It was explained that the 2 or 3 people employed by Camerons who were
taken off the Links Halt development at the same time as Mr Pereira and Mr Martins,



                                            129
were however absorbed into other existing teams as their skills were needed on those
sites.


Mr Holmes gave evidence that a summary document setting out management
considerations when deciding whether to select Mr Pereira or Mr Martins for redundancy
had been prepared by him recently based on the verbal reports of Mr Bob Matthews of
conversations he had had with the site managers of the Waterfront Hotel site, Hospital
site and St Clements School site, all of whom knew both Mr Pereira and Mr Martins. In
fact the decision had been made by Mr Matthews alone, although Mr Holmes was aware
of the necessity to lose the services of one labourer. One of the major factors on which Mr
Pereira lost „points‟ to Mr Martins was that apparently Mr Pereira could not speak English
and had little understanding of spoken English. This was disputed by Mr Pereira who
admitted that whilst he did not like to speak English, he had developed a good
understanding of it over the years and this had caused no problems when he worked
alongside English speaking tradesman or others on site, and indeed he had translated
many issues for workers. It was also noted that Mr Pereira had „no significant‟
relationship with Mr Alex Ray, the Hospital site manager, whereas Mr Martins had an
„exceptional‟ record with Mr Ray.


The Tribunal heard evidence that in November 2005, Cameron‟s employed 13 labourers of
a similar skill set to Mr Pereira (10 of whom were of foreign nationality, and 1 of whom
had a similar understanding of the English language as Mr Pereira). The Company was
operating eight projects at that time.


The Tribunal was informed that by June 2006 the Company was operating 6 projects and
employing 11 labourers of a similar skill set to Mr Pereira, 6 of whom are of foreign
nationality.


The Tribunal heard evidence that apart from the two letters which Mr Pereira received
referring to the termination of his employment and the chance meeting Mr Pereira had
with Mr Matthews, at which he asked for work within the company, and pointed out that
he was due a longer notice period, there has been no contact between the Company and
Mr Pereira regarding his redundancy.




                                            130
Mr Pereira brought three issues to the Tribunal‟s attention:


                   -   That he is entitled to outstanding notice pay pursuant to article 56
                       of the Employment (Jersey) Law 20053 („the Law‟)
                   -   That he is entitled to outstanding holiday pay from the years 2004
                       and 2005, pursuant to article 86 of the Law
                   -   That he was unfairly dismissed pursuant to article 64(4) of the Law.


ISSUES AND DECISIONS


1. Issue 1 – Outstanding notice pay pursuant to article 56 of the Law.
On production of detailed documentary evidence by Camerons Limited it was agreed by
both parties that Mr Pereira‟s period of continuous employment commenced on 9th
January 2001, and not the 19th October 2000, and that Mr Pereira by receiving 8 weeks
notice on termination of his employment had received an adequate period of notice.
Accordingly Mr Pereira‟s claim for outstanding notice pursuant to article 56 of the Law is
dismissed.


2. Issue 2 – Outstanding holiday pay pursuant to article 86 of the Law for the years 2004
and 2005.


The Employers agreed that during 2004 they had not paid Mr Pereira‟s holiday leave at the
rate stipulated in his contract of employment, in particular the Federation Conditions. It
was agreed that the sum of £129.25 was due to Mr Pereira in respect of his holiday pay
during 2004.


The Employers produced documentary evidence to show that Mr Pereira‟s holiday
entitlement in 2005 of 9 days was paid to him correctly with his wages on 11th December
2005 and with his final pay check on 18th January 2006. Accordingly no sum remains due
to Mr Pereira in respect of his holiday during 2005.




                                            131
DECISION


In respect of Mr Pereira‟s holiday entitlement in 2004, the sum of £129.25 is hereby
awarded to him.


In respect of Mr Pereira‟s holiday entitlement in 2005, the claim for outstanding holiday
pay is hereby dismissed.


               -       Issue 3 – Was Mr Pereira unfairly dismissed pursuant to article 64
                       of the Law?


Article 64 requires an employer to show the reason for the dismissal when the fairness or
unfairness of that dismissal is being considered. The fact of an employee‟s redundancy is
considered to be a potentially fair reason for dismissal.


Redundancy is defined by Article 2 of the Law, as existing where, „the dismissal is wholly
or mainly attributable to … the fact that the requirements of that business … for
employees to carry out work of a particular kind … have ceased or diminished or are
expected to cease or diminish.‟


The Tribunal heard evidence from the Employer‟s that a management assessment of the
work they had on their books both in November 2005 and in the foreseeable future, meant
that they no longer needed the services of one of the Company‟s labourers. Mr Pereira‟s
dismissal was caused by this decision. Accordingly the Tribunal finds that the reason for
Mr Pereira‟s dismissal was that he was made redundant.


Article 64 (4) of the Law requires the tribunal to assess whether this dismissal was fair or
not, and this shall be determined, bearing in mind the reason for dismissal by assessing:
      whether in all the circumstances including the size and administrative resources
       of the Company‟s business, the Company acted reasonably or not in treating the
       lack of labouring work as a sufficient reason for dismissing Mr Pereira, and
      by considering equity and the substantial merits of the case.




                                             132
The Tribunal pointed out in Goguelin v Stuart Banks (Carpenters & Builders) Limited
2005 that is not concerned with the reason for a redundancy (that is for the managers of
the business to decide upon) but it is interested in the fairness of the decision to select Mr
Pereira for redundancy above other employees, using the criteria set out in article 64 (4)
above. Accordingly the Tribunal have looked at the facts in order to assess whether the
Company acted reasonably in selecting Mr Pereira for redundancy.


The decision to select Mr Pereira for redundancy was not based on automatically unfair
grounds, such as trade union membership, so article 70 of the Law does not apply.


Mr Pereira was selected for redundancy because Camerons had no need of the services of
one labourer and it was decided that, Mr Pereira, based on Mr Matthews chats with three
managers of the sites that Mr Pereira and Mr Martins had worked on, had a poorer grasp
of spoken and written English than Mr Martins and a less well established relationship
with Mr Ray. It appears that no notes were kept of these assessments on Mr Pereira and
Mr Martins and the document produced to the tribunal setting out the comparative
„scores‟ of these labourers was prepared some months later by Mr Holmes based on Mr
Matthews‟ recollection of verbal reports received in November 2005. The Employer only
compared Mr Pereira to Mr Martins; it totally disregarded the other 12 labourers with
comparable skill sets employed by Camerons at that time. The reason for this was that the
management of Camerons is reluctant to break up established teams on construction sites.
The Tribunal is willing to accept that this may be a consideration with the Prison
construction site as it heard that it can take up to 8 weeks to get security clearance for an
employee to work on that site, but the Employer seemed able to reabsorb the skills it
wanted to retain from the Links Halt development into other, established teams without
any difficulty. Further we are discussing the position of a labourer here and in the
absence of a direct personality clash or prior conflict (the Tribunal heard that there was no
such complaints about Mr Pereira), it is difficult to see why such an employee cannot slot
in to whichever team he is directed to join. At a time of full employment, an employer can
allow a manager to select his worker‟s based on personal preference but this is not a fair
system when a person may lose his job. The scoring system set up by Mr Holmes to
reflect Mr Matthews‟ considerations was in the opinion of the Tribunal nonsensical; it
failed to take into account Mr Pereira‟s 5 years service against Mr Martins one years
service and failed to reflect a maximum possible score. The fact that Mr Pereira‟s spoken



                                             133
English was perceived as poor was not a good enough reason for him to be chosen for
redundancy. He had passed all Health & Safety tests to that point and no complaints had
been received that his reluctance to speak English affected his work. Mr Pereira knew a
large number of people in Camerons, and had worked on a lot of their sites. He had a
great deal of labouring experience. Mr Holmes gave evidence that there was no doubt
about Mr Pereira‟s abilities, disciplinary record or attendance.
Apart from the poor selection process described above, the Tribunal was also
disappointed to note that Camerons initiated no consultancy process leading up to or after
Mr Pereira‟s redundancy. Mr Pereira was simply given a letter terminating his
employment with his weekly pay packet. There was no personal contact with Mr Pereira
other than a chance meeting with Mr Matthews instigated by Mr Pereira where he asked
for more work. Mr Pereira had worked for Camerons for 5 years and was described by the
employer as one of their longstanding employees. The Tribunal would have expected a
company of the size of Camerons to have conducted a redundancy interview with Mr
Pereira at which the reasons for his redundancy would have been discussed and
explained, there should have been a consultancy period during which Mr Pereira should
have been advised of his way forward and alternative employment in the Company
looked at and the possibility of retraining discussed.


DECISION & AWARD


The Tribunal finds that Mr Pereira was made redundant by Camerons without a fair
selection process being followed and in the absence of any consultation whatsoever.
Whilst the Tribunal accepts that Camerons acted without malice, the actions of its
management team show a disregard for the loyalty of an employee of 5 years standing and
a disrespect to an individual who had no reason to suspect that he would not be able to
carry on working for Camerons Limited over and above employees of less experience and
service.


For these reasons the Tribunal finds that Camerons Limited acted unfairly in dismissing
Mr Pereira from his job and accordingly that Mr Pereira was unfairly dismissed.




                                             134
AWARD


Mr Pereira had worked for Camerons Limited for over 5 years and in accordance with the
provisions of the Employment Awards (Jersey) Order 2005, the Tribunal hereby awards 26
weeks pay to Mr Pereira.


= £364.14 gross per week x 26 weeks = £9,467.64


Schedule of Awards


Issue 2 - Balance of Holiday pay due from 2004                    £129.25
Issue 3 - Award in respect of unfair dismissal claim                   £9,467.64
                                                       Total    £9,596.89




                                            135
                                Jersey Employment Tribunal
Case Number:           0504052/06


Applicant:             Mr Joao Nunes
Respondent:            Teixeira Holdings Limited t/a Seascale Hotel


Case Summary:          Continuity of employment; fixed term contracts; unfair dismissal;
                       burden of proof; holiday pay.


Hearing on:            28th June 2006


Before:                Mrs Nicola Santos-Costa, Deputy Chairman
                       Mr Tim Langlois, Tribunal Member
                       Mr Peter Woodward, Tribunal Member


Representation:
For Applicant:         Mr Nunes represented himself through a translator, Mr Carlos
                       Borralho.
For Respondent:        Mr Antonio Teixeira, Owner of Business.


Witnesses:
For Applicant: Mr. Joao Lopes
For Respondent:        Mr Carlos Borralho
ISSUE 1 – Continuity of Employment and Unfair Dismissal


Mr. Nunes was the Head Chef of the Seascale Hotel from 23rd April 2002 to 2nd April 2006,
the date of expiry of his notice. At that time there were two other chefs at the hotel and
two kitchen porters.


Mr. Nunes and Mr Teixeira had an extremely volatile relationship and it was not unusual
for them to have arguments in the kitchen over Mr. Nunes‟ performance. Mr Teixeira gave
evidence that Mr. Nunes was in his opinion, an alcoholic, often drinking up to 20 cans of
Guinness a day whilst on duty. Mr. Nunes denied this claim completely and said that he
would not be able to work in the kitchen if he was drunk. Evidence was heard from a



                                            136
waiter Joao Lopes, that Mr. Nunes was often drunk in the kitchen but that it was not
unusual for chefs to have a few drinks whilst working. Mr Teixeira complained that Mr.
Nunes‟ drinking meant that food was often sent out late by the kitchen and below
standard. Mr. Nunes denied that this was true. Mr. Lopes admitted in evidence that he
had seen this happen. Mr. Nunes sought to discredit Mr. Lopes‟ evidence by stating that
as Mr. Lopes wanted to keep his job he was bound to agree with Mr Teixeira. After Mr.
Nunes‟ dismissal, he worked for Empire Catering on a consultancy basis and evidence
was heard by Mr. Carlos Borralho, the Food and Beverage Manager, of Empire Catering,
that Mr. Nunes was a fine chef whom he had no hesitation in hiring, and had not
witnessed him drunk on the occasions he had worked for Empire Catering.


Mr Teixeira admitted that he had not disciplined Mr. Nunes about his drinking at work or
occasional poor performance. He stated that he was aware of the JACS guidelines
regarding the need to keep records of disciplinary matters but had failed to do so. This
was because the families of Mr. Nunes and Mr Teixeira knew each other in Madeira and
he did not want it to cause any difficulties between them by being seen to treat Mr. Nunes
harshly. He explained to the Tribunal that this is also why he had not demoted Mr. Nunes
to second chef or indeed sacked him.


During March 2006 there was another argument between Mr Teixeira and Mr. Nunes
about Mr. Nunes‟ performance. Mr Teixeira was also upset that Mr. Nunes refused to sign
a Statement of Terms of Employment which Mr Teixeira presented to him. The Tribunal
heard conflicting reports of what happened during that argument: Mr Teixeira said in
evidence that Mr. Nunes said he wanted to leave the Seascale Hotel and gave him two
weeks notice. Mr. Nunes said in evidence that Mr Teixeira said words to the effect that, „if
you‟re not happy here, why don‟t you find another job‟ and gave him two weeks notice.
Neither party brought any witnesses to support their evidence even though they agreed
that the argument was in the kitchen in front of the staff. Despite detailed questioning
from the Tribunal it was not possible to clarify whether Mr Nunes had resigned or been
dismissed.


Mr. Nunes considered that he had been unfairly dismissed and applied to the Tribunal.




                                            137
In order to consider whether Mr. Nunes had been unfairly dismissed the Tribunal had to
consider the continuity of Mr. Nunes‟ employment.


Mr Teixeira considered that Mr. Nunes had been employed from 8th February 2006 (the
start of the 2006 season) to the 2nd April 2006 (the date of expiry of Mr. Nunes‟ notice.)
This amount to 7½ weeks employment.


Mr. Nunes considered himself employed from the 23rd April 2002 (the first season he
worked for Mr Teixeira) to the 2nd April 2006 (the date of expiry of his notice.) This
amounts to a period just short of 4 years.


In order to bring a claim for unfair dismissal, an employee must have been continuously
employed for 26 weeks or more ending with the effective date of termination of his
employment (article 73 of the Employment (Jersey) Law 2003, „the Law‟). In this case the
effective date of termination is the 2nd April 2006.


Article 57 (2) of the Law states that „any week during which the whole or part of which the
employee‟s relations with his employer are governed by a contract of employment [for 8
hours or more weekly] shall count in computing a period of employment‟.


Mr Teixeira had prepared a Statement of Main Terms of Employment in accordance with
article 3 of the Law and presented it to Mr. Nunes. The fact that Mr. Nunes refused to sign
it is irrelevant to Mr Teixeira‟s compliance with article 3 above: that it is given to the
employee is sufficient for compliance with the provisions of that article. Any complaints
about the terms contained in that document must be addressed by the employee with the
employer directly, or through a third party, such as JACS or the Tribunal. In any event a
contract of employment existed between the employer and Mr. Nunes.


The Tribunal heard evidence from Mr Teixeira that he did not prior to the introduction of
the Law issue contracts of employment for each season. Indeed the Statement of Main
Terms referred to above does not specifically refer to the 2006 season. Instead Mr Teixeira
made separate arrangements for each season. His staff would start the season during the
second or third week of February and work through until the middle of December. The
hotel would close for approximately two months. At the end of the season he would pay



                                              138
his staff their holiday entitlement, give a bonus and usually buy their return air ticket
home for the period the hotel was closed. This period was treated as unpaid time off
work. Mr Teixeira gave evidence that by arrangement Mr. Nunes kept his staff bedroom
in the hotel during this period for no charge: these arrangements were made with a view
to Mr. Nunes resuming his duties as a chef when the hotel opened again. Mr. Nunes
agreed that these were the arrangements and added that he treated this time as a holiday
and never worked for anyone else during this period. The parties agreed that when the
season started again, Mr. Nunes worked as a chef on the same terms as before; there was
apparently never any conversation about his salary or other conditions of work.


Article 57 (4) of the Law states that:



57   Computation of period of employment

       (4)   If –
             (a)    a fixed term contract of employment has expired in accordance with its
                    terms; and
             (b)    another fixed term contract of employment is entered into by the same
                    parties which takes effect not more than 26 weeks after the expiry of the
                    previous fixed term contract of employment,

             the interval between the two periods of employment shall not be taken to
             break the period of employment when computing its length, but the length of
             the interval shall not be counted in the computation.



The Tribunal is satisfied that Mr Nunes worked as a chef under a series of fixed term
contracts from 23rd April 2002 and that a period of no more that 8 – 10 weeks ever
separated them.



DECISION



Mr Nunes was employed as a chef under a series of fixed term contracts commencing on
23rd April 2002 until the date of expiry of his notice on 2nd April 2006, in accordance with
article 57 (4) of the Law.




                                              139
The Tribunal finds that Mr Nunes has been continuously employed by the Employer for a
period of just under 4 years and accordingly may bring a claim for unfair dismissal
pursuant to article 73 of the Law.



Article 64 (1) of the Law states that;


64   General

       (1)   In determining for the purposes of this Part whether the dismissal of an
             employee is fair or unfair, it shall be for the employer to show –
             (a)   the reason (or, if more than one, the principal reason) for the dismissal;
                    and
             (b)   that it is either a reason falling within paragraph (2) or some other
                   substantial reason of a kind such as to justify the dismissal of an
                   employee holding the position which the employee held.


The Tribunal would draw attention to the words underlined above – „it shall be for the
employer to show..‟. This means that the employer has the burden of proving the reasons
for the dismissal.


In this case not only did the employer not show the reason for the dismissal he also failed
to show that Mr Nunes had resigned as he claimed. Mr Lopes attended as a witness at the
Tribunal‟s strong suggestion given during the hearing because the evidence was so
contradictory. The Tribunal is willing to provide an accessible and informal method of
resolving employment disputes and will endeavour to avoid formality in its proceedings
but it must be understood that in an unfair dismissal claim, the employer has the burden
of satisfying the Tribunal that there was a potentially fair reason for dismissal.



The parties must take a complaint to the Employment Tribunal seriously and prepare
their case. It is not sufficient where the evidence is clearly (on the face of the employee‟s
application form and the employer‟s response) disputed, for a party to turn up without
witnesses and / or documentary evidence and expect to have their word believed. This is
especially true of employers as they have the added burden of proving that the reason for
the dismissal is potentially fair. It is not until the Tribunal looks over the substantial
merits of the reason for the dismissal that this burden of proof changes.




                                             140
Mr Teixeira failed to show the Tribunal that he did not dismiss Mr Nunes as claimed. The
Tribunal heard no evidence to show that Mr Nunes resigned as claimed. The Tribunal
heard evidence that Mr Nunes was often drunk on duty but Mr Teixeira maintained that
he did not sack him, that Mr Nunes resigned. This is contradictory.

Therefore it is the Tribunal‟s decision that in this case the Employer failed to show that:

      Mr Nunes resigned as Head Chef, and

      There was a potentially fair reason for Mr Nunes dismissal.

Accordingly the Employer has failed to discharge the burden of proof open to him and the
Tribunal has no choice but to find that Mr Nunes was unfairly dismissed.



AWARD

Mr Nunes had worked for the Employer for more than 3 but less than 4 years and in
accordance with the provisions of the Employment Awards (Jersey) Order 2005, the
Tribunal hereby awards 16 weeks pay to Mr Nunes.

                      = £364.90 gross per week x 16 weeks = £5,838.40

ISSUE 2 – Holiday Pay



A. Mr Nunes made a claim for a day‟s pay in respect of August Bank Holiday 2005 which
he had worked but not been paid. This was agreed by Mr Teixeira.



AWARD

Mr Nunes received £364.90 gross per week. He was expected to work a 42 hours week over
6 days a week. This results in him earning £8.68 per hour. Mr Nunes worked 7 hours a
day, so a day‟s pay was:

                                  £8.68 x 7 hours = £60.81



B. During the 2006 season Mr Nunes was entitled to 2 weeks paid leave. Mr Nunes
worked from 8th February to 2nd April 2006. The Tribunal has taken the season to be 10
months or 44 weeks long. This means that for the 7½ weeks worked by Mr Nunes he was
due to receive 2.38 days holiday leave; by article 11 (4) of the Law this has to be rounded
up to 3 days. Mr Nunes only received 2 days holiday pay with his final wages.




                                             141
AWARD

Mr Nunes is awarded a further days‟ paid holiday which in accordance with his
entitlement as described above, amounts to £60.81



                                        -------------

                                   Schedule of Awards


Issue 1 –Unfair Dismissal                                       £5,838.40

Issue 2 – Holiday Pay

                        Award A – Bank Holiday                    £60.81

                        Award B – 1 days‟ Leave                   £60.81



                                                        TOTAL   £5,960.02




                                            142
                               Jersey Employment Tribunal


Case Number:          0501003/06


Applicant:            Mr Thomas Brown
Respondent:           Mr F Gerald Voisin
                      t/a Voisins Department Store


Case Summary:         Redundancy, unfair dismissal, fairness of process and procedures.


Hearing on:           3rd – 6th July 2006


Before:               Mrs Nicola Santos-Costa, Deputy Chairman
                      Mr Samuel Le Breton, Tribunal Member
                      Mr Peter Woodward, Tribunal Member
Representation:


For Applicant:        Mr Brown represented himself
For Respondent:       Advocate Michael Preston of Voisin & Co.


Witnesses:
For Applicant:        Ms Georgina Platten, Store Operations Manager
                      Ms Alison Le Vesconte, Personnel Manager
                      Mr. William McDermott, Finance Manager


For Respondent:       Mr F Gerald Voisin.


The Facts


Mr Brown joined Voisins Department Store on 25th January 1999 as a Commercial
Manager. He was in charge of the operational aspects of the sales side of the business.


On the 1st August 2001 Mr Brown was appointed General Manager of the Store. Whilst
this was not a new post it was reactivated for Mr Brown and he was not replacing anyone



                                            143
else in the position. As General Manager Mr Brown was in charge of the general
operations of the entire store.


Mr Voisin operates the business of the Store as a sole trader. Accordingly he is the
proprietor of the business and he informed the Tribunal, not employed by the business.


In December 1999 Mr Voisin entered the States of Jersey as a Deputy. As his experience
and knowledge of the government system increased, he decided to become more involved
in the politics and government of the Island. Eventually Mr Voisin became President of
the Economic Development Committee. This increasing involvement in the States was
reflected in the decision to reactivate the role of General Manager, although evidence was
heard from Mr Brown that he would often see Mr Voisin in his office in the business
before the store opened and after closing dealing with business matters. The Tribunal
were also informed that Mr Voisin would frequently attend meetings of the Senior
Management Team (SMT), always attended meetings of the Board (see below) and had a
good working relationship with Mr Brown with mutual respect on both sides.


On the 12th April 2002 Mr Voisin drew up a Memorandum of Understanding whereby the
roles, relationships and responsibilities of Mr Voisin, the SMT, the Board and Mr Brown
were described and agreed upon. This agreement allowed the SMT to manage the
business of the store, whilst keeping Mr Voisin fully informed of the progress and
operation of the business and acknowledging Mr Voisin‟s role as sole proprietor of the
Store. The agreement also recognised Mr Brown as the leader of the SMT and appointed
him to the Board. The Board comprised Mr Voisin and two other non-executive directors.
Mr Brown at that point was the only executive director. This senior role was reflected not
only by Mr Brown‟s high salary but also that he was eligible for a bonus based on profit.
Voisins Department Store held a „J‟ Category housing licence for him and he was locked
in to 12 months notice by either side in his contract of employment. The purpose of the
Board was to oversee policy, and to provide strategic oversight and general direction in
the operation of the business. The SMT implemented those policies and the business plan
as approved by the Board. All members of the SMT reported to Mr Brown and he in turn
reported to the Board. At that time the SMT consisted of the finance manager, the store
merchandise manager, the business development and Voisins@Home manager, the
marketing manager, the personnel manager and the store operations manager. The buyers



                                           144
reported directly to Mr Brown. In due course the finance manager and the personnel
manager, at Mr Brown‟s suggestion, were appointed as executive members of the Board,
although both managers continued to report to Mr Brown on an operational basis.


