judicial greffe


Jersey Employment and Discrimination Tribunal


Employment (Jersey) Law 2003

NOTIFICATION OF THE TRIBUNAL’S JUDGMENT

 

Reference:

[2017]TRE147                                                  

 

 

Applicant:

Zuned Ahmed Choudhury

Respondent:

Wild Jacks Limited

Hearing Date:

20 Jun 2017

Before:

Advocate Mike Preston, Deputy Chairman, Sitting alone

 

 

For the Applicant:

Mr Nick Le Cornu

For the Respondent:

Mr Christopher Sprent

 

 

 

 

 

 

 

THE TRIBUNAL’S JUDGMENT

1.    The Tribunal was convened for a Final Hearing to take place yesterday, 20 June 2017, in order to determine the Applicant’s claims for unpaid holiday pay and pay that was due to him in respect of certain Bank Holidays (the “Holiday Claims”). The Applicant was represented by Mr Nick Le Cornu and the Respondent by a Director and beneficial shareholder, Mr Christopher Sprent.

 

2.    The Applicant had been an employee of the Respondent. On 2 May 2016, he had resigned from his position. By a JET1 dated 17 November 2016 he claimed to have been constructively unfairly dismissed. However, that claim was rejected as having been brought out of time and no issue now arises in that regard. The Holiday Claims survived. In addition, the Applicant remains one of the beneficial owners of shares in the Respondent. The parties are essentially in partnership in the underlying business, which is a restaurant in St Helier. There are matters in dispute between the parties that relate to what might be termed “partnership issues” that do not concern the Tribunal.

 

3.    The essence of the Holiday Claims is that the Applicant says that he is entitled to unpaid holiday pay extending over a number of years. This was a claim that, amongst other claims, had been made unsuccessfully in an earlier case brought against the Respondent by a Mr Jamir Raj Uddin (Case No: 2609 123/14). I sat as the Deputy Chair in that case. Mr Uddin is also a beneficial owner of shares in the Respondent.

 

4.    The Respondent had defended Mr Uddin’s claim for holiday pay on the basis that Mr Sprent and the other beneficial shareholder, Mr Gallagher, had made significant financial contributions to the business. There had been an agreement to the effect that Mr Uddin and the Applicant would make a like financial contribution to the business by foregoing holiday pay and such sums as would otherwise be due to them would be credited to a loan account. Over time, this would off-set the financial contributions made to the business by Mr Sprent and Mr Gallagher.

 

5.    At the Tribunal hearing involving Mr Uddin, the Applicant had given sworn evidence in support of the Respondent’s position. It was now his case that he had lied in that earlier case. It was his position that he had only done this because Mr Sprent had told him to lie in those proceedings. The real position was that there had never been a loan account and that he (and by extension, it would seem Mr Uddin) was entitled to his holiday pay. For the avoidance of any doubt, Mr Sprent maintained the position that there had been an agreement in respect to the loan account and he had not told the Applicant to lie in the earlier case. In fact, the Applicant had told the truth then and was lying now.

 

The Present Application

 

6.    By Notice dated 19 May 2017, the parties were advised that I would be sitting as Deputy Chairman together with Mr Mark Thérin and Mr Michael Baudains as Panel Members at yesterday’s Final Hearing.

 

7.    By email dated 19 June 2017, Mr Le Cornu advised the Tribunal that he had not seen the Notice and so had not appreciated that I was to sit in this case. If he had seen the Notice, he would have made this application sooner.

 

8.    It was Mr Le Cornu’s position that the present case was identical to Mr Uddin’s and that as I had sat in that case I should not sit in this case. As a consequence, Mr Le Cornu indicated that he wanted to apply for me to be recused. If he was not successful, he stated that he would be seeking a stay of this matter pending an appeal to the Royal Court.

 

9.    The Tribunal advised Mr Le Cornu that I would sit alone to determine any application he wished to make at the commencement of the Final Hearing.

 

10. Accordingly, Mr Le Cornu applied for an order that I recuse myself on the basis that this case was not only similar but identical to the case involving Mr Uddin. As such, although Mr Le Cornu was at pains to say that he was not suggesting any actual bias on my part, I was bound to be “to a degree, prejudiced” by having heard the evidence in the other case. What was needed was a Chair who could listen impartially to the evidence and to the legal submissions that would be made. If I were to sit, there would be an appearance of bias and that should be avoided. There were other Chairs who could sit in my place and the Applicant was not concerned with the inevitable delay that would happen if the application was successful.

 

11. For the Respondent, Mr Sprent stated that he had no issue with whichever Chair was appointed to sit. However, he was concerned that if I refused the application and then the Tribunal was to find in favour of the Respondent, Mr Le Cornu had confirmed that there would be an appeal. Mr Sprent was keen to avoid this and so, if pushed, would prefer another Chair to sit and so take away the potential for the Applicant to further prolong this litigation. Mr Sprent accepted that there might be an appeal on other grounds in any event.

 

12. In accepting that my withdrawal would lead to a delay at least in the short term, Mr Sprent confirmed that the time afforded to the parties might enable them to discuss the partnership issues referred to above and that this might in itself be mutually beneficial. 

 

 

 

 

The Law

 

13. The law in this area is settled and guidance can be found in the decision of Vaughan JA sitting as a Single Judge of Appeal in In the Matter of the Esteem Settlement and the No.52 Trust [2001] JLR 169. The judge under scrutiny, as part of his duties as a judge, should sit to determine the issue of his own récusation as he was in the best position to determine whether the objection to him sitting were valid or not.

 

14. The test to be applied in respect to such applications was whether all the material circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger that the judge was biased. This was a wholly objective test and the subjective opinion of the party alleging bias would not be taken into account.

 

DECISION

 

15. I have carefully considered the submissions made by Mr Le Cornu but I do not consider that a fair-minded and informed observer would conclude that there was any real possibility or danger that I would be biased, indeed I consider that there are strong arguments in favour of my sitting precisely because I was involved in the earlier case of Mr Uddin. I do not see that there is any force in the points made by Mr Le Cornu and I dismiss his application.

 

16. Having reached that decision, I am concerned at the practical effects that might arise and the impact of any appeal that might follow, with the inevitable delay and expense that will be caused. In saying this I am not suggesting that the threat of an appeal would of itself cause me to withdraw. In fact, I am of the view that any such appeal would be doomed to fail. If it were not for the position adopted by Mr Sprent, I would proceed to deal with this case, indeed I consider that I would have a duty to do so. The decision I have reached below should not be considered as any form of encouragement for “judge shopping”.

 

17. It is incumbent upon me to bear in mind the overriding objective as set out in Article 2 of the Employment and Discrimination Tribunal (Procedure) Order 2016. I must keep in mind the need to seek flexibility in proceedings and where possible to avoid delay and expense. I am also aware of the benefits that might arise to both parties from these proceedings being delayed for a period of time as identified by Mr Sprent at paragraph 12 above.

 

18. Therefore, for reasons of practicality, I have decided that I will withdraw from this case and will ask the Registrar to fix another date for a Final Hearing before a different Chair. I also take this opportunity to direct that before any such Final Hearing the parties will liaise in order to ensure that a Joint Bundle is produced, avoiding the duplication of documents wherever possible.

 

 

 

 

 

Signed:  Advocate Mike Preston, Deputy Chairman Dated: 21 June 2017

 

 

 

Judgment and Reasons sent to the parties on

                   21 June 2017

For the Tribunal Office

 


Page Last Updated: 10 Jul 2017