IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

IN THE MATTER:

BETWEEN

ARTUR SUMERA

CLAIMANT

 

AND

 

 

ATLANTIQUE SEAFOOD T/A SOY SUSHI RESTAURANT

RESPONDENT


LEAVE TO APPEAL DECISION


Reference:                          [2018] TRE 121

Before:                         Advocate I Jones, Deputy Chairman                              

 

THE DECISION

The Appellant’s application for permission to appeal pursuant to Article 94 of the Employment (Jersey) Law 2003 is refused.

 

INTRODUCTION

 

1.       By way of a notice of appeal dated 3rd April 2019, the Appellant sought to appeal the judgment of the Chairman dated 7th March 2019 (the "Decision") pursuant to Article 94 of the Employment (Jersey) Law 2003 (the "Law").

 

2.       As the application for leave was made within the 28 day time period mandated by Article 94 of the Law the application for leave to appeal has been made in time.

 

3.       Article 94(1) of the Law states as follows:

 

"A person aggrieved by a decision or order of the Tribunal may, on a question of law only, appeal to the Royal Court by applying to the Tribunal for leave to appeal." [EMPHASIS ADDED]

4.       Accordingly the Appellant will not be granted leave to appeal unless the ground of appeal raises a 'question of law'. The Tribunal has previously considered the nature of a 'question of law' generally and in the context of Article 94(1) of the Law, most recently in Parker -v- Ecoheat [22nd May 2017], which characterises a 'question of law' as follows:

 

a)     the Tribunal has misdirected itself in law or misunderstood the law or misapplied the law;             and / or

b)    there was no evidence to support a particular conclusion or finding of fact; and / or

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

 

I can see no reason not to adopt the above definition or otherwise qualify / modify it and consider each ground against the above criteria.

 

THE FIRST GROUND

 

5.       The first ground of appeal states as follows:

 

“it is submitted that the Tribunal erred in law by acting in a way that no reasonable Tribunal could reasonably have reached the same decision, that is to say, it acted perversely.”

 

This first ground is seemingly based on two alternative contentions: (i) that the Tribunal was perverse in that it refused to imply a term, as requested by the Appellant, into his contract of Employment; and / or (ii) that the Tribunal was perverse in that it misinterpreted Article 5 of the Appellant's terms of Employment.

 

6.       By reference to the factual findings of the Tribunal, as set out in the decision, the background for these contentions is as follows:

 

a)    the Appellant had a contract of employment which stated that he was not entitled to be paid for any overtime that he worked;

b)    the overtime clause in the contract of employment explicitly stated that the Appellant        would only be entitled to take time off in lieu in respect of overtime worked; and

c)     the Appellant resigned to take up employment elsewhere.

7.       One of the allegations being considered by the Tribunal was that the Appellant had resigned having accrued overtime but not having been given the requisite time off in lieu. The claim was to the effect that as the Appellant had not taken the time off in lieu he was entitled to be paid for the time off in lieu that he had accrued. That claim depended on the Tribunal being persuaded to imply the necessary terms into the employment contract, as on its face the Appellant was not entitled to be paid for overtime, in any circumstances.

 

8.       The Appellant refers to the decision of the Royal Court in Grove -v- Briscoe -v- Baker [2005] JLR348 which is the leading authority in Jersey law on implied terms and which confirms the position that 'a term may be implied if it is a term that would customarily be implied in a contract of a particular kind or if the inclusion of such term is necessary because otherwise the contract would be futile, inefficacious or absurd'.

 

9.       There is no dispute that the decision in Grove represents the position in Jersey law as to implied terms and when a Court should imply a term. However, it is argued by the Appellant that the Decision 'demonstratively cuts across' the rationale set out in Grove. With respect to the Appellant's arguments I do not agree. The hurdle that the Appellant is required to clear, in order to succeed on an argument that a term should be implied is that such implication is 'necessary' as otherwise the contract is 'futile, inefficacious or absurd'.

 

10.   From the Decision and the consequent application for leave to appeal, I cannot see that either of the parties made reference to Grove at the first instance hearing. While it may be said that the Chairman did not refer herself to Grove either I cannot help but note in this regard that the Appellant has surely failed to assist the Tribunal properly, (or at least as well as it could have) by not making submissions about Grove and / or by drawing the authority to the attention of the Chairman.