During 2004 Voisins Department Store expanded rapidly, including taking over and
refurbishing an old warehouse site as selling space and the old Brennans Langlois
showrooms for Voisins@Home. This expansion was approved by the Board and
implemented by Mr Brown. Mr Voisin was a States Member throughout this period.


By mid 2005 Mr Voisin was concerned that the business was not achieving its projected
sales targets and thereby profits and knew that the business would have to cut costs. He
was also becoming aware that his States work was taking up a great deal of his time and
Mr Voisin began to think of not running for re-election to the States. Accordingly Mr
Voisin met Mr Brown and through a series of meetings identified 11 people who should
be made redundant. A deliberate decision was made not to make redundancies from the
shop floor staff as they can drive sales up, so the pool of non-selling staff was considered.
Out of the 11 staff identified, seven people left for voluntary, natural reasons so
eventually only four members of staff were made redundant in July 2005. Mr Voisin left
the process of the redundancy to Mr Brown who conducted it with the Personnel
Manager, Ms Le Vesconte. Between them they informed the relevant staff members of the
situation, offered them their notice in one lump sum and allowed them to leave
immediately. At the suggestion of Mr Brown, Ms Le Vesconte took advice from JACS
before starting the round of redundancies.


Mr Voisin was still concerned about the business‟ sales figures. As a sole trader, Mr
Voisin is responsible for the debts of the business. It became apparent to Mr Voisin that
further substantial cuts in costs would have to be made. Again, Mr Voisin decided not to
make redundancies from the sales staff and instead looked at the marketing costs and the
salaries of the SMT. Mr Voisin reviewed the role of each member of the SMT and
concluded that:
The buyer in ladies wear & lingerie was too experienced to loose and this is a difficult
area to recruit in.
The buyer in Voisins@Home was also very experienced and also now doing the work of a
person lost in the July redundancies



                                             145
The personnel manager was experienced and performed well in her part time role
The store operations manager was experienced and performed an important function in
the store
The finance manager was essential to the operation of the business
He could largely assume the functions of the General Manager and delegate those other
functions which he could not perform to members of the SMT, thus making a saving.


Accordingly, Mr Voisin decided to make Mr Brown redundant. Realising the importance
of this decision Mr Voisin travelled to England in early September 2005 to discuss his
decision with a non-executive member of the Board, experienced in managing businesses
like Voisins Department Store.


Mr Voisin gave evidence that he considered during this time whether Mr Brown should
be offered the Store Operations Manager role instead but as that would involve
essentially a demotion and a 55% cut in salary, he did not think Mr Brown would accept
it. Also his present Store Operations Manager had always had good appraisals so there
was no obvious reason to lose her. He also discussed this proposal with the non-executive
Board member whilst he was in England.


On his return to Jersey and following a discussion with the other non-executive Board
member, Mr Voisin decided to make the post of General Manager redundant in order to
save costs and not to offer the role of Store Operations Manager to Mr Brown.


Mr Voisin gave evidence to the Tribunal that whilst he was aware of JACS and its
purpose, he did not contact them for advice about this matter or follow any other advice.
He also did not consult with Ms Le Vesconte for advice during this time, or discuss his
decision with any other members of the SMT who were all subordinate to Mr Brown.


There was a proposal in the business at that time that Mr Voisin, Mr Brown and the
finance manager would personally invest in a new concession coming into the store. A
meeting to discuss this investment was planned for 7th September 2005. Mr Voisin felt
that he could not let Mr Brown commit to this investment without knowing that he was
going to lose his job, so on the 7th September 2005, before that meeting took place Mr
Voisin informed Mr Brown that he needed to save substantial costs (NB Figures were



                                           146
supplied to the Tribunal but have been left out of this judgment for reasons of
confidentiality – Chairman) and that he was „going to have to let [him] go‟. Mr Voisin told
Mr Brown not to tell anyone about the situation, commented that he did not look
surprised and suggested a further meeting on Friday 9th September 2005. Mr Brown gave
evidence, which was contested by Mr Voisin, that Mr Voisin also said, “we can only have
one General Manager”. There was also a brief discussion about the flat that Mr Brown
lived in which was owned by Mr Voisin. The meeting took 10 minutes. This was not
disputed by Mr Voisin. In fact the next meeting was arranged for Monday 12th September
2005. Mr Brown kept notes of that meeting, unfortunately Mr Voisin had destroyed his
notes thinking the matter was concluded, but did acknowledge that Mr Brown‟s notes
were an accurate reflection of their meetings. This second meeting took one hour and
started by Mr Voisin stating that its purpose was to establish Mr Brown‟s leaving date. To
Mr Brown‟s question, Mr Voisin gave reasons for making the general manager‟s post
redundant as being purely financial based on a need to save £ [withheld - Chairman]
throughout the store in order to meet existing financial commitments. In fact Mr Voisin
tasked Mr Brown with the finance manager to find the outstanding balance of these
savings out of the 2006 budget. Mr Voisin described Mr Brown as being in a „pool of one‟;
his was a unique role in that he was a level of management which existed above the SMT,
consisting only of him, and his special role was reflected in the terms of his employment
which no other member of staff enjoyed. Mr Brown pointed out to the Tribunal that other
members of the SMT had departments reporting to them and that the finance manager
was also included in the bonus scheme incentive. Mr Voisin denied that there was
duplicity between his role and Mr Brown‟s. The meeting moved on to the terms of Mr
Brown‟s redundancy with Mr Voisin explaining that Mr Brown‟s 12 month‟s notice would
be effective from the 28th September 2005 and he would like Mr Brown to work in store to
the end of November and then be on „garden leave‟ to the end of his notice. This would
mean that Mr Brown could not work for anyone else in the meantime. Mr Brown
requested to be released earlier in return for a lump sum, Mr Voisin countered that there
would have to be a financial incentive for the business to pay a lump sum. It was agreed
that Mr Voisin would draw up a proposal and it would be discussed at a further meeting
on 16th September 2005. Mr Brown expressed a willingness to stay for some weeks and Mr
Voisin said how sorry he was about the situation.




                                            147
The meeting of the 16th September 2005 resulted in Mr Voisin sending Mr Brown a letter
setting out 2 options or redundancy packages for him to consider. Both involved Mr
Brown being released from his notice period earlier in return for a discounted lump sum.


Mr Brown responded with a 3rd Option which involved him being paid (inter alia) for the
full period of 12 month‟s notice and receiving a bonus based on 2007 figures. On the 27th
September 2005, this option was agreed by the parties and they shook hands. However on
the 28th September 2005 Mr Voisin told Mr Brown he had reconsidered the situation and
this option was in fact too expensive for the business and he was withdrawing from it. Mr
Brown was annoyed by this change of mind. However the next day he agreed to the
package referred to as Option 1 above, and an agreement was drawn up by the parties on
the 30th September 2005.


Mr Brown received a lump sum on the 1st December 2005 in lieu of notice and his
employment ended with Voisins Department Store on 28th December 2005.


Mr Brown considered that:
His role in the business had not been made redundant in accordance with article 2 of the
Employment (Jersey) Law 2003 („the Law‟), and / or
He had been unfairly dismissed pursuant to article 64 of the Law.


THE ISSUES


1. Was Mr Brown redundant in accordance with Article 2 of the Law?


Article 2 of the Law gives the meaning of „redundancy‟. The circumstances described in
article 2 (1) (b) (i) apply to Mr Brown. Accordingly the Tribunal has been asked to
consider whether:


(1)    For the purposes of this Law an employee who is dismissed shall be taken to be
dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –
…
(b)   the fact that the requirements of [that] business –
(i)   for employees to carry out work of a particular kind ...



                                             148
     … have ceased or diminished …


The employer‟s lawyers put great emphasis on the fact that article 2 (1) (b) (i) refers to the
need for employees to carry out work. Advocate Preston pointed out that Mr Brown was
employed by the business and although Mr Voisin assumed many of Mr Brown‟s duties,
he is not an employee of the business because he is the proprietor of it. Clearly Mr Voisin
makes a living out of the business but this is by way of drawings not wages or salary. The
Tribunal accepts this is how Mr Voisin operates his business and indeed he is not an
employee of it.


In considering this matter the Tribunal has followed the decision in Safeway Stores plc v
Burrell [1997] 1RLR 200 and has used the 3 point test of redundancy set out in that
decision –


Was the employee dismissed?
If so, had the employer‟s requirements for employees to carry out work of a particular
kind ceased or diminished?
If so, was the dismissal of the employee caused wholly or mainly by that state of affairs?


The Tribunal also considered the House of Lords decision in Murray v Foyle Meats
Limited [1999] 3 All ER 769, which accepted and applied the test in Safeway Stores above
and went on to state that a tribunal must bear in mind the word „attributable‟ (contained
in paragraph 1 of article 2 of the Law in Jersey) so that if a dismissal of an employee is
attributable to a diminution of the employer‟s needs for employees, then it is irrelevant to
consider either the contractual obligations or the functions which the employee
performed.


On the basis that:


Mr Brown was dismissed with effect from 28th December 2005
Mr Voisin decided that he no longer required an employee to perform the majority of the
functions of General Manager because he was able to undertake them himself and thus
save costs, and he was not an employee of the business
Mr Brown‟s dismissal was attributable, if not caused, by that decision of Mr Voisin „s,



                                             149
DECISION


The Tribunal finds that Mr Brown was dismissed by reason of redundancy pursuant to
article 2 of the Law.


2. Was Mr Brown‟s dismissal by reason of redundancy fair or unfair in accordance with
article 64 (4) of the Law?


Having decided that the reason for Mr Brown‟s dismissal was that he was redundant, the
Tribunal must now decide whether the dismissal was fair or not and such determination
shall be in accordance with article 64 (4) of the Law, which states as follows:


(4)       Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to the
reason shown by the employer) shall –
(a)    depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
(b)   be determined in accordance with equity and the substantial merits of the case.


In cases of redundancy, when looking at the fairness of the dismissal, the Tribunal shall
consider in particular whether the employee was fairly selected for redundancy and fairly
consulted regarding his redundancy process.


In Polkey v A.E. Dayton Services Limited [1988] AC 344, HL, Lord Bridge stated that “…
in the case of redundancy, the employer will normally not act reasonably unless he warns
and consults any employees affected or their representatives, adopts a fair decision on
which to select for redundancy and takes such steps as may be reasonable to minimise a
redundancy by redeployment within his own organisation”.


This is not a substitution for the overriding test of fairness set out in article 64 (4) (a) and
(b), but it is an indication of the ordinary principles of fairness to be applied in
redundancy cases.



                                              150
In Goguelin v Stuart Banks (Carpenters & Builders) Limited (2006) the Tribunal set out 4
basic principles of fairness „which should always be considered‟ in situations of
redundancy:
The duty to consult the employee
The duty to warn of redundancy
The duty to establish fair criteria for the selection of employees
The duty to explore alternatives to redundancy.


The employers‟ lawyers chose to emphasise the word „considered‟ in the Tribunal
judgment above. This is an incorrect emphasis; these are the core factors which must exist
before an employer can be regarded as having acted fairly. Therefore the correct emphasis
is which should always be considered in situations of redundancy.


The Tribunal has considered these four elements in turn.


Warning & Consultation


The purpose of consultation is to provide an early opportunity for all concerned to share
the problems and explore the options. When faced with redundancy – losing your job
through no fault of your own – the acceptable alternative ways of tackling the problem or
of minimising hardship, which can be offered by representatives or the employees
themselves, can be surprising. Through consultation the employer can find himself in a
better position to consider whether the needs of the business can be met in some other
way other than by dismissal of employees. Accordingly consultation should begin in
good time and be completed before any redundancy notices are issued. Consultations
must be conducted with an open minded approach; the employer must not only have this
approach but display it too. A standard redundancy procedure broadly involves three
stages:


The employer must warn the employee, preferably in writing, that it is contemplating
dismissing that employee and give detailed reasons.
The employer must hold a meeting with the employee to discuss the matter before
notifying the employee of the decision and the right to appeal against that decision.



                                             151
If the employee does appeal, a further meeting must be held and the employee informed
of the final decision.


In this case Mr Voisin had made up his mind to make Mr Brown redundant before their
first meeting on the 7th September 2005. Mr Voisin gave evidence that he considered Mr
Brown‟s redundancy the „only option‟ to save costs and he travelled off the Island to
discuss it with a fellow non-executive director. Mr Voisin said that he did not discuss the
matter with Mr Brown in advance of the 7th September as he did not want to worry him or
distress him. He also did not tell him that he had discussed it with the non-executive
director. The fact is that redundancy is a brutal subject and shocking to those under
consideration. Mr Voisin should have warned Mr Brown that the post of General
Manager was under consideration for redundancy, explained his reasons why and asked
Mr Brown to come up with some suggestions regarding saving the necessary costs.
Evidence was heard that as General Manager, Mr Brown was privy to all the information
about the business; he was a trusted and experienced manager and a confidante as well as
a member of the Board. Mr Voisin may have been surprised by the results of the
discussion – from perhaps a new costs saving perspective to Mr Brown wanting to take a
sabbatical for example. Such fresh ideas could have easily been disposed of by Mr Voisin
if necessary and the consultation may have lead Mr Voisin and Mr Brown to the
inevitable conclusion that the post of General Manager had to go.


The evidence heard and seen by the Tribunal of the meeting of the 12th September 2005
indicates that there was a full and frank discussion of the reason for Mr Voisin‟s decision
to make Mr Brown redundant, but again no consultation or sharing of ideas. There was an
exchange of information only and the meeting moved swiftly to discussing Mr Brown‟s
redundancy package. If there had been a proper consultation at this meeting including a
discussion of appealing the decision the process could have been rectified and the
redundancy process recovered. This failure meant the process was already flawed.


By mid September the parties discussed the redundancy package known as „Option 3‟
which had been prepared by Mr Brown. Indeed they shook hands on it; one can imagine
the relief that Mr Brown felt that this matter was finally settled. However the next day Mr
Voisin reneged on the deal; this builds up Mr Brown‟s perception of Mr Voisin as lacking
in fairness and reasonableness in dealing with this situation. It does not indicate that Mr



                                            152
Voisin conscientiously considered Mr Brown‟s suggestions. The Tribunal is not surprised
that Mr Brown signed the termination agreement containing one of Mr Voisin‟s options,
two days later. By then it must have been clear to Mr Brown that Mr Voisin was not
willing to negotiate or listen to Mr Brown‟s views on this matter and any element of good
faith would have been eroded. The timing in this case was only relevant up to the 7th
September 2005, when Mr Voisin told Mr Brown of his impending redundancy to prevent
him making the proposed investment, after that it was quite elastic and needed to be in
order to have an adequate consultation period. However the Tribunal‟s impression is that
Mr Voisin was determined to push through Mr Brown‟s redundancy by the end of
September as the clock was ticking on his 12 month notice period and Mr Voisin did not
want to reset that notice period by a further month.


The employer‟s lawyers referred the Tribunal to the case of Pink v White & White & Co.
(Earls Barton) Ltd [1985] 1RLR 489, which they maintained showed that a lack of
individual consultation was found to be immaterial to the fairness of the dismissal on the
facts, and declared that that decision applies in this case. The Tribunal disagrees. In the
case of Pink above, the employee was represented by a union and that union was
consulted by the employer before the redundancies and raised no objections to them. In
its judgment the EAT stated that it wished – “to emphasise that it was not desirable for an
employer to seek to discharge his duty by referring questions of redundancy solely to a
trade union instead of consulting the employees as well but we are all of the view … on
the facts of this case that individual consultation would have made no difference”.
(Emphasis added)


Mr Pink had the benefit of a union representative in the consultancy process and Mr
Brown did not. Accordingly there should have been consultation directly with him. The
use of a representative is useful; it acts as a buffer and de-personalises negotiations. In
this case the process of consultation was always destined to be personal and perhaps
difficult especially as Mr Brown was dealing with a principal who had made the decision
and was effecting it alone. Further, no appeal from Mr Voisin‟s decision was offered or
discussed.




                                            153
The Tribunal considers that the criteria for fair consultation as set out by Wall LJ in
Lambe v 186K Limited [2004] EWCA Civ 1045, are suitable to apply also in Jersey. Fair
consultation means:
Conducting consultations when the proposals are still at a formative stage;
Providing adequate information on which to respond;
Giving adequate time in which to respond; and
Ensuring conscientious consideration by the employer of the response to the consultation.


The Tribunal notes that Mr Brown‟s dismissal was conducted in the same manner as the
July redundancies, where the employees were told, paid and let go. There was no
consultation or lead in to those redundancies either.


The Tribunal is also aware of Mr Voisin‟s evidence that whilst he was aware of the JACS
model for redundancy, he did not review it or use it or take any other advice (including
discussing the matter with his Personnel Manager) during this process.


Selection
The Tribunal recognises that competing claims amongst employees may seem, at the time
a selection takes place, to have equal merit and the choice of who must be dismissed can
be difficult. It is not for the Tribunal to find reasons why someone should not have been
selected. However the employer has a responsibility to adopt a rational, fair and
consistent method of selection which can be justified against objective criteria. An
employer should also establish an appeals procedure when selecting for redundancy.
Objective criteria would include such matters as length of service, performance, skills,
attendance, disciplinary record etc. These criteria would be pitched against each other
when judging or assessing different employees. This method of selection is discussed by
the Tribunal in Goguelin v Stuart Banks (Carpenters & Builders) Limited [2006] and in
Pereira v Camerons Limited [2006]. The Tribunal consider that an employer would have to
have good reason for deviating from using objective selection criteria.


The Employer maintained that as Mr Brown was in a „pool of one‟, Mr Voisin did not
have to use a selection process because it was not applicable. The Employer considered
Mr Brown to be in a „pool of one‟ because he was the only person in management outside
„the middle management team‟ (the SMT) which had already endured a cull of



                                            154
redundancies in July 2006, that was not a non-executive member of the Board. This fact is
true but a close inspection of the Memorandum of Understanding document between Mr
Voisin and the SMT dated 12th April 2002, shows that Mr Brown, whilst the leader of the
SMT, and at that time the only member of the SMT serving on the Board, was also clearly
a member of the SMT. Mr Brown acted as a link between the Board and the SMT but
evidence was heard that some decisions regarding the business were made by the non-
executive members of the Board in the absence of Mr Brown, who was required to
implement them with the SMT. Mr Brown also held his place on the Board as an
executive director at the discretion of Mr Voisin alone. Accordingly Mr Brown was a
member of the SMT. This places Mr Brown in a much bigger pool of people for
consideration. The concept of Mr Brown being in „a pool of one‟ only existed because this
is the way Mr Voisin looked at his position. Mr Voisin‟s selection criteria – that he could
save Mr Brown‟s salary by assuming most of the functions himself – only applied because
that process of selection fitted his question.


If Mr Voisin had asked the broader questions of how to save costs throughout the
business or whether the management of the business should be restructured, he might
have been persuaded that there was more than the post of General Manager to look at or
he may have considered other options to the construction of the SMT which involved
using a selection criteria. Unfortunately Mr Voisin took an inflexible approach to the
selection of staff for redundancy at this time.
Finally, there was also no appeals procedure put in place whereby Mr Brown could appeal
against his particular selection for redundancy. The Tribunal finds this disturbing. It is
undoubtedly good practice to offer an appeal especially in selection processes as narrow
as these.


Redeployment


Redundancy is a time of great stress and often of some embarrassment to employees; they
are in effect, told they are not wanted without having done anything wrong. Bearing this
in mind it is wrong to expect an employee to represent himself on all matters throughout
the redundancy process – at some points the employer has to take control of the situation.
This is particularly true where an employee is not represented; here the employers must
guide the employee and lead the process. Accordingly, the Tribunal would expect an



                                                 155
employer having decided to make an employee redundant, to have considered, discussed
and offered suitable jobs within its business (or with an associated employer or successor
where appropriate), or otherwise given assistance with finding alternative work. The
employer should raise the issue of alternative employment at the consultation stage: it
may be that the employee is aware of suitable alternative work that the employer is
unaware of. It should be noted though that such consideration of redeployment is just
part of the process and does not necessarily lead to a positive conclusion.


The Tribunal is clear from the evidence it heard that during the process of the
redundancy, redeployment was not Mr Brown‟s primary concern – indeed he turned
down JACS‟s offer of assistance on this point. However it was obvious to the Tribunal
that after his redundancy Mr Brown gave this matter considerable thought and identified
roles that he thought he could have fulfilled in the management structure. It was also
clear to the Tribunal that Mr Voisin did not suggest alternative employment with Mr
Brown at any time during the process, and he did not open it up as a point of discussion
between the parties.


Equity and substantial merits


When reaching their decision the Tribunal noted that Mr Voisin took the decision to
make Mr Brown redundant very seriously indeed. The Tribunal notes that Mr Voisin
respects Mr Brown and values his contribution to the business and that he discussed the
situation with a fellow director of the business before making his final decision. Mr
Voisin was also gravely concerned as to the financial situation of his business at that time.
However, Mr Voisin appears not to be conscious of his unquestionable authority when
dealing with his employees. He appears to run the business in an autocratic manner; he
does not seem to be aware of the employee‟s inferior position when dealing with him. At
no point during this process was there an appeal offered from Mr Voisin‟s decision or a
feeling generated that due process would be followed; his decision had been made, and it
was just a question of implementing it before the end of the month. Mr Voisin should
have been more careful of his position, power and status in communications with Mr
Brown during this time.




                                             156
The Tribunal have also taken note that Mr Voisin had a copy of the JACS redundancy
model which by his own admission he did not follow. He also did not take advice from
JACS or his Personnel Manager. This is surprising given her role in the business and her
experience of redundancies. Mr Voisin said he did not consult her because she was
subordinate to Mr Brown, in which case he should have definitely gone to JACS for
advice. The Tribunal were also disappointed that Mr Voisin did not keep his notes of the
various meetings with Mr Brown.


DECISION


It is not for this Tribunal to substitute its own views of what constitutes reasonableness
either in respect of redundancy selection or implementation of that criteria. The question
is, whether such redundancy process is one that a reasonable employer acting reasonably
should have followed. The Tribunal can see no reason not to follow the four principles of
fairness set out in Goguelin v Stuart Banks (Carpenters & Builders) Limited 2006, that an
employer has a duty to:
Consult with the employee
To warn the employee (of redundancy)
To establish fair selection criteria
To explore alternatives to redundancy.


In this case it is clear to the Tribunal that Mr Voisin did not warn Mr Brown of his
possible redundancy, did not open any consultation with Mr Brown about his situation –
indeed Mr Voisin had made up his mind regarding the outcome from the very beginning
of the process leading to Mr Brown‟s dismissal, and Mr Voisin did not suggest any
alternative employment to Mr Brown, or encourage the subject to be explored.
Accordingly none of these duties were discharged by the employer.


