IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

IN THE MATTER:

 

BETWEEN

FIRE AND RESCUE SERVICE

ASSOCIATION

CLAIMANT

 

AND

 

 

STATES EMPLOYMENT BOARD

RESPONDENT


 

LEAVE TO APPEAL DECISION


 

 

Reference:               [2018] TRE 133

Before:                         Mr. M. Salter, Deputy Chairman                         

 

 

THE DECISION

 

Permission to appeal is refused.

 

THE REASONS


The Litigation


1.              By a claim form received by the Tribunal on 4th September 2018.

 

2.       The matter came before Mrs. Griffin, Chairman and Mr. S. Cross and Mrs. E. Harper, panel members, on 14th November 2018. The Tribunal’s judgment was sent to the parties on 4th December 2018;

 

3.              On 28th December 2018, the Respondent appealed the decision. The grounds of appeal are set out in its application as being:

 

a.       Errors of law;

b.      The decision of the Tribunal was perverse; and

c.       The Tribunal failed to give any sufficient reasons for the decision.

The Law


4.              So far as is relevant the Employment (Jersey) Law 1996 states:

94 Appeals

(1)      A person aggrieved by a decision or order of the Tribunal may, on a question of law only, appeal to the Royal Court by applying to the Tribunal for leave to appeal.

 

(2)      An application to the Tribunal for leave to appeal must be made before the end of the period of 28 days beginning with the date of the Tribunal’s decision or order.

 

(3)      However, the Tribunal may make an order varying the 28-day period –

 

(a)      of its own motion; or

(b)      on application by the person aggrieved, which application may be made either within the 28 day period or after its expiry.

 

(4)      A person aggrieved by the Tribunal’s –

 

(a) decision to refuse an application under paragraph (3)(b); or

(b) order under paragraph (3),

 

may appeal to the Royal Court on the ground that the decision or order was unreasonable, and the Court may make such order as it thinks fit, including granting or refusing leave to appeal.

 

(5)      The Tribunal may order a stay of any decision or order to which the application for leave to appeal relates –

 

(a) pending the Tribunal’s determination of that application; or

(b) pending further order of the Royal Court where –

 

(i) the Tribunal grants or refuses leave to appeal, or

(ii) paragraph (3) applies.

 

(6)      Where the Tribunal refuses leave to appeal, the person aggrieved may apply to the Royal Court for leave to appeal.


Grounds of Appeal


5.          The Application for Leave to Appeal has been received within the relevant time period in Art 94(2), and contains the three Grounds set out above. I will deal with each ground of appeal in turn.

Error of Law

6.           I am not satisfied that the particularised errors of law in paragraph1.1(i) to (v) nor 1.6(i) to (iii) demonstrate any error of law by the Tribunal in its decision as opposed to seeking to relitigate points that were rejected by the Tribunal in its decision.

 

7.           When addressing ground 1.1(i) the Tribunal noted the difference between the dispute and the cause of that dispute in paragraph 35 and found it was the dispute it was concerned with, and this was one between employer and employee.

 

8.              There being a dispute between the Claimant and the Respondent who are the employer ground 1.1(ii) demonstrates no error of law.

 

9.              Ground 1.1(iii) and (iv) appear to be appeals against a finding of fact labelled as an error of law, and demonstrate no error in the Tribunal’s approach.

 

10.          Having made the findings it did the Tribunal considered its powers under Art 23 ERJL and made an appropriate declaration; its decision to do so demonstrates no separate error of law.

 

11.       The basis for the grounds of appeal in paragraph 1.6(i) to (iii) also do not demonstrate an error of law, 1.6(i) appears to be an appropriate characterisation of the dispute between the Claimant and the employer, as the Tribunal notes the root cause of that dispute is not relevant (paragraph 35 of its reasons) and it further considered this at paragraph 42 and reminded itself of the scope of its jurisdiction which is to determine a dispute between employer and its employees, the potential wider ramifications of that dispute on the employer, employees, other employers or employees is itself irrelevant to question before this Tribunal and so ground of appeal 1.6(ii) demonstrates no error of law by the Tribunal, similarly ground 1.6(iii).

 

12.        Paragraph 1.7 does not disclose an error of law in the Tribunal’s judgment at paragraph 54 and 55.  Code 3 at paragraph 28 of their decision is mandatory in its terms. The Tribunal say that the failure to follow the agreed procedure was enough, in its conclusion, to render this employer’s conduct “unreasonable” in these circumstances. The Tribunal did consider how other factors presented by the Respondent at the hearing affected its assessment of the Respondent’s conduct, the Tribunal found they did not.

Perversity

13.         The particulars of the appealed perversity are not provided in the Application. If it is based on an allegation of a misdirection in law, it adds nothing to the first ground of appeal and so fails for the same reasons.

 

14.          If, the perversity ground of appeal is based on a finding of fact, no particulars are provided of unsupported errors of fact and so I presume no such failures are alleged.

 

15.        Accordingly, this ground too fails to demonstrate an error of law as I am satisfied that the findings made by the Tribunal are supported by evidence and material which the parties put before it, and so cannot be said to offend reason based on that material and does not show a decision which no reasonable Tribunal could have reached. The decision does not satisfy the restricted definition of perversity (Yeboah v Crofton [2002] IRLR 634 CA).

Failure to Give Sufficient Reasons for the Decision

16.      The Tribunal’s reasoning is transparent, structured and easily determinable from the judgment, it contains a summary of the Tribunal’s factual conclusions and a statement of reasons which led them to those conclusions, it informs the parties why they have won or lost and when looked at in the round and in the context of the material before the Tribunal and the submissions it received from both parties and which are set out in the judgment is sufficient. (see Meek v City of Birmingham DC [1987] IRLR 20 CA).

Conclusion

17.        Accordingly I do not consider that the judgment demonstrates a failure to give sufficient reasons for the decision and so does not contain an error of law. I have considered the request for a stay of the declaration pending the appeal. I refuse the request, and in doing so weighed the respective positions if I granted the stay or not and have found that in light of the decision of the Tribunal and there is no guarantee that an appeal would be lodged, the Tribunal judgment should remain in effect.

 

Mr. M. Salter, Deputy Chairman                                                    Date:   7 January 2019

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Page Last Updated: 07 Jan 2019