 

11.   It seems to me axiomatic that if one seeks to rely on an authority then it behooves one to present such authority to the Tribunal and make submissions in relation to it. I note in this regard that parties are habitually required to produce, in advance, copies of all authorities relied upon. To make submissions about authorities not before a Tribunal, but after a decision has been made reflects poorly on the litigant. While some latitude (considerable in some cases) may be given to a litigant in person, that latitude is not available to a party who is represented by a law firm and who is doubtless being charged significant sums for professional representation.

 

12.    Irrespective of those observations, in my view what the Decision demonstrates is that the Chairman considered whether or not she was able to imply a term into the contract that the employee was entitled to be paid for hours accrued that the Claimant had not taken off in lieu. The Chairman concluded that she could not imply a term, as requested, because it was not right to imply a term simply to make a contract 'fair'. The Chairman helpfully referred to the case of Vision Events (UK) Limited -v- Paterson [UKEAT/0015/13] which considered the same point as the one before the Tribunal in this case. The Chairman was entitled to refer to and if she thought fit apply the reasoning in Vision to the instant case.

 

13.   The ruling of the Chairman (at paragraphs 37 and 38) was as follows:

 

"In this case the Overtime Clause expressly stated that the Claimant was not entitled to receive payment for overtime worked. The Overtime Clause expressly provided that the Claimant would only be entitled to take TOIL for any overtime worked. Nowhere does the Contract specify that upon termination (when TOIL can no longer be taken) the Respondent should pay the Claimant for accrued but untaken TOIL. In accordance with Vision Events, the Tribunal may not imply into the Contract a term which directly contradicts the Overtime Clause. Unfortunately for the Claimant, the Overtime Clause meant that with regards to TOIL, the Claimant had to "use it or lose it".

 

14.   In my view the Chairman has plainly considered whether or not it is necessary to imply a term into the contract in question and has concluded that it is not. Moreover, the Chairman has concluded that not only is it unnecessary but also not permissible, given the clear and unambiguous terms of the bargain as drafted. In my view, what the Chairman was being asked to do was re-write the contract in question to make it fairer for the Claimant. The Chairman has (at least in my view) refused to do that and for my part I am unable to see how that could be described as either perverse or unreasonable.

 

15.   Moreover, I am unable to discern how it can be said that the decision demonstratively (or otherwise) flies in the face of the decision in Grove. Plainly it does not; the Chairman has determined that it is not necessary (or seemingly permitted) to imply a term simply to make a contract fair. In my judgment this part of the Decision falls squarely within the range of reasonable responses open to the Chairman and is therefore neither unreasonable nor perverse.

 

16.   While I am not strictly being asked to consider this wider point, it seems to me that the real point which arises here is whether or not there is a difference between a situation when an employee resigns and loses, voluntarily (one might say 'sacrifices') the opportunity to take TOIL, and the circumstance where an employee is dismissed and has their opportunity to take TOIL taken away from them. This case fall into the former category and in my view the latter category potentially falls to be treated differently from the instant case. The Decision may therefore not be applicable to / capable of being distinguished from a case concerning the latter category.

 

THE SECOND GROUND

 

17.   The second ground follows on from the first and is put on the same basis, namely that the Tribunal acted perversely. The contention relates to the finding that:

 

"It was the Appellant's own responsibility to ensure that he took his time off in lieu. There was no obligation on the Respondent to ensure that the Claimant took his time off in lieu".

The contention seems to be that the Appellant was unable to use his apportioned TOIL and so it follows that the Appellant, having not taken his TOIL deserves to be compensated accordingly.

18.   The difficulty with this argument is that it is seemingly predicated on the fact that the Appellant was prevented by his employer from taking TOIL. In my view, this argument (similar to the point raised above in paragraph 16) would have some considerable force if the Appellant had proved that the employer actively prevented the Appellant taking his accrued TOIL. However, the Appellant sought to prove this before the Tribunal at the first instance hearing but failed. The Tribunal found that in fact the employer did not either 'unreasonably or routinely [refuse] to allow the Claimant to take TOIL'.