It is important to remember that we define our worth, dignity and position in society by
our jobs and the status they give us. A person‟s job should not be taken away without
following a process which closely involves both parties or their representatives. In this
process all aspects of a person‟s employment are open to consideration and discussion
until the final redundancy package is agreed upon. It can be a lengthy process and the




                                           157
parties should be prepared for this, but it must be conducted in good faith and with open
minds. The Tribunal finds that these elements were missing from Mr Brown‟s dismissal.


The Tribunal finds that Mr Brown was unfairly dismissed in accordance with article 64 of
the Law, and as he had been employed for a period in excess of 5 years he is hereby
awarded, in accordance with the Employment (Awards) (Jersey) Order 2005, the sum of 26
weeks pay. At the time of his dismissal Mr Brown earned £1,248.80 per week. Accordingly
the Tribunal‟s Award is:-


£1,248.80 x 26 weeks = £32,468.80




                                           158
                               Jersey Employment Tribunal


Case Number:                   0305065 /06


Applicant:                     Mr José Rodrigues
Respondent:                    Mr Marco Varela


Case Summary:           Summary judgment of Tribunal; unpaid wages; notice pay; failure
                        to provide written statement of terms; failure to provide a pay
                        statement.


Hearing on:                    17 July 2006


Before:                        Mrs Nicola Santos-Costa, Deputy Chairman


Representation:
For Applicant:                 Mr Rodrigues represented himself
For Respondent:                Mr Varela did not appear.


The Facts


On 13 March 2006 Mr Rodrigues was employed by Mr Varela as a painter. It was agreed
that Mr Rodrigues would be paid £400 per week in return for 40 hours work, and that Mr
Varela would pay his social security. Mr Rodrigues worked for Mr Varela until 13 April
2006. At the end of week 1 he received his £400 pay. During weeks 2 and 3 he received his
£400 pay for each week but not in a lump sum. At the end of week 4 Mr Rodrigues was
not paid at all. Mr Rodrigues also failed to receive a written statement of the terms of his
employment and was not given any statements of his pay throughout the period that he
worked for Mr Varela.


Mr Rodrigues filed Form JET 1 with the Employment Tribunal on 21 April 2006 setting
out his complaints that he was owed a week‟s wages, a week‟s notice and had not received
a contract of employment. On 23 May 2006 Mr Varela was informed of the complaint
against him and instructed to file a response (Form JET 2) within 21 days. No response



                                              159
was received by the Employment Tribunal office and Mr Varela was instructed again by
letter dated 15 June 2006 to file Form JET 2 within the next 10 days. No response was
received from Mr Varela. On the 28 June 2006 the Employment Tribunal office instructed
both parties to attend a hearing on 10 July 2006 in order that the complaint could be heard.
Mr Rodrigues attended the hearing but Mr Varela did not. The Deputy Chairman of the
Employment Tribunal was the Chairman of that hearing, and having spoken to Mr
Rodrigues considered it appropriate that Mr Varela be given one last opportunity to
defend the complaints against him. Accordingly the Deputy Chairman adjourned the
hearing for one week to 17th July 2006. The Deputy Chairman wrote to Mr Varela on 10
July by registered post instructing him of the nature of the complaints against him and
informing him that the Tribunal can find against him in his absence and instructed him to
attend a hearing on 17 July 2006. As the registered letter has not been returned to the
Tribunal office the Tribunal must assume that Mr Varela received the letter.


On 17 July 2006 Mr Rodrigues attended the hearing but Mr Varela did not.


The Tribunal has the power under the Employment Tribunal (Jersey) Regulations 2005 to
hear complaints and make decisions in the absence of a party.


The Deputy Chairman conducted the hearing on the 17 July 2006 and heard evidence
under oath from Mr Rodrigues that:


He started worked for Mr Varela on 13 March 2006
he stopped working for Mr Varela on 13 April 2006
he had not received a written statement of the terms of his employment in accordance
with article 4 of the Employment (Jersey) Law 2003 („the Law‟)
he was told by Mr Varela that he would be paid £400 per week and have his social
security paid
he was not paid his final week‟s wages of £400
he was not given 1 week‟s notice in accordance with article 56 of the Law
he did not receive a written statement of his pay during the time he worked for Mr Varela
in accordance with article 51 of the Law.




                                             160
The Decision


Based on the information supplied by Mr Rodrigues in his Form JET 1, the Deputy
Chairman‟s notes of the hearings held on 10 and 17 July 2006 and the oral evidence of Mr
Rodrigues given at the hearing held on 17 July 2006, the Tribunal finds as follows:


1.      That Mr Rodrigues was employed by Mr Varela as a painter at a wage of £400 per
week and is entitled to receive one week‟s wages due to him and unpaid, amounting to
£400.


2.      That Mr Rodrigues should have been given one weeks notice by Mr Varela
pursuant to article 56(1) of the Law, and accordingly the sum of £400 is due to him.


3.      That Mr Rodrigues did not receive a written statement of the terms of his
employment pursuant to article 4 of the Law. The maximum fine which can be imposed
by the Tribunal under article 9 of the Law for a breach of this article is £5,000 but in this
case the Tribunal will impose a fine of £50.00.


4.      That Mr Rodrigues did not receive a written itemised pay statement at any time
during his employment by Mr Varela as required by article 51 of the Law. A breach of this
article is an offence (article 55 of the Law) punishable by a fine of up to £5,000. In this case
the Tribunal will impose a fine of £50.00.


                               Schedule of Awards and Fines
Awards
1.      Unpaid wages due                                               £400.00
2.      1 week‟s notice                                                £400.00


                                               Total                   £800.00


Fines
1.      Failure to provide written terms of
        employment pursuant to article 4 of the Law                    £ 50.00




                                              161
2.   Failure to provide written itemised pay statements
     pursuant to article 51 of the Law.                   £ 50.00


                                           Total          £100.00




                                          162
                                Jersey Employment Tribunal
Case Number:            1804060/06


Applicant:              Mr Jeffrey Bell
Respondent:             W. Horn Brothers Limited


Case Summary:           Contract of employment; Continuous employment.


Hearing on              31 August 2006
Before:                 Mr David Le Quesne, Chairman,
                        Mr P Kirwan, Panel Member
                        Mr S Mourant, Panel Member


Representation:
For Applicant:          Mr Bell represented himself
For Respondent:         Mr Huw Thomas


Witnesses:
For Applicant:          Mr. S Cawley
For Respondent:         Mr Ian Horn, Company Secretary, W Horn Bros Ltd.


1         Mr Bell complains that his employment by W. Horn Brothers Limited was
terminated without notice or payment to him instead of notice. Horn Brothers respond
that Mr Bell had left their employment by mutual agreement, to go on an extended
holiday, and that he had no right to notice.


2         Mr Bell‟s case is that he started his employment with Horn Brothers as a painter
and decorator on 5th February 2002. This is not disputed. He said that he agreed with his
employer that he would take off two or three months each year during the slack months
of January to March, that it was his habit to do this, and each time, apart from the last
occasion with which we are concerned, he returned to him employment with Horn
Brothers. His case is that his employment since February 2002 was continuous, albeit with
prolonged holidays.



                                               163
3         Horn Brothers‟ case is that Mr Bell‟s employment has not been continuous; his
employment ended each year when he took these long holidays, and, until the occasion
which we are considering, he was re-employed on his return because there was work for
him to do and it suited Horn Brothers so to do.


4         We heard evidence from Mr Bell, who said:
That in the early days of his employment he arranged with Mr Ron Horn that he would
take these two or three month holidays in January to March, and Mr Horn agreed. This
was convenient for Horn Brothers because it did not have to find work for him during
those slack months.
That he always said the dates on which he would leave and return. He never had an open
ticket, but always one with a fixed return date, and his tourist visa would only last three
months.
That his social security card was never returned to him on these occasions when he left.


5         As for the occasion we are considering, Mr Bell told us:
That he remembered telling Mr Ron Horn the dates of his departure and return and Mr
Horn making a note of those dates. Mr Bell was firm on this in cross examination.
That he left knowing that he would have to pay a substantial sum of rent to his landlady
on his return, which he intend to do from his employment with Horn Brothers on his
return.
That he knew that he would have to pay about £2,000.00 to his bank on his return, which,
again, was to come from future earnings from Horn Brothers.
That had he any idea that his employment was not safe, he would have seriously
considered whether or not to go to Thailand at the end of 2005.
That he returned to Horn Brothers on 22nd or 23rd March 2006, expecting to resume work,
He said that Mr Ron Horn was in the office but rushed out to his car with just a word or
two, and he was told by a secretary that there was no work for him, and he was shocked.
That he has not had his social security card returned to him.


6         Mr Cawley gave evidence for Mr Bell, and confirmed that the first three months of
the year are slack months in the decorating business.




                                              164
7      Mr Ian Horn, company secretary of Horn Brothers, gave evidence for Horn
Brothers. We have no reason to doubt his evidence, but the problem for us is that Mr Ian
Horn had little direct knowledge of the relevant events; those who had direct knowledge
seemed to be Mr Ron Horn and Mr Paul Maguire, whom we understand were directors
and neither of whom gave evidence. Where there was no direct evidence contrary to the
direct evidence of Mr Bell, we naturally accept the evidence of Mr Bell.


8      Mr Horn said that he did not return Mr Bell‟s social security card on this or
previous occasions, but said that nine out of ten times when someone leaves he would
return the card. The fact that Mr Bell was not given his card when he left in December
2005 suggests to us that Horn Brothers did not regard his employment as at an end, any
more that it did on previous occasions.


9      We asked Mr Horn about the contract of employment which had been provided to
us; it was signed by him and Mr Bell and dated 18th March 2002. He said that no other
contract was issued until a new one after the Employment Law came into effect in 2005.
It is of some significance (but not determinative of the issue) that Horn Brothers had a
contract signed by Mr Bell in 2002, but not in each subsequent year, when, according to it,
Mr Bell was re-employed.


10     We asked to see the 2005 contract of employment, and this was produced by Mr
Horn. It should have been produced earlier.
This contract is signed by Mr Bell on 7th September 2005 and by Mr Ian Horn on 21st
September 2005.
Paragraph 4.1 reads “Your employment shall commence on/commenced on 5th February
2002 (date)”. The date is in manuscript which Mr Horn confirmed was his.


11     There are two pieces of evidence which cause us to decide that Mr Bell was
continuously employed from 5th February 2002.
First, Mr Bell‟s evidence, which was not contested, that he told Mr Ron Horn of his date of
return, Mr Horn made a note of the date, and did nothing to suggest that Mr Bell‟s
employment had ceased or that he might not be employed when he returned on that date.
Second, the statement in the contract of employment that Mr Bell‟s employment started in
5th February 2002.



                                            165
12     We uphold Mr Bell‟s claim. He was entitled by his contract and by law to four
weeks notice of dismissal when he returned in March 2006. He earned £492.40 per week,
so we order the respondent, Horn Brothers, to pay to Mr Bell 4 x £492.40 = £1,969.60.




                                            166
                                Jersey Employment Tribunal


Case Number:            1602032 /06


Applicant:              Mr Slim Miri
Respondent:             Simply Med Ltd
Hearing on              18 September 2006
Before:                 Mr David Le Quesne, Chairman.


Representation:
For Applicant:          Mr Miri represented himself
For Respondent:         Mr Rex Barker


Witnesses:
For Applicant:          None
For Respondent:         None


1         Mr Barker was a director of the respondent. I questioned him about the status of
the company, but he was not clear; he believed that it was to be allowed to lapse, but did
not know if the company remained in existence, and if he remained a director. I
proceeded upon the assumption that the company exists.


2         Mr Barker did not dispute the amount claimed by Mr Miri, being two weeks pay
at £275 per week and one day‟s holiday pay at £45.83.


3         The evidence of Mr Barker bore out what the papers before me stated, which was
that he was advised by his accountant that the company should stop trading, and he
informed Mr Miri by telephone on 30th January 2006 that the company had ceased
trading. It appears that the company has no assets with which to satisfy its creditors.


4         I therefore order Simply Med Limited to pay to Mr Miri the sums referred to in
paragraph 2 above, amounting to £595.83. On the evidence of Mr Barker, I regret that it
seems unlikely that the company will be able to pay.




                                             167
                                 Jersey Employment Tribunal


Case Number:             0606084/06


Applicant:               Miss Donna Douglas
Respondent:              Beauty and the East     Limited
Hearing on               18 September 2006
Before:                  Mr David Le Quesne, Chairman


Representation:
For Applicant:           Miss Douglas represented herself
For Respondent:          Failed to appear.


Witnesses:
For Applicant:           None
For Respondent:          None


1         The Tribunal has heard nothing at all from the respondent. There has been no
response to the applicant‟s claim form which was sent to the Respondent, and there has
been no response to letters and emails which have been sent. The Respondent was given
notice of the hearing today, and warned that if it did not appear, there might be a
judgment in default against it, yet it has not appeared.


2         Miss Douglas appeared and gave evidence. She corrected paragraph 4.6 of her
claim form, to claim for two, not four, weeks pay instead of notice, less one week of
holiday already taken.


3         I am satisfied that Miss Douglas is entitled to one weeks pay, which is £298.53,
and accordingly I order Beauty and the East Limited to pay to Miss Douglas the sum of
£298.53.




                                               168
                                Jersey Employment Tribunal


Case Number:                   2205070/06


Applicant:                     Mr Charles Maina
Respondent:                    Empire Catering Limited


Case Summary:           Whether employee resigned or was dismissed; Unfair dismissal;
Period of continuous employment; Calculation of compensation for unfair dismissal.


Hearing on                     25 September 2006
Before:                        Mr David le Quesne, Chairman
                               Mr Stewart Mourant and Tim Langlois, Panel Members


Representation:
For Applicant:          Mr Maina represented himself
For Respondent:         Empire Catering Limited was represented by Miss V Milner, Law
at Work.


Witnesses:
For Applicant:          Mr. Charles Maina
                        Ms. Elizabeth Wallace
                        Mr Peter Henia
                        Mr. Carlos Borralho


For Respondent:         Mr. Mario Pirozzolo, Director
                        Ms. Jennifer Bisson
                        Mr. Jorge de Jesus


Background


1         Mr Maina is Kenyan. In order to provide staff for the catering industry, we were
told that there is an arrangement whereby Kenyans can, provided certain conditions are
met, come to work in Jersey in the catering industry for up to nine months at a time. From



                                              169
2003 until this year Mr Maina came to Jersey annually pursuant to this scheme, and
worked for Empire Catering Limited („Empire‟), a catering business, the directors of
which are Mr Pirozzolo and his wife, Dolores.


2      In March 2006, Mr Maina was summarily dismissed for gross misconduct, but
within a few days he was re-employed by Empire.


3      On 30th April 2006 Mr Pirozzolo went to the swimming pool cafeteria at Havre des
Pas with Mr Borralho, the food and beverage manager of Empire, where they met Mr
Maina. Empire had the contract to provide the catering at that cafeteria and Mr Maina was
working there for Empire.
       The main issue for us to decide is what was said at that meeting: was Mr Maina
dismissed on two weeks notice, as he says, or did he resign on two weeks notice, as Mr
Pirozzolo says? If he was dismissed, was the dismissal unfair? If he resigned, was it in
circumstances amounting to constructive dismissal?


4      Only the three people present at the meeting on 30th April know what was said,
and by now their recollections will have faded to some extent. However, there was a
striking difference between the evidence of the primary witnesses, Mr Maina and Mr
Pirozzolo.


Mr Maina‟s evidence


5      Mr Maina said that for some time he had been asking Mr Borralho about bank
holiday pay which he thought was due to him, and he understood from Mr Borralho that
the previous evening, 29th April, he had mentioned it to Mr Pirozzolo. On 30th April,
whilst Mr Maina was clearing up the café after a party for which Empire catered, Mr
Pirozzolo and Mr Borralho appeared; the two of them had a brief discussion then Mr
Pirozzolo came up to Mr Maina in a furious state. Mr Maina said that he wanted to
discuss his bank holiday pay and also payment of what he thought was due in respect of
the minimum wage entitlement, but there was no such discussion, only a brief exchange,
during which he was dismissed by Mr Pirozzolo.


Mr Pirozzolo‟s evidence



                                           170
6      Mr Pirozzolo‟s evidence was that he arranged to go to the café with Mr Borralho to
see Mr Maina for a disciplinary meeting because he understood that Mr Maina had not
complied with a previous undertaken, given in return for his re-employment after he was
dismissed in March, to work harder and better. He said that there was a meeting, in which
he went through the various problems and the complaints which had been made against
Mr Maina, and then Mr Maina stormed out, had a cigarette, returned and said that he
wanted to leave immediately and he wanted a letter of release from Empire, as he had
another job to go to. Mr Pirozzolo said that his response was that he would get back to Mr
Maina as soon as possible, which he did by the letter we have seen of 30th April to which
we refer below.


7      We understand that a letter of release would have been required by Mr Maina to
show to the immigration authorities to prove that he had left the job for which he had
been permitted to enter Jersey and to persuade them that he should be allowed to stay and
find another job. Mr Pirozzolo told us that Mr Maina asked for such a letter, and he, Mr
Pirozzolo was not prepared to provide it. We refer to this again later in this judgment.


Mr Borralho‟s evidence


8      Mr Borralho gave evidence which supported what Mr Maina said, and added
details, such as illustrating the very strong language used by Mr Pirozzolo. His evidence
sounded convincing.
In cross examination, Mr Borralho was shown by Miss Milner a copy of a statement
apparently signed by him on 10th June 2006, and witnessed by someone whose signature
could not be read. The content of that statement ran completely contrary to his oral
evidence, and supported Empire‟s case, rather than Mr Maina‟s case. He flatly denied that
it was his statement. On being asked if he could have signed it without reading it, he said
“I always read what I sign”. We were unable to know what to make of the conflicting oral
evidence and written statement.
       Later, the original version of that statement was produced by Empire‟s lawyer, and
it was put to Mr Borralho, whom we recalled in order to try to clear up the matter. Mr
Borralho this time said that it was his signature, so he must have signed the document,
but that he did not read the content, apart from the last paragraph, which he recollected.



                                            171
He thought that the statement must have been put into his tray in the office, and he must
have removed it with other papers and signed it without paying attention.
       Mr Borralho was summarily dismissed by Empire recently, and it was suggested
to him, but he denied the suggestion, that he gave untrue evidence before the Tribunal in
order to exact revenge on his former employer.
       We have concluded that it would be unsafe to place reliance on Mr Borralho‟s
evidence; we cannot safely determine which of his live evidence or his written statement
represents the truth, and we cannot safely credit parts of his oral or written evidence.


9      We are therefore left without corroboration of Mr Maina‟s or Mr Pirozzolo‟s
version of events, so we have Mr Maina saying he was dismissed and Mr Pirozzolo saying
Mr Maina resigned. We must look at the evidence as whole for clues as to what happened
on 30th April and whose version of events is correct.


10     Parts of Mr Maina‟s evidence did surprise us. There were some documents which
clearly were destined for him, but which he said he did not receive at the time or at all. He
stated that the 2006 contract of employment, which appeared to bear his signature, was a
forgery, in that it was not his signature. He denied that his performance at work fell short
of the required standard and he denied that he was warned about his performance. In
view of the evidence of Mr de Jesus, which we thought was broadly credible, these latter
two denials did not convince us.
       We did not regard Mr Maina‟s evidence as altogether reliable, but there was no
point on which we felt sure that what Mr Maina told us was deliberately untrue.


11     Empire produced to us a copy of a certificate dated 16th March 1991 in the name of
Mr Maina from Kenya Utalii College showing that had undertaken a course in Food and
Beverage Service and Sales, and also produced a letter from the college‟s director of
studies, Mr Osoro, dated 12th September 2006, stating that it had no record of Mr Maina.
       Mr Maina said that the letter did not reflect the truth, he had attended the college,
the certificate was genuine, and that the letter was the result of some sort of skulduggery
between Mr Pirozzolo and Mr Osoro‟s daughter, who was working for Empire.
       Mr Pirozzolo said that, as far as he knew, he had no daughter of Mr Osoro
working for Empire; there was another female Kenyan, whose first name was Jacqueline
but her surname was not Osoro, and she had been for meals at his home. We cannot



                                             172
believe that a daughter of Mr Osoro would be working for Empire, and socialising to
some extent with Mr Pirozzolo, without him knowing her connection to Utalii College.
       After the hearing had ended, Miss Milner for the respondent provided to the
secretary to the Tribunal, and thus to us, a copy of a letter from the director of
Immigration and Nationality stating that it had established through the High
Commission in Nairobi that the certificate was false, and that Mr Maina had been into the
office and admitted that he had lied about the certificate.


12     Mr Pirozzolo told us that almost from the start Mr Maina was an unsatisfactory
employee. He said that the relationship with Mr Maina was totally different from that
with any other employee, that Mr Maina had been spoken to at least five times about his
performance, and he generally improved for a week or two, then relapsed. Empire
produced a document from Mr Maina‟s employment file which referred to such warnings.
It showed that Mr Maina was spoken to on 12th July 2003, 22nd June 2004, 18th October
2004, 9th February 2005, 28th June 2005, that he was dismissed on 27th March 2006 and
taken on again on 30th March 2006 on a final warning.
Empire produced a memorandum recording a meeting on 17th May 2005 between Mr
Maina, Mr de Jesus, Mrs Pirozzolo and Mrs Pirozzolo when Mr Maina was confronted by
the substantial deterioration in his work, the facts that he stopped work when not
supervised, and appeared lethargic, tired and was disruptive. He was given a warning.


13     Mr Maina produced to us a letter from Empire to the Immigration and Nationality
Department in Jersey, dated 26th November 2003 and signed by somebody at Empire on
behalf of “Major Mario Pizzorolo TD”. The letter was asking that Mr Maina be allowed to
return to Jersey to work for Empire, clearly after his first stint in Jersey working for
Empire. Mr Pirozzolo wrote that “Mr Maina has proved most efficient, and in particular
has made a tremendous contribution to the catering service that we provide…I have asked
Charles to return to us as soon as possible.”
       Mr Maina also produced a similar letter, with Mr Pizzorolo‟s name shown in the
same way, to the British Embassy in Kenya, dated 28th December 2005, using the same
words about Mr Maina.
       The document to which we refer in paragraph 12 above shows that Mr Maina had,
by December 2005, been given six verbal warnings, and the evidence of Mr Pirozzolo and
Mr de Jesus suggested that there were other warnings.



                                                173
       We pressed Mr Pirozzolo as to how he could have written about Mr Maina in such
glowing terms, which clearly he knew to be wrong, and his explanation seemed to be that
the letters were templates from the computer. In other words, the contents of the letters
were not considered.
       We do not accept this explanation as truthful.


14     Mr Maina was summarily dismissed on 27th March 2006 for gross misconduct in
not remaining at work for a meeting with Mr de Jesus, leaving work early, arranging for
another to clock him off after he actually left work, and having an outside part time job
without permission. On 30th March 2006, Mr Maina was re-employed. Empire produced a
letter dated 30th March 2006 from Mr Pirozzolo stating that Mr Maina had appealed
against his dismissal, that the appeal was heard by the Manager on 29th March 2006, and
that the decision was made to continue his employment on compassionate grounds.
       Mr Maina said that he did not receive this letter, that he did not appeal, and that
there was no appeal hearing involving him.


15     Mr Pirozzolo‟s evidence in chief about the appeal hearing on 29th March 2006 was
that Mr Borralho and Mr de Jesus attended and spoke on behalf of Mr Maina, and he, Mr
Pirozzolo, and his wife were there as adjudicators. Mr Maina was not informed about the
meeting, though Mr Pirozzolo said that he tried to contact him.
       In its response form, Empire stated that “on appeal he was reinstated on
compassionate grounds having pleaded hardship.”
This sounded a strange episode, for Mr Maina said that he did not appeal; Mr Borralho
had offered him the job of working at the Havre des Pas pool for Empire, he accepted, so
there was nothing for him to appeal. It also seemed strange that an appeal hearing should
take place without the appellant being present.
       This was resolved to some extent by Mr Pirozzolo‟s evidence in cross examination,
when he said that the meeting on 29th March 2006 was not to make a decision about Mr
Maina, but to note that he had been re-employed. This is a very different version of
events from the evidence his chief, and one which more accords with Mr Maina‟s
evidence. Incidentally, it accords with Mr Borralho‟s evidence that he re-employed Mr
Maina without reference to anybody.
       In his letter of 30th April to Mr Maina, Mr Pirozzolo referred to the dismissal and
reinstatement in March as follows “Under our disciplinary procedure, you appealed to the



                                             174
Company on the basis of hardship, and after careful consideration, you were allowed to
remain in employment…”. Mr Pirozzolo‟s evidence in cross examination makes this
untrue; there was no appeal.


16     We thus have both primary witnesses giving unreliable or untruthful evidence to
us.


17     As far as Mr Maina is concerned, even if, as well may be the case, the certificate is
a forgery, which would reflect badly on Mr Maina, we would not regard that fact, and the
consequent lie he must have told us (that the certificate was genuine) as having as much
impact on his credibility in relation to what happened on 30th April as the impact on Mr
Pirozzolo‟s credibility of the matters to which we have referred above.
We say this because of the difference in the situations of the two men. Mr Maina is, on his
own evidence, a poor man who was and is desperate to earn good money for his family in
Kenya; a lie or forgery by him to achieve his purpose of coming to Jersey is reprehensible
but in our view does not render unreliable what he told us of events on 30th April.
Having forged the certificate, it was inevitable that he would lie to us by telling us that it
was genuine.
On the other hand,     Mr Pirozzolo is the main director and possibly the owner of a
substantial catering business and he makes it known that he is a major in the Territorial
Army, with a decoration; any lack of frankness by him, particularly in proceedings before
us, when he gave his evidence on oath, is very serious;             it goes directly to the
circumstances which we have to consider.


18     We regard these matters, the two letters which clearly did not tell the truth,
particularly the one in 2005 to the British Embassy, and the different versions given by Mr
Pirozzolo of what happened at the meeting, if there was one, on 29th March 2006, as
significant. The first appears to be a case of a clearly untrue statement being made to an
authority on an important matter. The second appears to us to be Mr Pirozzolo simply
changing his evidence. There is a vast difference between an appeal hearing at which
compassionate grounds are put forward, leading to a decision to re-employ, and a meeting
of directors and executives at which a decision, presumably made by Mr Borralho, to re-
employ Mr Maina was merely noted.




                                             175
       The significance is such that we conclude that Mr Pirozzolo‟s evidence is
unreliable, and we prefer the evidence of Mr Maina.


19     In addition, we find Mr Pirozzolo‟s explanation of his behaviour on 30th April
2006 so unlikely as to add to our doubts as to his credibility.
       Mr Pirozzolo made it clear that he could not tolerate Mr Maina‟s continued
employment by Empire; his performance had not improved since his reinstatement the
previous month. Mr Pirozzolo said that at the meeting on 30th April 2006 Mr Maina said
that he wished to leave immediately. Further, he said that he was not willing to release Mr
Maina immediately, whether by resignation or otherwise, because it would have left a gap
in his staff which would have caused difficulties; in fact, he would have been prepared to
continue to employ Mr Maina for weeks or a couple of months.
       The question we put several times to Mr Pirozzolo was why, if he was fed up with
Mr Maina‟s failure to perform, and if he understood that Mr Maina wanted to resign, he
did not agree to this, thus ridding himself of Mr Maina.
       Mr Pirozzolo‟s answer was that Mr Maina required a letter of release, to show to
the Immigration authorities, to support an application to change employers. We asked
why this was a problem, for it would merely have reflected the reality, which was that Mr
Maina was to be released, and Mr Pirozzolo‟s answer was that he was not prepared to act
with a gun to his head. We pressed him to explain what was the gun, but he did not give a
satisfactory explanation.


20     We cannot believe Mr Pirozzolo‟s story. On his version, he was fed up with Mr
Maina; he had given him every opportunity to improve, but there had been no lasting
improvement; other staff were complaining that Mr Maina‟s failures made their working
lives difficult. He said that Mr Maina offered to resign, and wanted a letter releasing him
from his employment. We cannot believe that Mr Pirozzolo refused, or would have
refused, to accept such a resignation, and certainly not on the ground that he did not want
to give Mr Maina a letter of release, which did not require Empire to say anything untrue.


21     We believe that the letter from Mr Pirozzolo to Mr Maina of 30th April 2006,
which was in Empire‟s bundle, is a significant indication of what, immediately after the
meeting, was in Mr Pirozzolo‟s mind. The first sentence reads “Following our meeting
this morning, we hereby offer you two weeks notice in terminating our employment



                                             176
agreement.” The obvious meaning of this is that Empire is giving notice to Mr Maina. Mr
Pirozzolo said that this is not what he meant, and the letter was poorly worded. There is
such an obvious way of saying in a letter that an employee‟s resignation is accepted that
we find this difficult to accept.
        The final paragraph starts as follows: “I genuinely feel you have reached your
ceiling in hospitality. For our part, we simply have no other area of employment where
you would be effectively deployed…”. These words read as coming from an employer
saying that the employee has to go because there is nothing which he can satisfactorily do
in the organisation.
        We therefore think that this letter supports Mr Maina‟s contention that he was
dismissed.


22      As indicated above, this is not a case in which we are satisfied that one party is
wholly truthful and the other is wholly untruthful; there are aspects of Mr Maina‟s
evidence which have caused us concern. However, the matters to which we have referred
satisfy us that Mr Pirozzolo, on behalf of Empire, was not truthful about the meeting on
30th April 2006.
We have concluded that what happened on 30th April 2006 was that Mr Pirozzolo on
behalf of Empire dismissed Mr Maina.


Unfair dismissal


23      Was the dismissal unfair? We have the notes referred to above which show that
verbal warnings were given to Mr Maina, and we have the evidence of Mr Pirozzolo and
Mr de Jesus that his work was unsatisfactory; Mr de Jesus said that he gave many
warnings to Mr Maina; we heard from both of complaints from other members of staff
that their ability to complete their tasks was hindered by Mr Maina‟s failure to complete
the work he was supposed to do.
        There was plenty of evidence that Mr Maina‟s work was unsatisfactory, but, it is
very puzzling to us that, given all that Mr Pirozzolo told us of his frustration over the
years about Mr Maina‟s work, and given what he must have been told by Mr de Jesus, he
continued to take Mr Maina back each year, and he told the British Embassy that Mr
Maina was most efficient and had made a tremendous contribution. Why did Mr
Pirozzolo go to the trouble of telling this untruth (as he admitted it was) to procure the



                                           177
return to Jersey and the employment by Empire of this man whom he says was such a bad
employee? We were not given a satisfactory answer to this question.


24     The dismissal in March for gross misconduct was retracted. Initially we were told
by Mr Pirozzolo, as related above, that this retraction was the result of pleading on behalf
of Mr Maina at an appeal hearing on 29th March 2006, but later we were told that there
was no appeal hearing, and on that date it merely was noted that Mr Maina had been re-
employed, we understand by the manager, Mr Borralho. If the dismissal was for gross
misconduct, the manner of Mr Maina‟s re-employment seems to us to be very casual, and
inconsistent with gross misconduct. Misconduct sufficient to justify instant dismissal
must be serious. After such serious misconduct, we think it unlikely that Mr. Maina
would have been re-employed by the manager without consultation, and would that re-
employment merely would have been noted by Mr Pirozzolo. If this is what happened, it
sent a very mixed message to Mr Maina.


25     In relation to the events in March, Empire produced a copy of a typed letter to Mr
Maina from Mrs Bisson, the company secretary, notifying him of his dismissal for gross
misconduct. It is not dated, save that the date “27/3/06” has been added in manuscript.
There is no signature or initial on the letter. Mr Maina said that he did not receive it. We
were told that it was given to him, rather than sent to his address as shown on the letter.
We simply do not know if this very important letter reached Mr Maina.
An employer dismissing an employee must make sure that the dismissal is in writing and
that the letter is received by the employee, so that both sides know what has happened.


26     Empire also produced a copy of a typed letter, on its letterhead, dated 30th March
2006 addressed to Mr Maina “By Hand”. The letter refers to Mr. Maina‟s re-employment.
We were told that this letter would have been put in his pay packet or given to him. The
letter is initialled by Mr Pirozzolo and on the top right corner he wrote in manuscript
“Josie [that would be Mrs Bisson, the company secretary] copy for Carlos [Borralho]; Pse
also check his new address as I don‟t think he lives in Belmont Rd?”
       Mr Maina told us that he did not receive this letter either. Given that the letter
appears to have been intended to be given by hand to Mr Maina, and given Mr
Pirozzolo‟s manuscript note suggesting that it was to be sent to him, we cannot be
satisfied that it did reach Mr Maina.



                                            178
        The letter itself is inconsistent with Mr Pirozzolo‟s evidence, for it refers to the
appeal hearing which he told us in evidence did not occur. Even if Mr Maina did receive
that letter, it was wrong and probably would have puzzled him as much as it puzzles us.
        Given these inconsistencies, we cannot proceed on the assumption that there
really was gross misconduct by Mr Maina so as to justify instant dismissal in March 2006;
the behaviour of the employer was not consistent with there having been a dismissal for
gross misconduct.


27      We are not satisfied that the two letters to which we have just referred were
received by Mr Maina and we are not satisfied that there was gross misconduct. In the
light of that, we must consider the dismissal on 30th April 2006.
        Our conclusion is that, even if Mr Maina‟s performance justified his dismissal, he
was not treated fairly. The requirement, other than in the case of dismissal for gross
misconduct, is for the employer to take what amount to graduated steps towards
dismissal, ensuring that the employee understands where his performance is insufficient,
and giving him the chance to change. The employee must understand the consequence of
not improving. When the stage of a written warning is reached, the employer must make
sure that the warning is received by the employee, and that he understands it. A
purported final written warning such as that of 30th March 2006 is of no use if it contains
substantial untruths, as it did.


28      Even if the letter of 30th March had been received by Mr Maina, and ignoring the
untruths in it, we then have to consider what was the conduct of Mr Maina which
transgressed that warning and justified his dismissal on 30th April 2006. From the time of
Mr Maina‟s reinstatement in March 2006, he worked at the cafeteria at the swimming
pool. We heard no evidence that his performance up to 30th April 2006 was defective
enough to justify dismissal. Mr Maina‟s evidence was that he was dismissed because he
had been asking about money due to him in respect of the minimum wage and bank
holiday working.


29      Our decision is that Mr Maina was not treated fairly in the events leading up to
his dismissal and that the employer has not satisfied us as to the grounds for dismissal. If
the grounds were Mr Maina‟s capability to do the job, or his conduct, we are not satisfied
that, since his reinstatement in March 2003, he fell short of what was required.



                                            179
       We therefore have decided that the dismissal of Mr Maina was unfair.


The award


30     Article 77 of the Law requires the Tribunal to make an award for unfair dismissal
in accordance with the Employment (Awards) Order 2005, and that order contains a scale
of compensation depending upon the “months of service completed in the employer‟s
service by the employee.”
       Miss Milner agreed that, for the purpose of computing the award, what has to be
considered is the period of continuous employment, as defined in the Law. We think this
is correct. The alternative would be to aggregate the time worked for Empire in each
contract, and not take into account the periods between contracts, when Mr Maina was not
working for Empire. That alternative would lead to an unacceptable anomaly whereby for
most purposes the whole period including breaks between contracts would be relevant,
particularly the period of continuous employment, but for the purpose of the calculation
of the compensation only the periods between contracts would be ignored.
This means (subject to what we shall call the „retrospectivity point‟), that for the purpose
of the order one takes into account the whole period starting on 17th April 2003, including
the times between contracts when Mr Maina was not working for Empire. Subject, as we
say, to the retrospectivity point, that period runs from 17th April 2003 to the effective date
of termination under article 63, which is the date of expiration of the notice which should
have been given on 30th April 2006. This means that, the notice period being four weeks
(article 56 of the Law), the period ended for this purpose on 28th May 2006, giving a
period of just over three years.
       The scale of compensation under the order therefore is sixteen weeks pay.


31     The retrospectivity point made by Miss Milner is as follows. She starts with the
principle that legislation generally is not retrospective, with which we agree. She says
that, consistent with this principle, the relevant period for the purpose of the scale of
compensation in the order cannot start before the law came into force on 1st July 2005. In
fact, Miss Milner modifies that point slightly, and we think thereby weakens her
argument, by conceding that the period starts at the beginning of the fixed term contract
which was in force on 1st July 2005, which contract started on 30th December 2004. Thus,




                                             180
Miss Milner accepts that some part of the employment which was prior to the coming into
force of the law should be taken into account.


32      We disagree with Miss Milner‟s submission. An enactment is retrospective “when
(i) it changes the relevant law with effect from a time earlier that the enactment‟s
commencement; or (2) it otherwise alters the legal incidents of a transaction or other
conduct effected before its commencement; or (3) it confers on any person a power to act
with retrospective effect. An enactment is not retrospective, however, merely because a
part of the requisites for its action is drawn from a time before it was passed.” (Halsbury
para 1248).
        Lord Brightman said in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at
558 “A statue is retrospective if it takes away or impairs a vested right acquired under
existing laws, or creates a new obligation, or imposes a new duty, or attaches a new
disability, in regard to event already past.” That passage was quoted by Staughton LJ in
Secretary of State for Social Security and another v Tunnicliffe [1991] 2 AER 712, who
went of to say at 724 “In my judgement the true principle is that Parliament is presumed
not to have intended to alter the law applicable to past events and transaction in a manner
which is unfair to those concerned in them, unless a contrary intention appears.”
        The Law states that the penalty is determined according to the time for which the
employee has been employed by the employer. If part of that employment was before the
law came into force, in our judgement that part is to be added to the part of the
employment subsequent to the Law coming into force, so that the whole of the
employment is to be taken into account for the purpose of the order. One is looking at
events before the Law solely for the purpose of calculating the period of employment for,
in this case, the purpose of calculating a penalty.
        If we are correct, it probably follows that a period of employment prior to the Law
coming into force would have to be taken into account for most purposes, for instance, as
we have done in this case, for the purpose of considering the minimum period of notice.
The logic of applying this decision to the minimum period of notice lends support to our
decision. Article 56(1)(f) provides that the minimum period of notice where the
continuous period of employment is fifteen years of more is sixteen weeks. We doubt that
the States intended that the fifteen year period could only begin to accumulate on 1st July
2005.




                                             181
This decision does not make the Law retrospective. The law interpreted as we have done
does not satisfy any of the three requirements for retrospectivity identified in Halsbury or
any of the requirements recited by Lord Brightman; neither does it offend what Lord
Brightman described as the true principle. Our decision merely means that the Tribunal
draws on the period of employment before the Law came into force for the purpose of
calculating the penalty.


33     Mr Maina therefore was employed for more than three years but not more than
four years, so the amount of wages to be awarded to him according to the order is sixteen
weeks. His salary was £230.00 per week, so the compensation which Empire must pay to
Mr Maina for unfair dismissal is £230 x 16 = £3,680.00.
       Mr Maina was given two weeks notice, and because he was employed for between
two and five years he was entitled to four weeks notice; therefore Empire must pay to him
two weeks salary instead of notice, which is £230 x 2 = £460.00.
       The total to be paid by Empire to Mr Maina therefore is £4,140.00.




                                            182
                              Jersey Employment Tribunal
Case Number:          2302036 / 06
Applicant (1):         James Baldrick Price


Case Number:          1810033 / 05
Applicant (2):        Kevin Richard McCauley


Respondent:           James Davidson - first respondent
                      Adrian Roy Baker - second respondent


Hearing on            27 September 2006
Before:               Mr David le Quesne, Chairman


Representation:
For Applicant (1):    Mr Price appeared for himself
For Applicant (2):        Mr McCauley did not appear, having appeared at a previous
                              hearing


For Respondent:       Mr Davidson appeared for himself
                      Mr Baker appeared for himself
Witnesses:
For Applicant:        Mr Price,
                      Mrs Price, mother of Mr Price.


For Respondent:               James Davidson
                              Adrian Roy Baker


Preamble


I decided to hear these cases together because, although the complainants are different,
the respondents are the same, and the facts are so similar that it would have been of no
advantage to hear them separately, and would have wasted the time of all the parties.


These cases have been heard on three occasions.



                                           183
On 14th June 2006 Mr McCauley‟s case, and on 15th June Mr Price‟s case, first came
before me, sitting alone, and neither Mr Davidson nor Mr Baker appeared. On the
evidence which I heard from Mr McCauley and Mr Price, I concluded that Mr Baker, not
Mr Davidson, was the employer. However, before my decisions were issued, I discovered
that Mr Baker had not been convened to the hearings, so I did not issue my decisions.
A new date, 13th July 2006 was set for the hearing. On that date neither Mr Baker nor Mr
Davidson appeared, and Mrs Santos Costa, Deputy Chairman, made orders broadly in the
terms of my draft orders.
However, it appears that, on 22nd June 2006, Mr Davidson informed the secretary to the
Tribunal that Mr Baker would be out of the Island until 4th September. The hearing
proceeded on 13th July despite that information, and I believe that it was the right course
to take, for the applicants could not be kept waiting for too long for their cases to be
determined, and Mr Baker should at the very least contacted the Tribunal himself if he
wished to adjourn the hearing.


Because today I am hearing other complaints from others against Mr Davidson and/or Mr
Baker, I decided that Mr Price, Mr McCauley and the respondents should be asked to
attend again so that, perhaps in an excess of zeal to give Mr Baker the chance to be heard,
I could hear evidence of Mr Baker and Mr Davidson.
On this occasion, Mr Baker and Mr Davidson appeared, as did Mr Price.


1      Mr Price‟s complaint form states that his employers were both Mr Davidson and
Mr Baker. The response form, apparently signed by Mr Davidson, states that he alone
employed Mr Price, and that the work was on Mr Davidson‟s house. He also states on the
form that “I am prepared to pay him what is owed to him by me”.
       The complaint of Mr McCauley was in broadly similar terms.


2      I have to determine if Mr Davidson, Mr Baker, or both, employed Mr McCauley
and Mr Price. The evidence of the employees was as follows:
(a)    Mr Baker was the initial contact; he told each of them that there was a job
available.
(b)    Mr Baker agreed with them how much they were to be paid.
(c)    Mr Baker told Mr Price to obtain a social security card, which Mr Price gave to Mr
Davidson, who returned it the same day.



                                            184
(d)    Mr Baker told them what work they had to do (the work was at Mr Davidson‟s
house). Mr Baker agreed with this, but said that it was only as foreman.
(e)    They were only paid in dribs and drabs, and when paid, generally it was by Mr
Baker. Mr Baker said that it was by Mr Davidson.
(f)    Mr Baker‟s van advertised, as did his business cards and business „flyers‟ that he
was in the business of painting and decorating. I was shown copies of both. I was told by
Mr Baker that the numbers were those of Mr Davidson.
(g)    They went straight to work at Mr Davidson‟s house and started work without
being interviewed by Mr Davidson. Mr Davidson confirmed that no work was done at
any other property.


3      Mr Baker and Mr Davidson said that the employer was Mr Davidson, and Mr
Baker was only the foreman, employed by Mr Davidson. Their evidence was that Mr
Davidson traded under Mr Baker‟s name because Mr Baker was well known in the
painting and decorating business and they thought that by trading under his name Mr.
Davidson‟s business could benefit from his reputation.


4      There was little evidence to support the contention that the employer was Mr
Davidson, and there was nothing which would have suggested to Mr McCauley or Mr
Price that anybody other than Mr Baker was the employer.
       An employee is entitled to know who his employer is, and had there been a
contract of employment, Mr McCauley and Mr Price would have known; there was not. I
am satisfied that, from the employees‟ position, it was clear that the employee was Mr
Baker. It was not for the employees to have to enquire as to the precise relationship
between Mr Baker and Mr Davidson. Having heard the evidence of Mr Baker and Mr
Davidson, it appears to me that either they were involved in some scheme to mislead
employees, or one of them is misleading the other.
       In any event, I have heard nothing to suggest that the decisions of the Deputy
Chairman of 13th July 2006 which are attached hereto are wrong, and therefore they stand.
(See attached appendices A & B)


3      As far as Mr Price is concerned, Mr Baker therefore must pay to Mr Price the
amount stated in that judgment, which is to say £4,750.00, and he is also fined £50.00.




                                             185
4         As far as Mr McCauley is concerned, Mr Baker must pay to Mr McCauley the
amount stated that judgment, which is to say £850.00, and he is also fined £50.00.


David Le Quesne, chairman.


Appendix A
                               Jersey Employment Tribunal
Case Number:           2302036 / 06


Applicant:             Mr James Price


Respondent:            Mr Adrian Baker


Case Summary:          Powers of the Tribunal to act in the absence of parties; unpaid
wages, holiday pay; failure to provide written statement of terms.


Hearing on:            13 July 2006


Before:                Mrs Nicola Santos-Costa, Deputy Chairman


Representation:        None of the parties appeared for this hearing.


The Facts
On the 22 February 2006, Mr Price filed JET 1 with the Employment Tribunal complaining
that he had been employed by Mr Jim Davidson and Mr Adrian Baker as an apprentice
painter and decorator for the period 26 September 2005 to the 29 January 2006 but had not
been paid in full by them and had not received a Christmas Bonus and had not received a
contract of employment. Mr Davidson and Mr Baker was informed of the complaint
against them on 21 March 2006 and instructed to file a response (Form JET 2). On 26
March 2006 Form JET 2 was received; it denied that Mr Davidson was his employer. Mr
Davidson was placed under curatorship on 6 April 2006 and Mr Davidson attended to Mr
Baker‟s mail. The matter was listed for a full hearing on 13 June 2006 before the
Employment Tribunal Chairman, David Le Quesne. Both parties were informed of the
hearing date by letter dated 25 May 2006.



                                            186
In the meantime the Tribunal was informed by Mr. Jim Davidson that he employed Mr
Price and Mr. Baker did not employ Mr. Price. This note was passed on to the Tribunal.


At the hearing on 14 June 2006, Mr Price appeared but neither Mr. Baker nor Mr.
Davidson appeared. During the hearing the Chairman examined the verbal evidence of
Mr Price in this matter and the various available documents including Forms JET 1 & JET
2, the note of the conversations with Mr. Davidson above, and a flyer advertising Mr.
Baker‟s painting and decorating business.


For the purpose of writing this judgment the Deputy Chairman has had the benefit of
seeing the Chairman‟s notes of that hearing. Following the conclusion of that hearing the
Chairman considered that in the circumstances Mr. Baker should have been told to attend
the Tribunal Hearing so that his evidence as to whether he employed Mr Price (and not
Mr. Baker) could be heard and considered. Accordingly, the Tribunal set a new date for
the hearing: 13 July 2006 at 09.30am. Mr. Baker and Mr Davidson were informed by
registered post (signed for) of this new date. Mr Price was also aware of this date.