 

19.   This is a finding of fact which is not capable of being appealed and so in my judgment the Appellant cannot succeed in an appeal which seeks a ruling that the Tribunal was perverse in finding that the responsibility fell on the Appellant to take his TOIL. The Tribunal considered whether or not the employer refused or otherwise prevented the Appellant taking his TOIL and found that there was no such refusal or prevention. It follows that the Tribunal could not be described as perverse in finding that the Appellant had the responsibility to ensure he took his accrued TOIL.

 

20.   Again, the situation may well be different in a case where the employee is dismissed by an employer as it would seem that they might constitute the employer preventing an employee from taking TOIL to which they were entitled, for its own benefit and in breach of contract. In those particular circumstances it seems to me that an argument it is necessary to imply a term may have more force.

 

THE THIRD GROUND

 

21.   Again, arguing that the Tribunal's ruling was perverse, the third ground seeks to argue that

 

"there was no evidence to support the Tribunal's conclusion that the Appellant did not "resign in response to any repudiatory act by the Respondent' but 'resigned to take up employment elsewhere".

 

22.   Unfortunately, by reference to the papers provided by and relied upon by the Appellant, the difficulty is that the above quote, which is taken from the Appellant's grounds of appeal, is not the finding or a finding of the Tribunal. What the Chairman recorded in her judgment was as follows: "There was no suggestion by the Claimant that he resigned in response to any repudiatory act by the Respondent; he resigned to take up employment elsewhere."

 

23.   In my view this sentence is clarifying that there was no claim of unfair dismissal being brought by the Claimant. In other words, the Chairman was not considering a situation or context in which the Claimant had been dismissed but rather a situation in which the Claimant had resigned. It is not possible to determine nor is it right to speculate as to why the Claimant did not bring a claim for 'unfair dismissal' (in this case that claim would seemingly have been brought on the basis that the dismissal was constructive). The essential point is that no such claim was before the Tribunal and in my view, the statement quoted above is simply a reference to the fact that there was no argument being put that the Appellant had been dismissed but rather had resigned.

 

24.   As set out above the question of whether or not someone had been dismissed or simply resigned might have an effect on whether or not a Tribunal could or would imply a term into a contract of employment in these circumstances. However, as the Appellant was not in fact making an argument or claim that he had been dismissed, it was surely correct of the Chairman to state: "There was no suggestion by the Claimant that he resigned in response to any repudiatory act by the Respondent; he resigned to take up employment elsewhere."

 

25.   It was always open for the Appellant to claim he had been dismissed. He chose not to, perhaps following legal advice from his representative firm. It strikes me as difficult to run on the one hand a case where there is no claim for an unfair dismissal but on the other hand to argue that the Tribunal was perverse to treat the case as one in which it was not being argued that there was a dismissal.

 

THE FOURTH GROUND

 

26.   The fourth ground is that "there was no evidence to support the Tribunal conclusion that the Appellant 'did not raise any formal or informal complaint about the working condition with Mr Gomes'". However, as with the third ground there is seemingly an issue with either mis-quoting or mis-reading the judgment.

 

27.   The finding of the Chairman was as follows: "On 18th July 2018, the Claimant attended his lunchtime shift. He did not raise any formal or informal complaint about the working conditions with Mr Gomes." The error which has seemingly been made is, at least on my reading of the Decision, is that the Chairman makes two points in paragraph 30 of the Decision: (i) the Appellant attended work on 18th July and when he arrived for work he made no complaints to either Mr Gomes or anyone else and commenced work and seemingly completed that shift; then (ii) shortly before the evening shift (5 minutes before) he did make complaints (seemingly informal ones) that the conditions were bad and he would be taking time off in lieu.

 

28.   It seems to me that there was no evidence that the Appellant made a complaint (informal or otherwise) when he attended and / or worked his lunchtime shift on 18th July. Indeed it would seem from the Decision that it was not contended to be otherwise. The problems were raised / became apparent shortly before the evening shift which is precisely what the Decision records. For my part I am unable to see how the Tribunal has acted perversely as contended for by the Appellant.

 

THE FIFTH GROUND

 

29.   The fifth ground can be dealt with in short order. It is contended that the Tribunal has 'blatantly ignored' a previous decision it made in relation to the Respondent from 2012. The decision is not properly referenced or otherwise referred to. The point simply seems to be that having been reprimanded previously for having an inadequate TOIL policy, the Tribunal has seen fit to again only reprimand the Respondent. Even if this is correct and I note that I have not been assisted in any way by the grounds of appeal in this regard, the findings of the Chairman in this regard are as set out at paragraph 33 of the Decision. Namely: (i) that the Respondent had no overtime / TOIL policy; but notwithstanding that (ii) the evidence did not show that the Respondent did not reasonably or unreasonably refuse to allow the Appellant to take TOIL.