The Tribunal has the power under the Employment (Jersey) Regulations 2005 to hear
complaints and make decisions in the absence of the parties.


On the 22 June 2006 Mr. Davidson informed the Tribunal Secretary that Mr. Baker would
be in the United Kingdom until the 4 September 2006. Mr. Davidson maintained that Mr.
Baker was employed by him and had a contract to prove that fact. The Tribunal secretary
informed Mr. Baker that both he and Mr. Baker were required to attend the Tribunal
Hearing of the 13 July 2006.


On the 13 July 2006 none of the parties attended the hearing.


The Tribunal has the power under the Employment Tribunal Regulations 2005 to hear
complaints and make decisions in the absence of the parties.


The Deputy Chairman considers that there has been confusion and much delay in this
case. All the parties have been given adequate notice of the hearing dates and for



                                             187
opportunities to change a date for a more convenient one if necessary and therefore an
opportunity to present their arguments, and it is now necessary to bring these issues to a
conclusion. Accordingly the Deputy Chairman sitting alone and based on the evidence
seen by the Chairman at the hearing of 14 June 2006 and his written conclusions of that
case, HEREBY FINDS as follows.


The Decision


On the 13 June 2006 the Chairman found that Mr Price‟s complaint form states that his
employers were both Mr Davidson and Mr Baker. The response form, apparently signed
by Mr Davidson, states that he alone employed Mr Price to work, and that the work was
on Mr Davidson‟s house. He also states that “I am prepared to pay him what is owed to
him by me”.


The Chairman was required to determine if Mr Davidson, Mr Baker, or both, employed
Mr Price. On the evidence of Mr Price, whom he appears to have questioned quite closely,
it was clear to the Chairman that Mr Baker alone was the employer, for the following
reasons:


   i    Mr Baker was the initial contact; he told Mr Price he had a job available.
   ii   Mr Baker agreed with Mr Price how much he was to be paid.
   iii Mr Price gave his social security card to Mr Baker.
   iv Mr Baker told Mr Price what work he was to do (the work was at Mr Davidson‟s
        house).
   v    Mr Baker‟s van advertised, as did his business cards and business „flyers‟ that he
        was in the business of painting and decorating.


The Tribunal finds that Mr Baker was Mr Price‟s sole employer. Having decided that Mr
Baker was Mr Price‟s sole employer, the Tribunal must consider Mr Price‟s claims against
Mr Baker.


Unpaid wages




                                             188
Mr Price‟s employment lasted 20 weeks, from 26th September 2005 to 29th January 2006 the
date he voluntarily left work. Mr Price should have been paid £150 for the first two weeks
and £250 weekly thereafter, amounting to £4,800.00. He was paid some cash, and the
Chairman accepted that the average cash payment was £35.00 weekly, amounting to
£700.00


Therefore the amount of unpaid wages that he is owed is;-


£4,800 - £700 = £4,100.00


Christmas bonus
The Chairman accepted on the evidence heard that Mr Price was promised a Christmas
bonus of £200.00.


Overtime
On the evidence he heard the Chairman accepted that Mr Price was told that he would be
paid double time for working on weekends, and that he did work some weekends. Mr
Price estimated that he worked on 9 weekend days, which would entitle him to £900.00,
but there is no record of this so the Tribunal thinks it fair to both him and Mr Baker to
reduce this by half, so £450.00 is due in respect of the overtime worked.


The total amount which Mr Baker must pay to Mr Price therefore is £4,750.00.


Mr Price has complained that he was not given a contract of employment, and the
Tribunal accepts that this is the case. This is an offence under article 9 of the Employment
Law, making Mr Baker liable to a fine. The Tribunal has not heard from Mr Baker and he
may genuinely have believed that he was not in fact the employer, though it is difficult to
see how this could be the case. In these rather unusual circumstances, and bearing in
mind that the maximum fine the Tribunal could impose is £5,000.00, a nominal fine of
£50.00 is made.


Schedule of Awards & Fines


Awards



                                            189
1. Unpaid wages due:                                                 £4,100.00
2. Christmas bonus due:                                                     £ 200.00
3. Overtime worked and unpaid:                                              £ 450.00
Total:                                                                      £4,750.00


Fines
1. Failure to provide written terms of employment
pursuant to article 4 of the Employment (Jersey) Law 2003. £ 50.00




Mrs Nicola Santos-Costa,
Deputy Chairman




Appendix B
                               Jersey Employment Tribunal
Case Number:           1810033 / 05


Applicant:             Mr Kevin McCauley
Respondent:            Mr Adrian Baker & Mr Jim Davidson


Case Summary:          Powers of the Tribunal to act in the absence of parties; unpaid
wages, holiday pay; failure to provide written statement of terms.


Hearing on:            13 July 2006


Before:                Mrs Nicola Santos-Costa, Deputy Chairman


Representation:        None of the parties appeared for this hearing.


The Facts


On the 17 October 2005, Mr McCauley filed JET 1 with the Employment Tribunal
complaining that he had been employed by Mr Adrian Baker as a painter and decorator



                                            190
for the period 1 September 2005 and 5 October 2005 but had not been paid in full by him
and had not received a contract of employment. Mr Baker was informed of the complaint
against him on 8 November 2005 and instructed to file a response (Form JET 2). No
response was received by the Employment Tribunal office and Mr Baker was instructed
again by letter dated 6 December 2005 to file Form JET 2, and again on 8 December 2005.
On 29 December Form JET 2 was received; it denied that Mr Baker was his employer. Both
parties were summonsed to a Directions Hearing on 24 May 2006 to clarify the position.
Mr Davidson was placed under curatorship during this time and the hearing was
cancelled. The matter was instead listed for a full hearing on 13 June 2006 before the
Employment Tribunal Chairman, David Le Quesne. Both parties were informed of the
hearing date by letter dated 25 May 2006.


In the meantime JACS had received a note on 28 April 2006 from a Mr. Jim Davidson
claiming that he had employed Mr McCauley and not Mr. Baker. This note was passed on
to the Tribunal.


At the hearing on 14 June 2006, Mr McCauley appeared but neither Mr. Baker nor Mr.
Davidson appeared. During the hearing the Chairman examined the verbal evidence of
Mr McCauley in this matter and the various available documents including Forms JET 1
& JET 2, the handwritten note of Mr. Davidson above, and a flyer advertising Mr. Baker‟s
painting and decorating business.


For the purpose of writing this judgment the Deputy Chairman has had the benefit of
seeing the Chairman‟s notes of that hearing. Following the conclusion of that hearing the
Chairman considered that in the circumstances Mr. Baker should have been told to attend
the Tribunal Hearing so that his evidence as to whether he employed Mr McCauley (and
not Mr. Davidson) could be heard and considered. Accordingly, the Tribunal set a new
date for the hearing: 13 July 2006 at 09.30am. Mr. Baker and Mr Davidson were informed
by registered post (signed for) of this new date. Mr McCauley was also aware of this date.
On the 13 July 2006, none of the parties attended the hearing.


The Tribunal has the power under the Employment (Jersey) Regulations 2005 to hear
complaints and make decisions in the absence of the parties.




                                            191
The Deputy Chairman considers that there has confusion and much delay in this case. All
the parties have been given adequate notice of the hearing dates and for opportunities to
change a date for a more convenient one if necessary and therefore an opportunity to
present their arguments, and it is now necessary to bring these issues to a conclusion.
Accordingly the Deputy Chairman sitting alone and based on the evidence seen by the
Chairman at the hearing of 14 June 2006 and his written conclusions of that case, HEREBY
FINDS as follows.


The Decision


On 14 June 2006 the Chairman found that Mr McCauley complained that he had not been
paid what was due to him, and that he was not given a contract of employment by Mr
Baker. His evidence, which the Chairman accepted, was that he met Mr Baker in a bar and
Mr Baker offered to employ him at the rate of £250 per week, payable a week in arrears.
The next day he met Mr Baker and was taken by him to work at Mr Jim Davidson‟s house
at 23, Clos de L‟Arsenal.


The Chairman also found that Mr Baker‟s response form denied that Mr McCauley was
an employee, and states “At no time was Kevin employed by me. He never worked at 23
Clos de L‟Arsenal…” The Chairman did not believe this. In the papers provided to the
Chairman is a „flyer‟ of Mr Baker‟s with the description “Painters Decorators & Building
Contractors”, and this fortified the Chairman‟s belief that Mr Baker was Mr McCauley‟s
employer. The Tribunal also has the letter apparently signed by Mr Davidson saying that
he employed Mr McCauley for two days, and that he was not employed by Mr Baker. In
the absence of both Mr Davidson and Mr Baker, the Chairman did not accept that this is
true and the Deputy Chairman agrees with him. Mr McCauley left his employment
voluntarily on 5 October 2005.


Mr McCauley claims £250 per week for the five weeks of his employment, from 1
September to 5 October 2005, amounting to £1,250.00.        From this must be deducted
the small amount that Mr McCauley was paid, which he estimated as between £80 and
£100 each week. The Tribunal will take the figure of £90, so that means £90 x 5 = £450
deducted from the £1,250.00 which leaves a balance of £800.00.




                                           192
Mr McCauley says that he worked for one bank holiday, in respect of which he was
entitled to an extra day of holiday but there are no bank holidays falling within the
period of his employment. However he is entitled to receive a minimum of 2 weeks
holiday a year, which for Mr McCauley would be 10 working days. He worked for 5
weeks which means he is entitled to 1 day‟s holiday, which at a rate of pay of £250 per
week, has a value of £50.00


The Law provides that an employee must be given a written statement of the terms of his
employment within four weeks of his employment starting. Mr Baker did not comply
with this. The Tribunal will only impose a nominal fine, because it has not heard from Mr
Baker, and he may have had a genuine belief that he was not the employer. Accordingly,
whilst the maximum fine is £5,000.00, in the circumstances of this case the fine will be
£50.00.


Schedule of Awards & Fines


Awards
1. Unpaid wages due:                                       £800.00
2. I day‟s holiday:                                                  £ 50.00
Total:                                                               £850.00


Fines
1. Failure to provide written
terms of employment pursuant to article
4 of the Employment (Jersey) Law 2003.                     £ 50.00


Mrs Nicola Santos-Costa,
Deputy Chairman




                                           193
                                Jersey Employment Tribunal
Case Number:                   0507111 / 06


Applicant:                     Matthew James Fennell
Respondent:                    J.W. Davidson and A.R. Baker


Hearing on                     27 September 2006
Before:                        Mr David Le Quesne, Chairman


Representation:
For Applicant:                 Mr Fennell represented himself
For Respondent:                Mr Davidson and Mr Baker did not appear


Preamble


This is the last of a series of cases which I heard this morning concerning Mr Baker and
Mr Davidson. Both of them were present for the McCauley and Price cases, which I heard
first, but then they both left, despite me warning them that the subsequent cases would
be heard even if they were not present, and advising them that they should stay. I heard
Mr Fennell‟s case, therefore, in the absence of the respondents.


1         Mr Fennell‟s evidence was that he was at Ouaisne with his father when they
struck up a conversation with Mr Davidson and Mr. Baker, whom they did not know.
During that conversation, the respondents offered Mr Fennell a job, and Mr Baker gave to
Mr Fennell his business card, which states “A.R. Baker Painters-Decorators & Building
Contractors.”


2         Mr Fennell said that he initially thought that Mr Baker was his employer, but
then, during his employment, he wondered if he and Mr Davidson were in some form of
partnership. He said “I never really knew who was my employer.” Further, Mr Fennell
said that Mr Baker was the person with whom he had most dealings; he sorted out all the
work to be done, and Mr Fennell rarely saw Mr Davidson.
          However, Mr Fennell gave his social security card and bank account details to Mr
Davidson. Mr Baker told Mr Fennell to go to Mr Davidson‟s house for wages for both Mr



                                              194
Fennell and Mr Davidson, which he did, only for Mr Davidson to say that he was not
paying him, and shut the door.
       Further, the written contract of employment shows Mr Davidson as the employer.
Mr Fennell told me that if it were not for the contract of employment, he would have said
that his employer was Mr Baker.


3      Save for the fact that the employment contract showed the employer as Mr
Davidson, all the indications to Mr Fennell were that his employer was Mr Baker. I regard
as particularly significant the business card which Mr Baker gave to Mr Fennell at
Ouaisne.
       In my judgement, Mr Fennell was employed by Mr Baker.


4      I award to Mr Fennell what he claims, save that I do not award to him the sum of
£98.23 in respect of petrol and half a day of overtime work because I am not satisfied that
he had a contractual entitlement to these sums. Therefore, I order Mr Baker, as Mr
Fennell‟s employer, to pay to Mr Fennell:
a      unpaid wages of £1,100, being his contractual entitlement for one month and one
day;
b      Holiday entitlement of £55.00;
c      Payment instead of notice of £275.00,
       Total = £1,430.00.




David Le Quesne, Chairman.




                                            195
                               Jersey Employment Tribunal
Case Number:                   0407109 / 06


Applicant:                     Jose Antonio Rodrigues
Respondent:                    J.W. Davidson and A.R. Baker


Hearing on                     27 September 2006
Before:                        Mr David Le Quesne, Chairman


Representation:
For Applicant:                 Mr Rodrigues represented himself
For Respondent:                Mr Davidson and Mr Baker did not appear


Preamble


This was the third case I heard this morning concerning Mr Davidson and Mr Baker. At
the start of the morning, Mr Davidson said that he was not prepared to be in the same
room as Mr Rodrigues, and when this case was called, he left. I warned him that the case
would continue in his absence, but to no avail.


1         Mr Rodrigues makes his claim only against Mr Davidson, whom he says was his
employer. The written contract of employment is between him and Mr Davidson. He
thought that Mr Baker was the foreman employed by Mr Davidson.


2         In view of the other cases I have heard concerning Mr Davidson and Mr Baker,
there is room for doubt that Mr Davidson, and not Mr Baker, is the employer, but, as I say,
Mr Rodrigues says that the employer was Mr Davidson, and I accept that.


4         Mr Rodrigues was told that he would be paid on 27th of each month; he was not
paid, and upon enquiry was told that the cheque would take three days to clear. There
was no cheque, and when the payment still was not made, Mr Rodriques left the job.


3         I accept the evidence of Mr Rodrigues, and order Mr Davidson to pay to Mr
Rodrigues the following:



                                              196
A      £1,400.00 for unpaid wages.
B      £58.32 for holiday pay.
C      £350.00 for payment instead of notice.
D      £58.32 for one day of work in addition to the month worked.


Total = £1,898.32.




                                           197
                                Jersey Employment Tribunal
Case Number:          0407110 / 06


Applicant:            Mrs Teresa Correia Rodrigues
Respondent:           Mr. James Davidson


Hearing on            27 September 2006


Representation:
For Applicant:        Mrs T Rolland
For Respondent:       Mr Davidson did not appear.
Witnesses:
For Applicant:        Mrs Teresa Rodrigues
For Respondent:       None


Preamble


As in the preceding case of Mrs Rodrigues‟ husband, Mr Rodrigues, Mr Davidson refused
to be in the same room as Mrs Rodrigues, despite my warning to him that the case
nonetheless would proceed.


1      Mrs Rodrigues says that she was employed by Mr Davidson as a house cleaner,
working on alternate days at the house of Mr Davidson and Mr Baker. From the figures
she produced to me showing the hours she worked, and where she worked, it appears that
she did more work for Mr Baker than for Mr Davidson. However, despite some
misgiving, I accept that her employer was Mr Davidson.


2      As with all the other cases involving Mr Davidson and Mr Baker or either of them,
Mrs Rodrigues‟ complaint is that she has not been paid what is due to her. When she was
not paid after the first week, she enquired of Mr Baker, who told her to call Mr Davidson,
who said he would pay. He did not pay. Mr Davidson then asked if he could pay Mrs
Rodrigues combined with his payment to her husband, at the end of the month, to which
she agreed. She was not paid.




                                           198
3      Mrs Rodrigues claims unpaid wages of 80 hours at £9.00 per hour, amounting to
£720.00, and I order Mr Davidson to pay that amount to her.
Total to Pay: £720.00




                                           199
                              Jersey Employment Tribunal
                                  INTERIM HEARING
Case Number:                  1105066 / 06


Applicant:                    Mr Stephen Coleman
Respondent:                   Digital Communications Systems (Commercial Division)
Ltd


Hearing on                    28 September 2006
Before:                       Mrs Nicola Santos, Deputy Chairman
                              Mr Peter Woodward and Mr Paddy Kirwan,
Panel Members


Representation:
For Applicant:                Mr Coleman represented himself
For Respondent:               Mr David Harper, Managing Director.


Witnesses:
For Applicant:                None
For Respondent:               None


1. At a Directions Hearing held on 21st September 2006, the Deputy Chairman sitting
alone directed that the issue of whether Mr. Coleman was an employee of Digital
Communications from a date earlier that 1st February 2006 should be determined by a
Tribunal at an Interim Hearing convened for that purpose. The Deputy Chairman also
directed that Mr. Coleman‟s claim that he was unfairly dismissed from his position as
Operations Manager of Digital Communications on 14th March 2006 would be heard at a
subsequent Tribunal convened subject to the decision reached by the tribunal at the
Interim Hearing and to Mr. Coleman being able to establish that he was continuously
employed for 26 weeks or more prior to the date of his dismissal.


2. Mr. Coleman commenced working for Digital Communications on the 21st July 2004. It
is not denied that he worked there until his dismissal on 14th March 2006. Mr. Coleman
gave evidence that as far as he was concerned he was engaged by Digital Communications



                                             200
as a full time employee from the 21st July 2004. Mr. Harper gave evidence that he engaged
Mr. Coleman as a consultant because he was aware that Mr. Harper had other business
interests and also because Mr. Coleman‟s services were cheaper if he worked on a self
employed basis than if he was employed by the Company. Mr. Coleman and Mr. Harper
were friends and Mr. Harper knew that Mr. Coleman needed a job at that time. Mr.
Coleman was brought in to advise Mr. Harper on the operational side of the business
which allowed Mr. Harper to concentrate on other areas. Their working relationship was a
great success and Mr. Harper gave evidence that the business was strengthened by Mr.
Coleman‟s contribution. Mr. Harper maintained that Mr. Coleman‟s self employed status
was evidenced by the fact that he was not included in the Company‟s Social Security
returns whereas all other employees were. Mr. Coleman replied that as he did not receive
a wage slip he assumed that Mr. Harper was paying the social security on his behalf. Mr.
Coleman admitted to holding his social security card still. Mr. Harper said all employees
of the Company received a wage slip but Mr. Coleman did not as he was self employed;
Mr. Harper admitted that he did not receive invoices for payment of Mr. Coleman‟s time
(which he received and paid from other sub-contractors). Mr. Harper said he paid Mr.
Coleman weekly by cheque in this casual manner without an invoice because they were
friends. In early 2005 Mr. Harper went on holiday with his family and left Mr. Coleman in
charge of the business in his absence. By the middle of 2005 Mr. Harper realizing Mr.
Coleman‟s value to the business, was negotiating a package with Mr. Coleman whereby
he would become a senior employee with an interest in the equity of the Company. These
negotiations were not concluded but in February 2005 the Company put Mr. Coleman on a
formal footing and began to issue him with a wage slip and to deduct social security and
income tax from his wages. Mr. Harper said that it was at this point that Mr. Coleman
became an employee. Mr. Coleman was sacked by Mr. Harper on 14th March 2006 which
was only 6 weeks after he became an employee. In order to bring a case for unfair
dismissal Mr. Coleman has to establish that he was continuously employed for 26 weeks
or more, pursuant to article 73 of the Employment (Jersey) Law 2003. This would mean
that Mr. Coleman must have been employed by the Company from at the latest the week
commencing 12th September 2005.


3. The Tribunal has considered 3 elements when looking at Mr. Coleman‟s employment
status within Digital Communications:
The amount of control exercised over him by Mr. Harper in the performance of his duties;



                                           201
The extent of Mr. Coleman‟s integration into Mr. Harper‟s business;
The economic reality of the situation – was Mr. Coleman in business on his own account.
In addition the Tribunal has considered all the other relevant factors from the evidence
heard so far in this matter.


4. The Tribunal finds that Mr. Harper exercised little control over the activities of Mr.
Coleman due to the high level of competency of Mr. Coleman in the performance of his
duties and the degree of trust that existed between the parties. Although Mr. Harper did
require notice of Mr. Coleman‟s holidays and was in charge of finding a replacement for
Mr. Coleman if he had been unavailable for some reason, on the whole, the test of control
was not an issue in this relationship.


5. The Tribunal finds that within a very short time Mr. Coleman was an integral part of
the business – this is shown by Mr. Harper leaving Mr. Coleman in charge when he went
on an extended holiday in early 2005. Also Mr. Coleman‟s role and authority in the
business was accepted by employees and third parties and actively promoted by Mr.
Harper. By this point Mr. Coleman‟s role was not that of a short term consultant assisting
the Company with a particular aspect of its business. Whilst the function of operations
manager existed before and after Mr. Coleman‟s time at Digital Communications (and
performed by Mr. Harper), Mr. Coleman made it a managerial role and introduced
procedures and policies which aided the company in its business.


6. The Tribunal finds that the economic reality of the relationship was that Mr. Coleman
was not in business on his own account. Mr. Coleman did not advertise himself as a
consultant or hold himself out as one. Mr. Harper would have known that this was Mr.
Coleman‟s only job and only income.


7. Conclusion.
The Tribunal finds on the evidence it heard in this matter to date, that the relationship
between Mr. Coleman and Mr. Harper started in July 2004 on an ad hoc basis: Mr.
Coleman was brought in, as a friend, who needed a job, to advise Mr. Harper on the
operational side of the business. This is a personal strength of Mr. Coleman‟s which
perfectly complemented Mr. Harper‟s business activities. Leaving Mr. Coleman in charge
during Mr. Harper‟s holiday in 2005 confirmed the integration of Mr. Coleman‟s role into



                                           202
the business and by the summer of 2005 the parties were discussing Mr. Coleman‟s future
and status in the business which indicates his value and worth to the Company by that
point and complete integration into it. When this is looked at against the relationship of
trust existing between Mr. Harper and Mr. Coleman at that time, Mr. Coleman‟s status in
the Company and the fact that this job was his sole income, the Tribunal is satisfied that
by 12th September 2005 Mr. Coleman was in fact an employee of Digital Communications
despite his continued treatment by it as self employed. Accordingly Mr. Coleman has the
locus standii to bring a claim of unfair dismissal before the Tribunal.


8. This decision is entirely separate from any decision the Tribunal will reach in respect of
the pending unfair dismissal claim of Mr. Coleman which will depend on separate facts
and evidence being given and no inference should be drawn (if possible) from this
decision as to how the Tribunal will proceed in respect of this other claim, when it comes
before it.




                                             203
                              Jersey Employment Tribunal
Case Number:                 2205077/06
Applicant:                   Mr. Miguel Veloso
Respondent:                  Jersey Milk Marketing Board,
t/a Jersey Dairy


Case Summary:         Unfair dismissal based on the ground of employee‟s physical
incapacity


Hearing on                   2nd & 3rd October 2006
Before:                      Mrs Nicola Santos-Costa, Deputy Chairman
                             Mr. Peter Woodward – Panel Member
                             Mr. Alan Hall – Panel Member


Representation:
For Applicant:        Mr. N Corbel, Regional & Industrial Organiser, T&GWU
For Respondent:       Mr. G Baxter, Viberts


Witnesses:
For Applicant:               None
For Respondent:              Dr P Terry, GP & Company Doctor
                             Mrs L Pestana, former HR Manager
To advise Tribunal:          Mr. J Guilleaume, Assistant Head of Production Jersey
Dairy                        Mr. A Le Gallais, Non Executive Chairman of Jersey Dairy
The Facts


Mr. Veloso was employed by Jersey Dairy on 31st July 2000 as a factory operative. In July
2002 Mr. Veloso injured his back helping to move a friend‟s boat. He was signed off work
for 18 days. In August 2003 Mr. Veloso was signed off work for 4 weeks because of back
pain. In December 2005 in the course of an interview conducted by the then HR Manager,
Mrs Lorna Pestana, following an absence from work for a matter unconnected with his
back, Mrs Pestana discovered that Mr. Veloso was claiming incapacity benefit for the
injury to his back which had been assessed as 10% in August 2003, rising to 15% in 2004.
Jersey Dairy had been unaware of Mr. Veloso‟s incapacity prior to this interview. At this



                                           204
time Mr. Veloso worked in the skim powder drying plant of Jersey Dairy. This involved
moving bags of skimmed milk powder from the condenser onto pallets for storage. These
bags generally weighed 25 kilos each and had to be moved 3-5 metres to the pallet,
perhaps involving lifting to shoulder height in order to put them on the pallet. Mrs
Pestana was understandably concerned that this work would cause unnecessary strain for
Mr. Veloso‟s back and on querying it with him, Mr. Veloso admitted at a meeting of the
two of them on 13th December 2005 that working on the condenser for a period of time did
cause him some problems, but otherwise he was fine in his work. In January 2006, having
worked on the condenser for approximately 3 months, Mr. Veloso asked his line manager,
Gary Guilleaume if he could be moved as his back was hurting him. He also asked Steve
Breese, his manager, on the same day. After 2 weeks he asked again, and was told by Mr
Breese to see Mr Guilleaume, who was in charge of the team. Mr. Veloso says that Mr
Guilleaume did not take any notice of his request, which was unusual as they got on well.
Mr Guilleaume does not recall this conversation. On the 8th February 2006, Mr. Veloso
was signed off for 12 days because of „muscle spasm and back pain‟. On his return to
work, Mrs Pestana conducted a „Back to Work‟ interview and concluded that as Mr.
Veloso was not „feeling 100%‟ he should be referred to the Company Doctor for an
assessment of his back pain and an opinion „on the capability of Mr. Veloso and if he
would be able to continue in his role and perform fully without any restrictions‟. Mr.
Veloso attended Dr Terry on 22nd February 2006 and following examination Dr. Terry
concluded that Mr. Veloso‟s “back problem would be exacerbated by heavy lifting… and
that Mr. Veloso should avoid such activities. If he is able to do work involving light
duties, i.e. lifting no more than 5Kgs … I think he can continue in his current post. But if
lifting heavier [than] this cannot be avoided, then I think his job will continue to
exacerbate his condition and that his future role needs to be assessed”. Dr. Terry also
asked to be given a tour of the Dairy so he could gain an impression of the various jobs
involved. Dr. Terry also used this examination as a reason to sign off Mr. Veloso for
another 2 weeks in order to rest his back further. Mr. Veloso expressed surprise at this
sick leave but did not refuse it. On Mr. Veloso‟s return to work on 6th March 2006 Mrs
Pestana conducted another „Back to Work‟ interview and noted that Mr. Veloso was still
in pain and taking paracetamol. The note also records that Mrs Pestana and Mr. Veloso
discussed Dr. Terry‟s report and agreed that an assessment of weights in the factory
would be carried out and a meeting arranged to discuss the outcome. Mr. Veloso gave
evidence that he was pleased that someone was doing something about his situation at



                                            205
last. Mr. Veloso went back to work in the factory on the air tanks and pipes; he was not
sure if this was because of his request to move from the condenser or part of the regular
rotation of factory operative staff.


On 17th March 2006 Mrs Pestana wrote to Mr. Veloso requesting a meeting with him on
22nd March 2006. “to discuss your capability”. Mrs Pestana referred in that letter to Dr.
Terry‟s visit to the factory on the previous day and stated that “following a full tour of
your area of work and what was involved, [Dr. Terry] confirmed that you would be
unable to carry out these duties in the long term”.


Mrs Pestana confirmed to the Tribunal in evidence that this was the verbal conclusion of
Dr. Terry passed on to her during the tour of the Dairy. Dr. Terry did not confirm his
conclusions in writing until 1st May 2006, see below. Finally, Mrs Pestana advised Mr.
Veloso that he may be accompanied by a representative or colleague of his choice. The
letter was openly copied to Mr Parmiter, Mr. Veloso‟s manager and Mr Breuilly, his union
representative.


Mrs Pestana said in evidence that she advised Mr Breuilly that the meeting of the 22nd
March 2006 was about Mr. Veloso keeping his job. Mrs Pestana also said she advised Mr.
Veloso of this fact (Mr. Veloso denied this) and that she suggested that he meet Patricia
Rowan at JACS for advice prior to the meeting. Mr. Veloso said she suggested this after
the meeting of the 22nd March 2006. Unfortunately Mrs Pestana did not keep any file notes
of these conversations.


The meeting of 22nd March 2006 was attended by Mrs Pestana, Mr Parmiter, Mr. Veloso
and Mr Breuilly. Mrs Pestana gave evidence that they discussed the doctor‟s report and
visit, the weight‟s report and the possibility of undertaking other jobs in the factory and
the conclusion was, despite Mr. Veloso‟s protestations, that the weights in all the other
factory tasks were simply too heavy for Mr. Veloso and that for health and safety reasons
Mr. Veloso would have to be dismissed on the ground that he was incapable of
performing as a factory operative at Jersey Dairy. The decision was taken that Mr. Veloso
should cease working immediately but be paid to the end of the month and then receive 2
month‟s notice and various other payments that he was entitled to. No minutes were kept
of this meeting by any of the parties.



                                            206
Mr. Veloso gave evidence that he was amazed by the outcome of the meeting as he
thought it was purely to discuss the doctor‟s report and the weight‟s report and to discuss
what could be done for him. He immediately told Mr Breuilly of his intention to appeal.
He said in evidence he felt Mr Breuilly did not know what the meeting was about either.
Mr. Veloso left Mr Breuilly to organise his appeal.


Mr Breuilly gave notice of his intention to appeal against the decision and requested that
it be heard by the Chairman of Jersey Dairy. Mrs Pestana explained that this meant that
the appeal went straight to Stage 2 of the Appeals process; Stage 1 not being utilised. It
was not clear to the Tribunal if Mr Breuilly realised that this was the effect of his request.


Mr Breuilly stated that the grounds for appeal were:
      that Mr. Veloso had been carrying on his duties before being signed off by his
       doctor
      that Mr. Veloso had not complained about his duties
      that a second opinion was not obtained regarding his injury and his capability
      that the Dairy had lost a skilled operator.


The Appeal was heard on the 5th May 2006 by Mr Andrew Le Gallais, Chairman of the
Jersey Milk Marketing Board. Some minutes of that meeting were made by Mrs Pestana.
Mr Corbel (the T&GWU Area Representative) represented Mr. Veloso and complained
that he had been unfairly dismissed because a second opinion was not offered from a
doctor, other than a G.P. Mr Corbel also asked for a risk assessment to be carried out on
Mr. Veloso‟s role in the factory. From the minutes and the evidence heard there does not
appear to have been much discussion of the points of view of the parties. Mr Le Gallais
indicated that he would bear these matters in mind when reading the file and also visit
the factory to assess Mr. Veloso‟s job.


On the 1st May 2006, Dr. Terry confirmed in writing his conclusions following his visit to
the factory on 16th March 2006 and confirmed that Mr. Veloso‟s, „lifting weights between
10 and 25 kgs on a regular basis would do [him] harm and irreparable back damage‟. It is
not clear if this letter was shown to Mr. Veloso or his advisers (as Mr. Veloso had been




                                             207
sacked by the time it arrived), but Mr Le Gallais said in evidence that he recalled seeing it
in his pack of papers prepared for him by Mrs Pestana.


Mr Le Gallais delivered his decision on 18th May 2006 based on his visit to the factory to
observe the skim powder drying plant, conversations with senior management, Mr.
Veloso‟s absences from work, the contents of JACS guidance note 6, Dr Terry‟s
correspondence especially after his visit to the factory, the weights report, the existence of
the incapacity allowance received by Mr. Veloso and the advice given by Mrs Pestana that
Mr. Veloso should visit JACS. Mr Le Gallais concluded that:
      1. The Jersey Dairy had acted fairly in dismissing Mr. Veloso on the grounds of his
         capability in the circumstances, and
      2. A risk assessment for operatives of the skim powder drying plant should be
         carried out.


Mr. Veloso applied to the Jersey Employment Tribunal on the 22nd May 2006 on the
ground that he had been unfairly dismissed.


The Law
Article 64 of the Employment (Jersey) Law 2003 („the Law‟) provides as follows:


64     General
(1)    In determining for the purposes of this Part whether the dismissal of an employee is
fair or unfair, it shall be for the employer to show –
(a)    the reason (or, if more than one, the principal reason) for the dismissal; and
(b)    that it is either a reason falling within paragraph (2) or some other substantial reason
of a kind such as to justify the dismissal of an employee holding the position which the
employee held.


(2)    A reason shall fall within this paragraph if it –
(a)    relates to the capability or qualifications of the employee for performing work of the
kind which he was employed by the employer to do;


(3)    In paragraph (2) (a) –




                                                208
(a)    “capability”, in relation to an employee, means his capability assessed by reference
to skill, aptitude, health or any other physical or mental quality; and
(b)     “qualifications”, in relation to an employee, means any degree, diploma or other
academic, technical or professional qualification relevant to the position which he held.


(4)     Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having regard to the
reason shown by the employer) shall –
(a)     depend on whether in the circumstances (including the size and administrative
resources of the employer‟s undertaking) the employer acted reasonably or unreasonably
in treating it as a sufficient reason for dismissing the employee; and
(b)    be determined in accordance with equity and the substantial merits of the case.
(5)    Paragraph (4) shall be subject to Articles 63 and 65 to 72.


Article 64 (2) above sets out the potentially fair reasons for dismissing an employee.
Article 64(2) (a) relates to the capability or qualification of an employee required for
performing work of a kind which he is employed to do. Accordingly it is necessary for the
Tribunal to consider:
      1. Whether Jersey Dairy established Mr. Veloso‟s lack of capability as a reason for
         his dismissal, and
      2. The reasonableness of his dismissal on the ground of his lack of capability.


Capability


Article 64(3) (a) defines capability as being able to be assessed by reference to an
employee‟s, „health or any other physical … quality‟. Therefore dismissal for ill health, as
in Mr. Veloso‟s case, is a potentially fair reason for a dismissal provided that it relates to
the employee‟s capability to perform work of the kind which he was employed to do, and
that it was sufficient reason to dismiss.


The Tribunal heard evidence from Mr. Veloso that his back was hurting as a result of
working at the skim powder drying plant and evidence was produced in the form of the
various sick notes issued to Mr. Veloso on the 12th July 2002, 18th July 2002, 11th August
2003, 18th August 2003, 29th August 2003, 8th February 2006 and 22nd February 2006 all



                                               209
relating to various degrees of back pain. The Tribunal also heard that Mr. Veloso had
been in receipt of Long Term Incapacity Allowance since August 2003 in respect of his
back injury. Furthermore the Tribunal was given a copy of Dr. Terry‟s letter of 24th
February 2006 diagnosing Mr. Veloso‟s back problems. The Tribunal heard evidence,
described above, that work at the condenser in the skim powder drying plant, where Mr.
Veloso has been working for 3 months prior to his dismissal, involved regularly lifting
and carrying 25 kilo bags of skim powder.


The Tribunal accepts that if Mr. Veloso had continued in his job of factory operative at
the condenser full-time he would have caused more injury to his back, and that Jersey
Dairy as a responsible employer, once alerted to Mr. Veloso‟s injury, could not allow him
to continue to do such work. The Tribunal accepts that the Jersey Dairy conducted an
assessment of the various key items in its factory (as reflected in the weight‟s report) and
finds that Mr. Veloso was dismissed by reason of his apparent incapability of continuing
to act as a Factory Operative within Jersey Dairy.


Reasonableness of the Dismissal
It is also necessary for the Tribunal to consider whether Jersey Dairy acted reasonably in
treating Mr. Veloso‟s back injury as a sufficient ground for dismissal. Here it is also
necessary to look at the procedure that was followed when reaching that decision.


There have been no previous cases on „capability dismissals‟ under the Law in Jersey, so it
has been necessary to look at English precedent for guidance. There it is well established
that in cases involving ill health or disability, there should be:
      Consultation with the employee
      Medical investigation, and
      Consideration of alternative employment.


The Tribunal considers these to be perfectly reasonable points in a dismissal process
involving the capability of an employee.


The leading case in this area in England and Wales is East Lindsey District Council v
Daubney 1977 ICR 566; where Mr Justice Phillips said:




                                              210
„Unless there are wholly exceptional circumstances, before an employee is dismissed on
the ground of ill health it is necessary that he should be consulted and the matter
discussed with him and that in one way or another steps should be taken by the employer
to discover the true medical position. We do not propose to lay down detailed principles
to be applied in such cases, for what will be necessary in any one case may not be
appropriate in another. But if in every case employers take such steps as are sensible
according to the circumstances to consult the employee and to discuss the matter with
him, and to inform themselves upon the true medical position, it will be found in practice
that all that is necessary has been done. Discussions and consultation will often bring to
light facts and circumstances of which employers were unaware, and which will throw
new light on the problem. Or the employee may wish to seek medical advice on his own
account, which, when brought to the notice of the employer‟s medical advisers, will cause
them to change their opinion. There are many possibilities. Only one thing is certain, and
that is that if the employee is not consulted, and given an opportunity to state his case, an
injustice may be done.‟


The Tribunal accepts that Jersey Dairy conducted Back to Work interviews on 20th
February 2006 and 6th March 2006, the days Mr. Veloso came back to work after having
been signed off for back pain by his own G.P. and the Company Doctor. It also accepts
that the Employer acted expediently in sending Mr. Veloso to its Company Doctor for
assessment following the first period of back injury in 2006. The Back to Work interview
notes contain a record of conversations between Mr. Veloso and Mrs Pestana, even noting
that Mr. Veloso had not declared his incapacity benefit on his sickness certificates and
that Dr. Terry‟s report was discussed by them. The 6th March 2006 note also states that, „it
was agreed that an assessment of weights will be carried out and a meeting arranged to
discuss the outcome‟. There is no note on this interview record or any other document
produced to the Tribunal that the meeting referred to above, could lead to Mr. Veloso‟s
dismissal or that Mr. Veloso was advised to seek advice at JACS. Mr. Veloso gave
evidence that he left the 6th March meeting feeling pleased that someone was going to do
something, at last, about his situation. Mrs Pestana says she did mention these matters to
him, but the Tribunal after careful consideration finds that she may be mistaken; after all
Mrs Pestana is a well qualified and experienced HR manager and her work seems very
well organised in every other respect so it seems at odds that these two important matters
should not be noted by her in her records.



                                             211
Mrs Pestana was amongst a party who showed Dr Terry around the Jersey Dairy plant on
16th March 2006. At the end of that meeting, having seen Mr. Veloso‟s work areas, Dr.
Terry concluded verbally to Mrs Pestana that his original conclusion was correct and Mr.
Veloso was incapable of doing his job at the Dairy. Mrs Pestana communicated this
conclusion to Mr. Veloso in the letter of 17th March 2006 (written the next day) at the same
time asking him to attend a meeting with her and Mr Parmiter on the 22nd March. This
letter does not mention that it will be a disciplinary hearing or that Mr. Veloso‟s job is at
risk. It also does not suggest that he visit JACS for advice although it does tell him that he
may be accompanied by a friend or colleague. Mrs Pestana says that she told Mr Breuilly,
the union representative that Mr. Veloso‟s job was at risk. This was not communicated to
Mr. Veloso. No evidence was heard from Mr Breuilly.
The Tribunal finds it unfortunate that no minutes of the meeting of 22nd March 2006 were
kept. It appears that there was little discussion about the medical report, weights
assessment report or redeployment options considered at the meeting. The evidence
indicated that it appeared that Mr. Veloso‟s opinions were not sought. From the evidence
heard, this meeting appeared to go straight to the conclusion of Mr. Veloso‟s dismissal.
There seems to have been no consideration of suspending Mr. Veloso pending the
outcome of any appeal (or period for lodging an appeal), or for Mr. Veloso to have time to
consider the employers‟ view of his continuing incapacity and his future role in the Dairy.
The Tribunal notes with concern that Mr. Veloso was not advised at the meeting of his
right to appeal this decision. The Tribunal notes that Mrs Pestana did not write to Dr.
Terry asking him to confirm his verbal report of the 16th March 2006, until the 31st March
2006 and that his reply was dated 1st May 2006: after Mr. Veloso was sacked. Importantly,
this letter contained information that Mr. Veloso could lift weights up to 10kgs and
heavier weights on an irregular basis. This, in the opinion of the Tribunal, is a crucial
difference to the Doctor‟s previous opinion of Mr. Veloso being „incapable of doing his
job‟. Furthermore the Tribunal, at its insistence obtained a competency matrix of the jobs
involved in the production plant at the Dairy. A short exercise was conducted at the
hearing of the weights involved in each aspect of the production process. The Tribunal is
concerned to note that such an exercise does not seem to have been conducted by the
employer: certainly no evidence was made available of it at the hearing and Mr Le Gallais
gave evidence that such a report was not in his pack. A formal consideration of alternative




                                             212
employment in the Dairy for Mr. Veloso should have been conducted: it is not necessary
that it would have been successful for Mr. Veloso.


In the letter of appeal Mr Breuilly asked for a second medical opinion to be obtained.
Admittedly this point was not pressed by Mr Breuilly (who was entrusted by Mr. Veloso
to deal with his appeal on his behalf) but likewise, the Dairy did not pick it up either. By
the time of the appeal hearing no such report was prepared and the Tribunal is surprised
that Mr. Veloso‟s union had not dealt with this matter itself in view of the Dairy‟s silence
on this point. Again at the appeal this point is not raised vigorously by Mr. Veloso‟s
representative and the Chairman of the appeal did not independently adjourn the hearing
so it could be obtained. The Chairman also failed to obtain a Risk Assessment of Mr.
Veloso‟s role prior to making his decision.


The failure to obtain a second medical opinion is important. The Tribunal finds that
decisions to dismiss on medical grounds will not be reasonable unless the employer has
all the relevant facts which are either known or could reasonably be discovered at the
time the decision is made. Here, Jersey Dairy had a report from their own Doctor (a G.P.,
not a specialist) and a further verbal report (which crucially was more specific when
received in writing some 5½ weeks later) from that same person. The Dairy also
steadfastly ignored the employee‟s request of a further examination: they did not even
give a reason why they would not obtain it. It was clear from the evidence that Mr. Veloso
disagreed with the diagnosis given and the Tribunal considers it reasonable to allow a
second opinion to be produced (even if it is at the employee‟s own cost) before a decision
to dismiss is taken. This point should have been followed up and the Jersey Dairy should
have made it entirely clear that they had no intention of obtaining a second opinion and
suggested that Mr. Veloso obtain his own report in time for the Appeal.


The Tribunal is also concerned that the Appeal hearing took place 6 weeks after Mr.
Veloso was dismissed, and therefore after the fact. The Chairman did not use the
opportunity to take a fresh look at the medical opinions (it was not clear to the Tribunal if
Mr. Veloso ever even received a copy of Dr. Terry‟s letter of 1st May), or to draw up a
competency matrix in order to consider the feasibility of lighter duties. Further, the lack
of manual handling training does not appear to figure in the Chairman‟s report or the lack
of risk assessments ordered by the Company when Mr. Veloso‟s injury first came to light.



                                              213
The appeal was handled in a well intentioned manner but based solely on the
information provided by the Company: no consideration was given to the process of the
dismissal at this stage or any other. This Tribunal finds that the Chair‟s of appeals‟
processes are the last chance for an employee to test „the reasonable response‟ of his
employer to that employee‟s situation and the introduction of the Employment (Jersey)
Law 2003 has raised the bar – such Chairman must conduct these reviews in an
independent, objective manner and ask for whatever further information or
investigations are necessary to ensure that they have reached a balanced decision. The
Tribunal would advise all such Chairman of appeal or review bodies to contact JACS for
information about their role or training.


DECISION


This was a difficult case for the Tribunal to deal with. Throughout this hearing the
process was hampered by the lack of written evidence and failed recollections of events.


It is the opinion of the Tribunal that it would have been the act of a reasonable employer
to indicate clearly to Mr. Veloso that the sanction of dismissal could follow from the
meeting of the 22nd March 2006. A reasonable employer would have obtained a second
medical opinion from a specialist in the area or clearly indicated in advance that it was
not going to do so and that the employee should obtain his own report if he considers it
necessary. A reasonable employer would have anticipated an appeal from its decision to
dismiss made at the meeting of 22nd March 2006 and made plans to stay its hand over
dismissal pending such appeal. The Tribunal accepts that Jersey Dairy had reasonable
concerns that Mr. Veloso should not continue to lift weights of 5 kilos or more pending
such appeal and thus they should have endeavoured to move him to lighter duties or
suspended him on normal pay during this period. Either action would have shown Jersey
Dairy to be exercising its duty of care to its employees. Instead Jersey Dairy chose to
dismiss Mr. Veloso immediately based on a GP‟s examination of Mr. Veloso and a verbal
report by the same doctor which was found by the Tribunal to be at odds with his written
report received by the employer some 5½ weeks after Mr. Veloso‟s dismissal. The
Tribunal also considers that a reasonable employer faced with dismissing an employee
for physical incapacity would have commissioned a formal competency matrix assessing
the role of Mr. Veloso in the Dairy against the limits of his physical capacity. The



                                            214
Tribunal would have expected to have seen evidence that the employer, on learning of
Mr. Veloso‟s continuing injury to his back, ordered a risk assessment of back injury in the
skim powder drying plant and ensured that training and guidance in manual handling in
the production plant was up to date. Jersey Dairy chose to do none of these things at this
point. Instead it decided to dismiss Mr. Veloso shortly after receiving the Company
Doctor‟s verbal report and with little evidence of analysis of Mr. Veloso‟s situation and
consideration of the alternatives to his dismissal. Finally there was also little evidence of
consultation with Mr. Veloso about Jersey Dairy‟s position in this matter. For these
reasons the Tribunal is convinced, on the basis of the evidence heard and presented to it,
that Mr. Veloso‟s dismissal on the grounds of his incapacity was unfair because Jersey
Dairy failed to act reasonably in its process of dismissing this employee.


AWARD


Mr. Veloso worked for Jersey Dairy for more that 5 years and in accordance with the
provisions of the Employment Awards (Jersey) Order 2005, the Tribunal hereby awards 26
weeks pay to Mr. Veloso.


= £423.49 gross per week x 26 weeks = £11,010.74




                                             215
                                 Jersey Employment Tribunal


Case Number:                     0506082/06


Applicant:               Mr. Darren Dobson
Respondent:              101CD.com Online Limited („101‟)


Case Summary:            Unfair dismissal for gross misconduct.


Hearing on               12th & 13th October 2006


Before:                  Mr David le Quesne, Chairman
                         Mr Peter Woodward and Mr Tim Langlois, Panel Members
Representation:
For Applicant:           Applicant represented himself
For Respondent:          Respondent was represented by its director, Mr. Paul Donovan.