 

30.   In my judgment the Chairman has not 'blatantly ignored' the pervious judgment. Either it was not brought to her attention properly or persuasively or it was but was not deemed to be useful or relevant. The crucial point in this regard is that the lack of a TOIL policy, while unfortunate in the view of the Chairman, was not relevant because, again in the view of the Chairman there was nothing unreasonable or routine about any refusal by the Respondent when considering requests for TOIL by the Appellant. That is the basis upon which the Decision has been made (in part) and while the Appellant may not agree with it that is not the same as it being perverse.

 

THE SIXTH GROUND

 

31.   The sixth ground is framed as an argument that the Chairman 'erred in exercising its discretion by misdirecting itself with regard to the principles in accordance with which its discretion should have been exercised'. The first difficulty with this argument is that the Appellant does not anywhere set out what the principles are, which have not been followed. The bigger difficulty in my judgment is that this is not in truth an appeal on a point of law. In truth it is an appeal as to factual findings which has been couched as an appeal on a point of law.

 

32.   The focus of the argument under this ground seems to be focused on two points:

 

a)     that the Chairman did not give sufficient and due weight to the evidence of the Appellant;             and

b)    that the Chairman impliedly concluded that the Respondent's consent was required for     the Appellant to take his time off in lieu.

 

33.   The conclusion and force of the argument being presented is that because of the above failures the Chairman reached two mutually exclusive conclusions: (i) it was the Respondent who decided when time off in lieu could be taken; and (ii) that the kitchen staff (i.e. the Appellant) determined when TOIL was taken.

 

34.   In my judgment the logic of this argument is at best strained and it seems to me entirely predicated on a conclusion that the Chairman has reached an implied conclusion. Unfortunately for the Appellant, what this argument achieves is not to highlight or explain the misdirection, but rather to distort the actual findings made in the Decision.

 

35.   The findings of fact were (as set out in part above) as follows (paragraph 33 of the Decision):

 

a)     "The Respondent only allowed TOIL to be taken at times which suited the business. The Claimant was no permitted to take TOIL when the restaurant was particularly busy;

b)    …kitchen staff arranged their own TOIL;

c)     It was the Claimant's own responsibility to ensure that he took his TOIL. There was no      obligation on the Respondent to ensure that the Claimant took his TOIL;

d)    The evidence did not show the Respondent to have routinely and unreasonably refused to allow the Claimant to take TOIL'.

 

36.   Despite the best efforts to characterise the reasoning of the Decision as perverse or incoherent, in my judgment the real complaint vis-à-vis the sixth ground (as with some of the other grounds of appeal) is that the Appellant is dissatisfied with the factual findings and is seeking a way to have those findings revisited which is not permitted pursuant to the Law.

 

THE SEVENTH GROUND

 

37.   The seventh and final ground is that the Chairman gave weight to the evidence of Mr Gomes notwithstanding he contradicted himself on a number of occasions. Unfortunately for the Appellant it is difficult to see how or why this constitutes an appeal on a point of law. What the Appellant must be saying is that the evidence of Mr Gomes was so contradictory that no reasonable Chairman could give any weight to that evidence.

 

38.   In the Decision the Chairman is clear 'where I have had to resolve factual disputes, I have done so on the balance of probabilities on the basis of my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence, including the documentary evidence'. (paragraph 9 of the Decision)

 

39.   There is nothing in the Decision nor anything in the grounds of appeal which highlights anything to suggest that Mr Gomes' evidence was so contradictory that it was not open to the Chairman to rely on it in any part. The Chairman has had the benefit of appraising Mr Gomes, hearing his evidence live and making the relevant assessment of his evidence. In my judgment the Chairman was entitled to place such weight on the evidence of Mr Gomes as considered to be appropriate.

 

          CONCLUSION

 

40.   Accordingly, for the reasons set out above I refuse leave to appeal the decision.

 

 

 

Advocate Ian Jones, Deputy Chairman                                                   Date: 10 July 2019

 

 


Page Last Updated: 11 Jul 2019