Witnesses:
For Applicant:           Mr Darren Dobson
                                 Mrs Tracey Dobson
                                 Mr Tony Cawley
                                 Mr Rex Oliver


For Respondent:                  Mr Paul Donovan
                                 Mrs Julie Virks
                                 Mr Chris Casey
                                 Mr Nik Mildenhall
                                 Mr Alan Duncan
                                 Mr James Gray
The Facts


1.        The respondent, which we shall call „101‟, is in the business of selling on line CDs,
DVDs and records from premises in St. Peter, Jersey.




                                               216
The complainant was, until dismissed, the operations manager of 101, which means that
he was the senior employee, answerable to the director, Mr. Donovan. He was employed
on 16th May 2003 until he was summarily dismissed for gross misconduct on 10th May
2006, and was paid an annual salary of £37,674.00.


2.     Mr. Dobson claims that he was unfairly dismissed.


3.     At this stage, we can summarise the two grounds on which Mr. Donovan on
behalf of 101 dismissed Mr. Dobson as:


a.     During Mr. Donovan‟s absence from Jersey from 5th March to 7th May 2006, Mr.
Dobson, who was left in charge of 101, neglected it and spent a significant amount of
time, when he should have been working for 101, actually working for his own business;


b.     In addition, Mr. Dobson‟s failure to inform Mr. Donovan that he had started his
own online retailing business, despite being strongly advised by Mrs. Virks to inform
him, and despite being invited by Mr. Donovan on his return to tell him anything he, Mr.
Dobson, thought he should know, caused such a breakdown in Mr. Donovan‟s
relationship with Mr. Dobson, that the employment relationship could not continue.


4.     We heard and were shown much evidence, some of it quite technical and difficult
to understand, but as the case developed the issues narrowed, as will be seen later in this
judgment.


Mr. Dobson‟s case


5.     Mr. Dobson said that he had been in the company from the beginning and that he
had worked very hard; of that we have no doubt, and indeed we understood Mr. Donovan
to acknowledge that Mr. Dobson had played a significant part in the development of 101‟s
business.


6.     Sometime in 2005, Mr. Dobson registered the email address „Forgettherest („FTR‟)
but he did not use it until March 2006. The business which Mr. Dobson and his wife
started to operate under that name was the supply of goods – mainly earphones –



                                            217
supplied by Baltine Limited. It was not seriously suggested that Mr. and Mrs. Dobson‟s
business competed with 101.


7.     Whilst we are satisfied that the intention was that Mrs. Dobson would do most of
the work on FTR, we believe that significant work was done by Mr. Dobson in relation to
FTR whilst Mr. Donovan was away.


8.     We do not regard as particularly important the debate over Mr. Dobson‟s use of
his personal laptop at work, for the evidence of the respondent‟s witnesses was that it was
only seen on Mr. Dobson‟s desk at work on a couple of days.


9.     Equally, we do not regard as particularly relevant the issue of whether or not,
whilst Mr. Donovan was away, business was slack. The evidence suggested that it was,
but this has little bearing on the decision we have to make.


10.    Mr. Dobson told us that, when he returned from holiday in April 2006 he went to
speak to Mrs. Julie Virks about his business, FTR, because he was concerned about how
Mr. Donovan would react when he learned that he, Mr. Dobson, had his own business.
Mr. Dobson said that he trusted Mrs. Virks (whose evidence we shall refer to later in this
judgment), not least because she had given advice on Mrs. Dobson‟s online business.


       He said that Mrs. Virks told him that Mr. Donovan would take a dim view; this
left Mr. Dobson worried and confused.        He had hoped that 101 would provide the
“fulfilment” for FTR, which we understand to mean the physical process of supplying the
goods to the customers. Mrs. Virks advised Mr. Dobson to contact Mr. Donovan
immediately, but he did not. After that conversation he realised that he had to tell Mr.
Donovan, but he did not want to write or telephone; he wanted to speak to him face to
face. With hindsight, it would have probably been wise to have suspended FTR activities
until he had spoken to Mr. Donovan.


11.    On 10th May 2006 Mr Dobson went to work at 101; it was his first day at work
following Mr. Donovan‟s return. Mr. Dobson walked in, saw Mr. and Mrs. Donovan,
realised something was wrong, and asked what it was. Mr. Donovan asked him if there
was anything he, Mr. Dobson, wanted to tell them, and when Mr. Dobson again asked



                                            218
what was wrong, Mr. Donovan repeated his question. Mr. Dobson again asked what was
wrong, and Mr. Donovan said that he was sacking him for gross misconduct “because you
have set up an internet business without telling us”. Mr. Donovan said he could not be
trusted in view of this gross misconduct, and Mr. Dobson had to surrender his keys and
leave immediately.


12.    Mr. Dobson, was asked in cross examination about his time sheets and records
showing the use of his computer. There were conflicts between the two, the time sheets
suggested that Mr. Dobson was not working full days for 101, and the computer records
suggested that Mr. Dobson was spending much time on the internet not on 101‟s business.


       Given that Mr. Dobson was not required to complete time sheets, we accept that
they were a record for his own use, to calculate overtime, and that they did not accurately
show the whole time he spent working for 101.


       The dispute over the true meaning of the computer records left us in some
difficulty, for we seemed to have two experts telling us different things. We do not accept
that they show that Mr. Dobson spent much time on the internet on non 101 business.


13.    Generally, Mr. Dobson denied that he spent much time away from the 101
premises during Mr. Donovan‟s absence (and by this we mean not on 101 business), and
denied that he failed to apply himself properly to 101 whilst Mr Donovan was away. He
did tend to leave the premises during his lunch breaks, which previously he had not
done, to attend to FTR‟s business, and he did sometimes leave early, as other staff did
because business was slack, but he did not neglect the complainant‟s business and prefer
his own new business. Sometimes he was absent on business for 101.


101‟s case


14.    We questioned Mr. Donovan closely about the real nature of his case – was it that
Mr. Dobson should not have had any business of his own, even one which only occupied
the time of him and his wife in the evening and which had no impact on 101, was it that
FTR competed with 101, or was it a combination of factors. We understood that was the
combination of



                                            219
       a.        starting a business just when Mr. Donovan was out of the way,
       b.        not telling Mr. Donovan , despite being advised to do so by Mrs.
Virks to tell him, and despite being asked, on 10th May, if he had anything to tell Mr.
Donovan, and
c.     neglecting his duty to 101 when entrusted by Mr. Donovan with his company
whilst he was away for two months.


15.    Mr. Donovan‟s version of what happened on 10th May 2006 was similar to Mr.
Dobson‟s. Mr. Donovan said that, prior to dismissing Mr. Dobson he had been told by
two members of staff that Mr. Dobson had frequently been away from work – he arrived
late, took long lunch breaks, and left early. He had also spoken to Mrs. Virks, and had
received at least one communication from another employee, Mr. Mildenhall, drawing
attention to Mr. Dobson‟s poor attendance at work. Mr. Donovan told us that the purpose
of his two month leave was to visit his ill mother in law in Australia. Whilst he was away
he was in contact with his business, by email, and could be contacted by telephone, so
there was no reason why Mr. Dobson could not contact him.


16.    The evidence of Mrs. Virks was important. She was 101‟s accountant or book-
keeper, and also advised 101 on human resources matters. She said that, when Mr.
Dobson asked to see her, she rang Mr. Donovan to tell him that a member of his staff was
coming to see her. When Mr. Dobson told her of his business, FTR, she was shocked and
told him “Get on a plane and go and beg for forgiveness and see if you can salvage
anything from this”. Although Mr. Dobson did not seem to see the seriousness of the
situation, she thought that she had impressed upon him that he had to see Mr. Donovan
without delay.


       She went to see Mr. Donovan on his first day back at work; she told him what Mr.
Dobson had told her, and realised that Mr. Dobson had not taken her advice to inform
Mr. Donovan. Mr. Donovan‟s response was a combination of disbelief at the betrayal,
and a recognition that it was an explanation of what he had been told about Mr. Dobson‟s
performance over the previous two months




                                             220
17.      Mr. Christopher Casey is systems manager at 101, and he shared an office with Mr.
Dobson. He said that Mr. Dobson was away from the office for abnormal amounts of
time.


18.      Mr. Nick Mildenhall is the business development manager at 101. He said that
Mr. Dobson, during the relevant two months, was not about as much as before, was out of
the building at times, and he heard from other members of staff that Mr. Dobson was not
about.


         On one occasion, on 21st April 2006, he was so annoyed that he could not leave
early, as planned, because Mr. Dobson was out of the office and therefore he had to stay
and lock up, that he sent an email to Mr. Donovan. Subsequently he again contacted Mr.
Donovan about Mr. Dobson‟s absences, because he was quite concerned and thought that
Mr. Donovan should be made aware of what was happening. He said “I felt that I had to
tell Paul in the interests of the business”.


         Further, Mr. Mildenhall said that employees would come to see him or Mr.
Donovan because Mr Dobson was not there to deal with their queries.


         In April, he asked Mr. Dobson if everything was alright, as he had not been
around and he though he may have a personal problem.


         Finally, Mr. Mildenhall said that the usual management meetings, which normally
were organised by Mr. Dobson, ceased in March and April 2006.


19.      Mr. Alan Duncan was the warehouse manager for 101. He painted a similar
picture, saying that after Mr. Donovan left, Mr. Dobson was quite often not present, he
would go to Mr. Dobson‟s office and he was not there, Mr. Dobson left before him on
occasion, which did not happen previously.


         Mr. Duncan said that others in the warehouse made comments like “does Darren
still work here?” Mr. Dobson was not in the warehouse as often as before, and when he
was seen on site, employees would make comments such as “Oh, Darren still works
here”.



                                               221
       Finally, he said that there were not the regular management meetings which there
previously has been.


       In cross examination by Mr. Dobson, Mr. Duncan said “in those few months you
seemed to be a bit .... somewhere else”.


20.    Mr. James Gray also worked in the warehouse. He gave evidence which was
similar to Mr. Duncan‟s, stating “it did seem to be an excessive amount of time that he
[Mr. Dobson] was away”.


Conclusions


21.    101 has to satisfy us as to the reason or reasons for the dismissal. We accept
that the reasons were an amalgamation of those given in para 14 above. In effect, Mr
Donovan relied upon Mr Dobson‟s failure to perform his duties and the dishonesty of Mr
Dobson in not informing him of his own business which was taking up his time.


22.    The first of the two very difficult questions which we have to answer is whether
those reasons justified the instant dismissal of Mr. Dobson on the ground of gross
misconduct. Our decision is that a reasonable employer could have concluded that this
was a case of gross misconduct.


       Mr. Dobson was directly below Mr. Donovan in the hierarchy of 101.               Mr.
Donovan entrusted his company to Mr. Dobson for two months, and was entitled to
assume that Mr. Dobson would, at the least, devote as much attention to 101 as previously.
On the evidence of 101‟s employees, we are satisfied that Mr. Dobson grossly neglected
his duties, to the point where employees lower down the ladder were joking about his
absences, and one of them felt that he had to inform Mr. Donovan. For this purpose, it
does not greatly matter how Mr Dobson was spending his time when he should have
been working for 101, but we believe that a significant amount of that time was devoted
to the business of FTR.


       We are struck by Mrs. Virks‟ evidence. Clearly Mr. Dobson trusted her. She gave
forceful advice to Mr. Dobson to contact Mr. Donovan immediately, and tell him about



                                            222
his business. Mr. Dobson ignored this advice. He told us that he wanted to wait to deal
face to face with Mr. Donovan, but we do not accept this, for Mr. Dobson took as holiday
the first day on which Mr. Donovan was back at work after two months away. We think
Mr. Dobson knew that he had done wrong, and could not face Mr. Donovan. We also
think it surprising that, when Mr. Donovan asked him, on 10th May, if he, Mr. Dobson,
had anything to tell him, he did not immediately know what Mr. Donovan was referring
to, and tell him. Therefore, in the circumstances, we find that Mr. Dobson‟s neglect of his
duties to 101 was so gross as to justify his dismissal, without notice, for gross misconduct.


23     We need to say something about Mr Donovan‟s claim that he could not trust Mr
Dobson, so could not continue to employ him. He gave two grounds. First, Mr Donovan
suggested that it was no coincidence that FTR started to operate just when he, Mr
Donovan was out of the way. On balance, we agree. We think that Mr Dobson thought
that, whilst his director was away for a couple of months, he could take the opportunity to
start to operate his business.


       Second, Mr Dobson‟s failure to take Mrs Virks‟ advice to immediately contact Mr
Donovan, and his failure to be at work on Mr Donovan‟s first day back at work and take
that opportunity to tell him what he had been doing, and his failure to tell Mr Donovan
when asked if he had anything to tell him, suggest to us that Mr Dobson well knew that
he had done wrong, and was unwilling to come clean to his director.


       In our view, Mr Donovan was justified in concluding that his most senior
employee was not treating him honestly, and was justified in losing trust in him.


24.    The second difficult question is whether, despite our finding of gross misconduct,
the process leading up to Mr. Dobson‟s dismissal was fair. In reality, there was virtually
no process, and we are concerned that Mr. Dobson was given little opportunity to answer
the accusations made against him by Mr. Donovan. It is not generally acceptable for an
employer to say to the employee, as in this case, „have you anything to say to me‟; the
employee must be told what is alleged, and be given the opportunity to explain.


Here, however, we think that what the employer did was just within what could be called
fair. Firstly Mr Donovan did conduct an investigation on the 8th May 2006, whilst on site,



                                             223
and was able to form a considered view as to the seriousness of the issue. Secondly Mr.
Dobson was in a senior position and it was reasonable to assume that he would
understand what was intended by Mr. Donovan‟s question when he returned to work on
the 10th May.   Finally, and most important, we are satisfied that Mr. Dobson knew
perfectly well that he was being invited to explain his conduct over the previous two
months, which means that he did have the opportunity to explain to Mr Donovan. He did
not take that opportunity, just as he did not take the opportunity when advised by Mrs.
Virks to contact Mr. Donovan, and just as he did not take the opportunity by being at
work on the day when Mr. Donovan first returned to work. In the circumstances of this
case, the action taken by Mr. Donovan on 10th May was within the bounds of fairness.


25.    We therefore find that Mr. Dobson‟s dismissal was not unfair.




                                          224
                              Jersey Employment Tribunal


Case Number:                  2006096/06


Applicant:                    Samantha Jane Wright


Respondent:                   Tiptoe Limited t/a The Original Wine Bar




Case Summary:                 Dismissal without payment of contractual notice: Default
award


Hearing on                    16th October 2006
Before:                       Mrs Nicola Santos-Costa, Deputy Chairman
                              Kelly Flageul – Panel Member
                              Paddy Kirwan – Panel Member


Representation:
For Applicant:        Miss Wright represented herself


For Respondent:       The Respondent did not attend the Hearing


The Facts


Miss Wright was employed as the Head Chef of The Original Wine Bar on 13th March
2006. On the 26th May 2006 she was informed by the General Manager that the owners
were shutting the kitchen in the wine bar immediately as it was not very busy and that
Miss Wright was to finish with immediate effect.


Miss Wright complained to the Tribunal that she did not receive the notice due to her
under her contract of employment (4 weeks), or the holiday pay due to her or a payment
in respect of one extra day she worked as overtime.




                                           225
The Tribunal were informed by a letter dated 18th September 2006 from Richard Ward, a
director of Tiptoe Limited, that the Company had ceased trading in July 2006 and
although it had not been declared „en desastre‟, it had not assets to meet any Award that
Miss Wright might receive.


The Tribunal were informed by email dated 13th October 2006 that the Respondent would
not attend or be represented at the hearing.


DECISION


Notice Period Due


The contract of employment entered in by Miss Wright and the Respondent on 14th March
2006 („the Contract‟) states that Miss Wright is entitled to receive 1 months notice. The
Tribunal will treat this period as being 4 weeks. Article 56 of the Employment (Jersey)
Law 2003 („the Law‟) specifies that an employee who has been continuously employed for
26 weeks or less, as in Miss Wright‟s case, is entitled to 1 week‟s notice. However, article
56(7) states that where a relevant agreement specifies a longer period (here, the contract
states 4 weeks notice), such longer period shall prevail.


The Tribunal finds that Miss Wright is owed 4 weeks notice by the Respondent.


Holiday Pay


The Contract specifies that where an employee has been continuously employed for 6
months or more they shall be entitled to 20 day‟s holiday per year. Miss Wright was
employed for 10 weeks. The Contract is silent in relation to the situation of employees
who have been continuously employed for periods of less than 6 months. Article 11 (1) of
the Law states that an employee is entitled to a minimum period of 2 weeks leave in each
year.


As Miss Wright had ben employed for 10 weeks her holiday entitlement accrued during
that time is 1.36 days. Article 11(4) of the Law says that where the period of leave of an
employee includes a proportion of a week, such fraction of a day shall be treated as a



                                               226
whole day provided that such employee has been in employment for a period of 28 days
or longer.


The Tribunal finds that Miss Wright‟s holiday entitlement is increased from 1.36 days to 2
days.


However, Miss Wright gave evidence that she could not remember if she had been paid
those 2 days holiday or not with her final wages as she did not receive a final wage slip. It
is noted that the respondent in Form JET 2 states that it did pay her the holiday she was
due although the amount is not specified.


Miss Wright recalls receiving more than her usual wage in her final payment.


The Tribunal finds that on the balance of probabilities Miss Wright did receive all or
some of her outstanding holiday pay and no award is made in this respect.


Overtime Due


Miss Wright indicated to the Tribunal that she did not wish to pursue her claim for
overtime due but unpaid to her.


Conclusion


The Respondent did not attend the hearing and the Tribunal in accordance with its
powers under Regulation 10of the Jersey Employment Tribunal Regulations hereby
makes the following Default Award THAT, on the basis of the evidence heard including
the fact that Miss Wright earned £340 gross per week, the Respondent pay to Miss Wright
the sum of 4 weeks pay being the notice due to her under her contract:


£340.00 x 4 weeks = £1,360.00


Note: Please will the directors of the Respondent return Miss Wright‟s Social Security
card to her as soon as possible.




                                             227
                               Jersey Employment Tribunal


Case Number:          0307106/06


Applicant:            Mr Roy Booty
Respondent:           Alexander Burnett Plumbing & Heating Ltd


Case Summary:         Claim for holiday pay due; treatment of Bank, public and
customary holidays; employee‟s implied duty to follow lawful and reasonable orders of
employer.


Hearing on            19 October 2006
Before:               Mrs Nicola Santos-Costa, Deputy Chairman
                      Mrs Kelly Flageul and Mr Tim Langlois, Panel Members


Representation:
For Applicant:        Mr Booty represented himself
For Respondent:       Mr Edward Gibb, Director.


The Facts


1. Mr Booty was employed as a plumber by the Respondent for the period from 25th July
2005 to 14th June 2006. The relationship ended amicably on Mr Booty‟s resignation with
two weeks notice to the Respondent. However Mr Booty considered that he had not
received his full entitlement of the holiday pay that he was due to the date of his
resignation. Mr Booty and Mr Gibb were unable to agree on the amount of holiday pay
outstanding and Mr Booty has asked the Tribunal to adjudicate upon this point. Mr Gibb
stated to the Tribunal in evidence that despite numerous requests by him, Mr Booty had
not contacted him to go through various outstanding points and queries arising from Mr
Booty‟s work sheets which were preventing Mr Gibb from charging for work done by Mr
Booty on behalf of the respondent. This was not stated as a criticism of Mr Booty but by
way of explanation of the tardiness Mr Gibb may have shown in dealing with Mr Booty‟s
request for holiday pay due.




                                          228
2. Mr Booty‟s contract of employment with the respondent („the contract‟) states that Mr
Booty was entitled to 80 hours holiday in any calendar year. Evidence was heard by the
Tribunal from each of the parties that Mr Booty worked 41 hours week, at a rate of £13 per
hour. It was agreed by the parties that Mr Booty was meant to have two weeks holiday
maximum a year in accordance with article 11 of the Employment (Jersey) Law 2003 („the
Law‟). Accordingly, it was agreed by the parties that Mr Booty should have 82 hours
holiday in any calendar year (and not 80 hours as stated in the contract).


3. Evidence was heard by the Tribunal that Mr Booty had taken 2 days leave during 2006
and that it had been agreed between Mr Booty and Mr Gibb that Mr Booty would not take
these days out of his holiday entitlement but would instead not be paid for the next 2
Bank holidays which came along.


DECISION
4. The Tribunal have calculated Mr Booty‟s holiday entitlement for the period he worked
in 2006 as set out in paragraphs below. Particular reference must be made to the treatment
of Bank Holidays which is set out in paragraph 6 below.


5. As stated above, Mr Booty‟s holiday entitlement is 82 hours over the period of a
calendar year which is meant to equate to 2 weeks holiday. Mr Booty worked a 5 day
week, so for him, this meant he was entitled to 10 working days off a year.


In the period of Mr Booty‟s employment during 2006, 1st January to 14th June, there are 118
working days.


There are 260 working days in each year.
The calculation is:-
10 days leave per annum               x 118 days       =              4.5*
260 working days per annum       worked                       days


* rounded up to 5 days in accordance with article 11(4) of the Law


Mr Booty worked 41 hours a week, which is:-
8.2 hours a day x 5 days = 41 hours holiday.



                                               229
Mr Booty had received 12 hours holiday pay in his final pay packet.


Therefore that 12 hours must be deducted from the 41 hours due to him:
41hours – 12 hours = 29 hours due
Mr Booty was paid at a rate of £13 per hour
29 hours x £13 per hour = £377.00


6. The treatment of Bank Holidays must be looked at very carefully. It appears that Mr
Gibb misunderstood advice given to him on this matter and this lead to confusion on his
part.


Bank Holidays, public holidays and customary holidays (see below) are in addition to the
annual leave given to employees (see Article 11 of the Law).


If an employee is required to work on a Bank, public or customary holiday he must be
paid for the day‟s work he‟s undertaken on such date and also be given a paid day off in
substitution for such holiday worked.


The Bank, public or customary holidays celebrated in Jersey are as follows.
               1. New Year‟ s Day
               2. Good Friday
               3. Easter Monday
               4. May Bank Holiday (first Monday in May)
               5. Liberation Day (where it falls on a working day)
               6. Spring Bank Holiday (last Monday in May)
               7. August Bank Holiday (last Monday in August)
               8. Christmas Day                     or any day given in substitution for them
               9. Boxing Day             }          where either of them fall on a week end.


The treatment of bank holidays for shift workers is discussed in Renehan v G4S Security
Services (Jersey) Limited (2005).


7. Mr Gibb was under the impression that the Bank, public and customary holidays listed
above must be calculated into an employee‟s annual leave entitlement. This is incorrect:



                                              230
these day‟s holidays are entirely separate and in addition to days forming part of an
employee‟s annual leave. For this reason the Tribunal ignored the two days leave Mr
Booty had taken during the year and which he substituted by not receiving payment for
two bank holidays. Mr Booty was entitled to be paid for his Bank holiday leave and by
not deducting these 2 days from the annual leave Mr Booty accrued during 2006, as
described in paragraph 5 above, the Tribunal effectively reimbursed these days to Mr
Booty.


8. Mr Gibb was correct in drawing the Tribunal‟s attention to Mr Booty‟s failure to assist
him in clarifying certain legitimate queries Mr Gibb has about work undertaken by Mr
Booty during the period of his employment with the Respondent. This failure by Mr
Booty to communicate with Mr Gibb has resulted in the Respondent being hindered or
unable to charge for work done by Mr Booty, which is clearly unsatisfactory. The
Tribunal is unable to penalise Mr Booty for this failure but would use this opportunity to
confirm that employees have an implied duty to comply with the lawful and reasonable
instructions of their employers and on the basis of the evidence heard to date on this
matter, it would appear that Mr Booty has failed to comply with this duty and Mr Gibb
would certainly have been entitled to treat this breach as a disciplinary offence whilst Mr
Booty was still employed.


9. Conclusion
Mr Booty is hereby awarded the sum of £377.00 by way of outstanding holiday pay.




                                            231
                                  Jersey Employment Tribunal
                                      INTERIM HEARING


Case Number:                      1408125 / 06
Applicant:                        Lee Jones
Respondent:                       Royal Bank of Scotland International Limited
Hearing on                        4 December 2006
Before:                           Mr David le Quesne, Chairman


1         I sat alone on 4th December to determine this preliminary issue. Having had the
benefit of submissions from Miss Peacock for the respondent and Mr Michel for the
complainant, and having heard sworn evidence from Mr Jones, I adjourned my decision,
which follows.


2         Mr Jones was employed by the bank from January 2005 until his dismissal on 15th
May 2006. Mr Jones did not submit his complaint to the Tribunal until 14th August 2006. It
was agreed between the parties that the complaint was submitted beyond the 8 week time
limit imposed by article 76(2)(a).


3         Article 76(2) of the Law provides as follows:
          Subject to paragraph (3), the Tribunal shall not consider a complaint under this
          Article unless it is presented to the Tribunal-
          (a)     before the end of the period of 8 weeks beginning with the effective date of
          termination; or
          (b)     within such further period as the Tribunal considers reasonable in a case
          where it is satisfied that it was not reasonably practicable for the complaint to be
          presented before the end of that period of 8 weeks.
The issue for me to determine is whether the complaint should be allowed under article
76(2)(b).


4         Mr Jones‟ evidence was
(i) that he did not know of the Employment Law or the Tribunal until the week beginning
7th August, when Mr Bob Stokes of the GMB union in England, who was advising Mr
Jones, told him that he should think about making an application to the Employment



                                                 232
Tribunal, for which the time limit was 3 months (this, of course, was a reference to the
time limit under the UK law). The next day Mr Jones came to the Tribunal office and
spoke to its secretary, who gave him an application form and told him that the time limit
in Jersey was 8 weeks.
(ii) he was advised by a friend who worked in the recruitment business, whom he was
consulting about finding a job, that he should contact JACS, which he promptly did on
23rd May 2006. Mr Jones said that he asked JACS what he should be considering, and was
told that it was important to follow the procedures, and that if his appeal was
unsuccessful, he should return for further advice.
(iii) he consulted lawyers, Messrs. Michel Le Cornu, about his internal appeal, but not
specifically about other rights he may have.


5       I believe this evidence, which was not seriously challenged. The difference
between the parties really concerns the meaning of the words “not reasonably
practicable” and the application of that meaning to the facts.


6       I have been referred, particularly by Miss Peacock, to various relevant English
cases, to some of which I shall refer later in this judgment. This Tribunal is not bound by
authorities from another jurisdiction, but helpful guidance is to be obtained where, as
here, the words in the foreign statute are the same as the words in our law, and it is
particularly helpful where those words have been considered by the UK court of appeal.


7       Having determined that the complaint was made beyond the 8 week period
stipulated in article 76(2)(a), there are two stages in the consideration of this matter. First, I
must apply the “reasonably practicable” test, then, if the complainant succeeds on that
point, I must consider whether the “further period”, in this case nearly 5 weeks, was
reasonable.


8       In Dedman v British Building & Engineering Appliances Limited [1974] ICR 53,
Lord Denning referred to the differing interpretation of the relevant words in Scotland
and England, with the former construing the word “practicable” in the strict literal sense,
and the latter construing it liberally in favour of the employee. Both parties have agreed
that this Tribunal should adopt, of the two, the more liberal, and I agree.




                                               233
9      It is axiomatic that ignorance of the law is no excuse. What this means in this
context is that the mere fact that the complainant did not know of the Employment Law
(„the Law‟), or the time limit which it imposes, is not enough to bring him within article
76(2)(b); such ignorance is one factor to be taken into account when considering
reasonable practicability. In brief, there has to be a good reason why the complainant did
not inform himself of the relevant law.


10     At this stage I must consider the problem of advisers, which has been much
discussed in the English cases. In the Dedman case (see above), Lord Denning said
       “Summing up, I would suggest that in every case the tribunal should inquire into the
       circumstances and ask themselves whether the man or his advisers were at fault in
       allowing the four weeks to pass by without presenting the complaint.”
       In Wall‟s Meat Co Ltd v Khan [1979] ICR 52 Brandon LJ said at page 60 “Either
state of mind will, further, not be reasonable if it arises from the fault of the complainant in
not making such enquiries as he should reasonably in all the circumstances have made, or
from the fault of his solicitors or other professional advisers in not giving him such
information as they should reasonably in all the circumstance have given him.”
Since then, it has generally been held that, certainly in the case of legal advice, and
possibly in other similar cases, wrong advice on the time limit cannot amount to sufficient
reason falling within article 76(2)(b). The apparent injustice which this may cause is said
to be overcome by the complainant‟s ability to claim against the adviser for breach of duty
in not giving correct advice. This in itself has the potential to cause difficulties, in that a
tribunal may be led into trying to determine whether or not the adviser owed a duty to the
complainant which would allow the rigour of the rule to be mitigated.


11     I do not accept this approach, because it does not seem to square with the test to be
applied, which, as Sir Thomas Bingham, MR, said in London International College v Sen
[1993] IRLR 333
“concentrates on the state of mind of the prospective complainant and the extent to which
he understood his position.” For example, if the facts were that the complainant sought
legal advice on the specific question of the time limit, and was given wrong advice, why
should that not be capable of making it impracticable for him to make his complaint in
time; what more should be required of the prospective complainant than that he should
go to a lawyer to find out what are his rights?



                                              234
        This question becomes more difficult to answer when one sees cases which
distinguish between the capacity of the person or body giving advice. Would wrong
advice from the office of the Tribunal itself make it not reasonably practical for the
complaint to have been made on time, and what about such advice from the Citizens
Advice Bureau, or a union official, or the personnel officer of the former employer?


12      This approach does not appear to me to be logical and is liable to lead to
difficulties of the sort I have described. I am attracted by the reasoning of Sir Thomas
Bingham MR in that case, as follows:
        “I would for my part accept that those authorities, and in particular the passages
referred to, do lend support to the proposition for which Mr Pitt-Payne contended. When a
prospective complainant consults a solicitor or a trade union official or similar adviser, the
authorities do suggest that he can no longer say that it was not reasonably practicable for
him to comply with the time limit even if the adviser advised wrongly.
I must, however, say that, for my part, I find the rationale of that principle very hard to
understand. If the test is whether it was reasonably practicable or practically possible or
reasonably feasible to present the complaint in time, it would seem to me irrelevant whether
or not the complainant had consulted a solicitor. That would seem to me to be a possible
approach to the language of the section but it is one which previous authority has firmly
rejected and such authority has concentrated on the state of mind of the prospective
complainant and the extent to which he understood his position. If, however, it is his state
of mind and his understanding of his position which matters, it seems strange to me that the
complainant who is misled by incorrect advice into misapprehending his rights is unable to
rely on the escape clause…. If the rationale is that he cannot rely on the escape clause
because in such circumstances it is his adviser and not the employer who should compensate
him, then there would appear, as the authorities suggest, to be a distinction between a
solicitor who is prima facie liable for misleading advice and other sources of advice which
are not, or may not be, liable for giving incorrect advice.
I do not for my part find it easy to apply these principles because, as I have indicated, I do
not find it easy to understand them. I question, however, whether the earlier cases were
really purporting to lay down a rule of law to govern what is essentially a question of fact,
and I am not persuaded that the prospective complainant loses for all time his rights to rely
on the escape clause…..absolutely once he consults a solicitor potentially liable for wrong




                                               235
advice if, as in the present case, he distrusts that advice and immediately proceeds to obtain
further advice from a body such as an Industrial Tribunal which may not be so liable.”


13      I therefore hold the view that the answers to the questions of whether the
complainant has taken advice, and from whom it was taken, are not determinative of the
issue; they are factors to be taken into account when considering if it was reasonably
practicable for the complaint to have been made within the time limit.


14      I accept that Mr Jones did not know of the Law or the time limit, until after the
time limit had expired. As I have said, that alone does not render it not reasonably
practicable for him to have made his complaint within the 8 weeks. Mr Michel, for Mr
Jones, relied upon the following matters as making a timely complaint not reasonably
practicable (in no order of priority).


15      First, Mr Jones consulted JACS and was told to follow the bank‟s complaints
procedures; he was not warned that he should pay attention to the Employment Law. I
regard this as an important point, because it was reasonable for Mr Jones to regard JACS
as having expertise, at least to some extent, in the area of employee rights, and this
implies some knowledge of the Employment Law.


16      Second, Mr Jones consulted Mr Bob Stokes of the GMB union in England about
his position, and he was not advised about his rights under the Law. I do not regard this
as significant because Mr Jones‟ evidence was that this consultation was not until 10th
July, and he was consulting somebody who was unfamiliar with the Jersey Law, and who
advised on the UK law.


17      Third, Mr Jones‟ daughter was diagnosed on 30th June with a serious kidney
complaint. I was not told much about this, and certainly not enough for me to be able to
regard it as significant to the decision I have to make.


18      Fourth, Mr Jones gave notice of appeal on 23rd May 2006, he provided detailed
grounds of his appeal, on which Le Cornu Michel assisted him, on 5th June, and the date
of the appeal hearing was 10th June 2006. The decision on the appeal was given on or
about 1st September 2006. The argument is that it was not reasonably practicable for Mr



                                             236
Jones to make his complaint to the Tribunal whilst the bank‟s internal procedures were
being followed.
       To some extent, I differ from the English authorities on the significance of this. I
agree that pursuance of internal procedures should not be an absolute bar to time running
against the complainant under the Law, but the existence and pursuance of internal
remedies before turning to statutory remedies appears to me to be a significant factor for
me to take into account.
       My first reason is that it can be impracticable, when following grievance or appeal
procedures stipulated by the employer, for the employee to ratchet up the tension by
making a parallel application to the Tribunal or to the court. A likely result would be to
prejudice the internal procedures, which well may be close to amicable resolution.
       Second, it can be reasonable for an employee to think either that the internal
procedures are the only remedy available, or that he is obliged to pursue that remedy
before trying other avenues.
       Third, as a matter of public policy parties are to be encouraged to exhaust internal
or non statutory or alternative remedies before engaging the Tribunal or the courts.


19     There is a fifth matter referred to by Mr Michel. He told me that Mr Jones engaged
the services of Le Cornu Michel before the 8 week time limit had expired, and that his
firm was only instructed in relation to advice on the internal appeal, and therefore there
was no obligation on his firm to advise on the Law, and no expectation by Mr Jones that
he would receive advice other than on the internal appeal. I was uncomfortable with the
way this issue was handled, for Mr Michel seemed to have a conflict of interest, and was
making submissions on behalf of his own firm.
On the one hand it was arguably in the interests of Mr Michel‟s client, Mr Jones, to
establish that it would have been appropriate for Le Cornu Michel to advise on Mr Jones‟
rights under the Law. The argument would be that Mr Jones was ignorant of the law, so
clearly could not instruct Le Cornu Michel to advise him on it, and the context in which
Mr Jones sought advice cast a duty on Mr Michel‟s firm to consider the Law.
On the other hand, it was not in Mr Michel‟s interest to run an argument on behalf of his
client which might expose his firm to the risk of a claim that it failed in a duty to advise
Mr Jones about his rights under the Law.
In view of what I say in paragraph 13 above, I simply find that Mr Jones did seek legal
advice, that the advice he was given did not include advice about the Law and the time



                                            237
limit, and that this is a relevant factor for me to take into account, to the extent that it
would have been reasonable for him to have thought that, if he had some other legal right
in relation to his dismissal, his lawyer would have so informed him.


20     What was the state of mind of the appellant? In my opinion, it went beyond mere
ignorance of the Law and the time limit, which alone could not suffice to make the escape
clause available. I find that Mr Jones did take steps to go beyond mere ignorance, by
consulting both JACS and a firm of lawyers. They did not alert him to the Law, as he
reasonably could have expected. He was following the internal procedures required by
his employer, and JACS told him that this is what he should do. Although it is not quite
the right way to put the test, I find it helpful to ask myself what other reasonably
practicable steps Mr Jones could or should have taken, and I cannot provide an answer.


21     I therefore hold that it was not reasonably practicable for Mr Jones to present his
complaint within 8 weeks after the date of his dismissal.


22     Now, I have to decide the second stage, as I described earlier in this judgment: was
the “further period” between the expiration of the 8 week period and 14th August 2006
reasonable?


23     What drove Mr Jones to make his complaint to the Tribunal was the advice of the
GMB union official. Having been given that advice, Mr Jones acted promptly in
submitting his complaint to the Tribunal. It would not have been reasonable for Mr Jones
to delay after the GMB official alerted him, but should he have acted before then? I
conclude that the delay was reasonable.
       I wish to make it clear that this is not to say that any delay until a new event
occurs will be reasonable; that could not be the case, for it would allow infinite delays.
Each case must be decided on its merits.


24      Finally, I express the view that the law needs to be reviewed. If the point which I
  make about public policy in paragraph 18 is valid, it may be wise for the legislature to
consider amending the Law, perhaps along the lines of the amendment to the English law,
which specifically permits a longer period in order to allow the parties to use the internal
                                           remedies.



                                              238
                                Jersey Employment Tribunal
Case Number:                    3108130/06


Applicant:                      Mr J E D Ramirez
Respondent:                     Beau Rivage Hotel


Case Summary:                   Unfair dismissal and breach of contractual terms


Hearing on                      5th December 2006
Before:                         Mr David le Quesne, Chairman
                                Mr S Mourant and Mr P Kirwan – Panel Members.


Representation:
For Applicant:          None
For Respondent:         Mr R Weston, Director, Beau Rivage Hotel


1         Mr Ramirez did not appear and was not represented, but we had documents from
him which explained his claim.
          Mr Weston, as a director, represented the Beau Rivage Hotel; he called as witness
the manageress, Miss Christine Keep, and his wife and co-director, Mrs Weston.


2         Mr Ramirez was employed by the Hotel for a fixed term, starting on 27th March
2006 and due to end on 31st October 2006. His employment was arranged by telephone and
email; he saw an advertisement for the job on a website, when he was in the Philippines,
and we are satisfied that he came to Jersey to work for the hotel on the basis of the
exchanges between him and, mainly, Miss Keep.


3         Mr Ramirez claims that he was dismissed unfairly. He began his employment on
27th March and was dismissed on 15th August, which dismissal was effective on 28th
August, which means that he was employed for 22 weeks. Article 73 of the Law precludes
the Tribunal from hearing an unfair dismissal claim unless the claimant has been
employed for not less than 26 weeks. Accordingly, we cannot hear this application for
unfair dismissal.




                                             239
4      In addition to the claim for unfair dismissal, Mr Ramirez makes contractual
claims, in effect that he was not paid sums which should have been paid to him.


5      Before dealing with the contractual claims, we have to consider the terms of the
contract, if any, between Mr Ramirez and the hotel. Mr Ramirez states that he came to
Jersey on the terms of the hotel‟s advertisement. If this is correct, the deductions which
should have been made from his wages for board and lodging should have been £52.00
per week, as stated in the advertisement. The hotel says that the contractual terms were as
agreed between Christine Keep and Mr Ramirez on the telephone, and as described in the
contract of employment which was provided to Mr Ramirez after he had started work.


6      We have heard the sworn evidence of Christine Keep, and we believe what she
told us. She told us that in a telephone conversation with Mr Ramirez before he arrived in
Jersey, she told him that there would be deducted from his wages either £52.00 per week
for lodging only, or £70.00 per week for board and lodging, at his choice, and that he chose
the latter. We therefore find that the hotel was entitled to deduct £70.00 per week, as it
did.


7      Miss Keep also told us that she handed the contract of employment and the
standard terms and conditions, a copy of which is in the hotel‟s bundle, to Mr Ramirez on
22nd April, in what was known as the Quiet Lounge, and she did the same for most other
staff, in the same place on the same day. Mr Ramirez said that he would take it away to
consider. Miss Keep said that she several times prompted Mr Ramirez to sign and return
the contract, but he never did so. As stated above, we believe Miss Keep‟s evidence.
       We find that the contractual terms were as described in the contract which was
handed to Mr Ramirez; he was given the contract and did not return with any comments
on it, and must be taken to have accepted its terms.
       In the light of that finding, we now consider the contractual claims made by Mr
Ramirez.


8      Mr Ramirez claims loss of wages for the period between the termination of his
employment and 31st October, which is when his employment was intended to terminate.
This claim could only succeed if Mr Ramirez satisfied us either that his employer had no




                                            240
right to terminate the employment before 31st October, in any circumstances, or that his
employer had the right, but in fact it was a case of unfair dismissal.
       We have dealt with the unfair dismissal point in paragraph 3 above. As for the
first point, it is not the law that a fixed term contract cannot be terminated before the end
of the fixed term; if it were, the employee could with impunity refuse to work. A fixed
term contract can be terminated prematurely, on proper grounds (in this case, the grounds
given by the hotel are unacceptable attitude and behaviour).
       We therefore dismiss this claim.


9      Next, Mr Ramirez claims that he was not paid what was due to him in respect of
overtime, and his claim rests on him being entitled to payment of more than his basic
hourly rate when working overtime. We reject this claim because the contract which
governed his employment specifically provided that overtime would be paid at the basic
hourly rate.


10     Mr Ramirez claims that he was not paid what was due in respect of annual
holidays. We have been taken carefully through Mr Ramirez‟ payslips by Mrs Weston,
who did the calculations for holiday pay, and we are satisfied that Mr Ramirez was paid
fully for the annual holidays to which he was contractually entitled, being 5.17 days at
£6.19 per hour for 7 hours per day.


11     Similarly, we have been taken through that part of the pay slips which deals with
bank holiday payments, and we are satisfied that Mr Ramirez was paid for 6 bank
holidays, which was his entitlement, so we dismiss that claim.


12     Finally, Mr Ramirez claims entitlement to a loyalty bonus and to a share of tips.
We accept the evidence of Miss Keep that there was no mention by her to Mr Ramirez of a
loyalty bonus; she said that she has in the past paid bonuses, but has never called them a
„loyalty bonus‟. Further, there is no reference in the terms of the contract to payment of a
loyalty bonus. We dismiss that claim by Mr Ramirez.
       Miss Keep said that tips are paid in two ways. Guests sometimes give money to
staff who have pleased them, and those staff keep what they are given. Guests sometimes
put money into a pot, to be distributed to all staff. She said that if Mr Ramirez did not




                                             241
receive a distribution from the pot for some months, that would have been because no
money was put into the pot in those months.
       We accordingly reject both these claims.


13     In summary, we dismiss all the claims made by Mr Ramirez.




                                           242
                               Jersey Employment Tribunal
Case Number:           3108136/06


Applicant:             Miss Charlotte Janes
Respondent:            Beauty and the East      Limited


Hearing on             14 December 2006
Before:                Mrs Nicola Santos-Costa, Deputy Chairman


Representation:
For Applicant:         Miss Janes represented herself
For Respondent:        Failed to appear.


Witnesses:             None


1         The Tribunal has heard nothing at all from the respondent. There has been no
response to the applicant‟s claim form which was sent to the Respondent, and there has
been no response to letters and emails which have been sent. The Respondent was given
notice of the hearing today on the 9th November 2006, and warned that if it did not appear,
there might be a judgment in default against it. The Respondent failed to appear at the
hearing and accordingly this judgment is made in default of such appearance.


2. The Applicant was employed by the Respondent as a beauty therapist from 10th June
2006 to 2nd September 2006. During this period the Applicant worked approximately 20
hours per week at a rate of £6.50 per hour. The Applicant submitted weekly time sheets to
the Respondent which were not disputed. The Applicant was also entitled to receive
commission on products sold and treatments provided by her in the salon. For the entire
period of her employment the Applicant was not paid her salary or commission due
despite repeated requests to the Respondent. On the 2nd September 2006 having still not
been paid the Applicant handed in her notice to the Respondent with immediate effect.


3. At the end of September the Applicant received a cheque for £1,181.05 together with
three wage slips, to cover the salary due to her for the months of June, July and August



                                              243
worked. This sum was net of social security deductions although the Applicant has been
informed by the Employment & Social Security Department that no social security
contributions have been made on her behalf to the Department.


4. The Applicant has noted that the payment for the month of July 2006 does not include
the week of 17th July – 21st July when she was required to attend a training course in the
United Kingdom. The Applicant gave evidence under oath that the Respondent had said
that she would be paid her hourly rate whilst on the training course. The course
comprised the following hours:
3 days – 9 – 5.30pm = 7.5 hours *
1 day – 9 – 5.00pm =   7.0 hours *
1 day – 8.30 – 1.00pm =        4.5 hours
                       Total   34 hours
(* after deducting 1 hour for lunch)


5. Paragraph 7.2 of the Applicant‟s contract of employment states that an employee shall
be required to repay 50% of the cost of any training courses if they leave the business
within 3 months of completing such course. The Tribunal finds that the Respondent‟s
failure to pay the Applicant‟s wages during the period of her employment repudiates the
contract of employment and accordingly this condition does not apply.


6. The Applicant was paid at a rate of £6.50 per hour. The training course took 34 hours to
complete. Accordingly the Applicant is awarded the sum of:


34 hours x £6.40 per hour = £221.00


7. The Applicant did not receive any holiday pay when she left the employment of the
Respondent. Article 11 of the Employment (Jersey) Law 2003 („the Law‟) states that
employees shall be entitled to a minimum period of 2 weeks leave per year, plus public
and bank holidays. The Applicant gave evidence that she generally worked 3 days a
week. Accordingly she was entitled to 6 days paid leave a year. The Respondent worked
for 7 weeks and 3 days; accordingly she had accrued 1 day paid leave during that time.


The Applicant is awarded the sum of 1 days leave:



                                            244
7 hours x £6.50 per hour = £45.50


8. Article 50 of the Law states that an employer shall pay the wages of an employee, „at
regular intervals of not more than one month‟. The Respondent failed to pay the
Applicant her wages for June, July or August until the end of September and after she had
left the employ of the Respondent, despite her repeated request. This is an offence in
accordance with Article 55 of the Law. By Article 55 of the Law the Tribunal is empowered
to levy a fine in respect of contraventions of Article 50, in an amount not exceeding level 4
of the Criminal Justice (Standard Scale of Fines)(Jersey) Law 1993, which is £5,000.


The Tribunal hereby fines the Respondent the sum of £250.00 for failure to comply with
Article 50 of the Law.


Schedule of Awards & Fines


Awards
1. Outstanding wages due                      :               £221.00
2. Holiday Pay due                            :               £ 45.50
                                                                              Total £266.50
Fine
3. For breach of Article 50 of the Law :                      £250.00
                                                                              Total £250.00




                                             245

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:14
posted:10/25/2011
language:English
pages:245
xiaohuicaicai xiaohuicaicai
About