IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
Miss Karolina Gorazd
Quayside Café Limited
Hearing Date: 26 & 27 September 2017
Before: Mrs Hilary Griffin, Chairman
Mr John Noel & Mrs Marilyn Wetherall,
For the Claimant: Mr Michal Kordyka
Ms Edyta Buard, Translator
For the Respondent: Mr Stephen Drakes, Director
unanimous decision of the Tribunal is that, due to statutory illegality arising
from an illegal employment contract, the Claimant is not entitled to pursue her
Claimant’s claims are therefore struck out.
24 April 2017, the Claimant submitted the following claims to the Employment
and Discrimination Tribunal ("Tribunal"):
failure to pay notice pay);
bank holiday pay;
failure to provide uninterrupted
to provide written terms of employment; and
h) failure to provide itemised pay
Direct race discrimination;
Indirect race discrimination;
Claimant withdrew her claim of indirect discrimination in her Further and
Better Particulars of Claim, dated 11 July 2017. She then withdrew the remainder of the
Discrimination Claims at the start of the Hearing.
behalf of the Claimant, the Tribunal heard evidence from the Claimant and WC, a
friend of the Claimant. On behalf of the Respondent, the Tribunal heard
evidence from Mr Stephen Drakes, director of the Respondent, and KJ, Manager of
the Respondent. The parties provided the Tribunal with a file of documents to
which it was referred throughout the Hearing.
the course of the Hearing, it became evident to the Tribunal that it would have
to consider a preliminary issue regarding the question of whether the Claimant
was legally entitled to pursue the Claims.
Tribunal heard that the Claimant arrived in Jersey in June 2014 and started
working for a company called Clean 24/7 on 30 June 2014. Clean 24/7 was owned
and run by Mr Drakes and the company held three licences to employ individuals with
less than five years’ residency in Jersey. Such individuals have ‘Registered’
status under the Control of Housing and Work (Jersey) Law 2012 (“Housing and
Work Law”). Clean 24/7 was therefore
legally entitled to employ the Claimant.
Drakes also owned the Respondent. The Respondent did not hold the necessary
licences to employ Registered individuals with less
than five years residency in Jersey.
2015, Clean 24/7 lost a number of cleaning contracts. The Claimant therefore started to work for
the Respondent on an informal basis for a few hours each week. However the Tribunal heard from both parties
that from September 2015 the Claimant became a full-time member of the
Respondent’s staff. Her core working hours were between 6am and 3pm, six days
per week. The Claimant continued to undertake some work for Clean 24/7 until
mid-2016, but the majority of her hours were for the Respondent. Both parties believed that, at the time of
her resignation, the Claimant was an employee of the Respondent and not of
of the Claimant’s claims to the Tribunal was that the Respondent failed to
provide her with a contract of employment (or statement of terms). The Claimant
also submitted that this alleged statutory failure amounted to a repudiatory
breach of contract which resulted in her constructive dismissal.
his evidence, Mr Drakes confirmed that the Respondent did not issue the
Claimant with a contract or statement of terms.
However in the Respondent’s defence, he argued that he was not able to
provide the Claimant with a contract or statement of terms because the
Respondent did not have the necessary licence to employ her in the first
place. Mr Drakes therefore told the
Tribunal that the Claimant worked for the Respondent illegally. Nonetheless, Mr
Drakes believed her to be an employee of the Respondent.
her evidence, the Claimant acknowledged that she knew from the outset that the
Respondent did not have the necessary licences from the Population Office to
employ her; she knew that she was working illegally. Indeed she gave evidence
that she spoke to Mr Drakes in February 2016 about receiving a contract and she
asked him to go to the Population Office to obtain a licence to employ her. Therefore there was no dispute between the
parties that the Claimant worked for the Respondent in breach of the Housing
and Work Law.
the provisions of the Housing and Work Law, an individual who is classed as
having “Registered” status (ie has lived in Jersey for less than five years and is not
“Licenced”) may not work for a business unless that business has a licence
which specifically entitles it to employ Registered individuals. Therefore, if a business employs a
“Registered” individual but does not have the necessary licence, it acts
general rule with regards to an illegal contract is that the contract will be
unenforceable and no statutory rights (including the right to complain of
unfair dismissal) can be enforced under it.
this case, the preliminary question which the Tribunal had to consider was
whether the Claimant’s employment by the Respondent was directly prohibited by
legislation. This would amount to
‘statutory illegality’. Based on the
evidence from both parties, there was no doubt that the Claimant’s employment
was prohibited by the provisions of the Housing and Work Law. Indeed both parties freely acknowledged this
fact in their evidence. The oral
agreement between the parties therefore amounted to an illegal contract which
was void and unenforceable by either party.
Claims arise entirely from the premise that the Claimant was an employee of the
Respondent. Indeed, the right of an individual to bring claims for unfair
dismissal, wrongful dismissal and other statutory employment claims flows
directly from that individual’s status as an employee. Consequently, in the absence of that employee
status, the individual has no statutory or contractual employment rights.
set out above, the contract was void and unenforceable. Therefore the Claimant:
not an employee of the Respondent;
not enjoy statutory employment rights as set out in the Employment (Jersey) Law
c) cannot pursue any breach of
contract claim against the Respondent because the contract did not exist in
this basis, the Claimant may not pursue the Claims in the Tribunal and the
Tribunal does not have jurisdiction to consider the Claims any further.
Claims are therefore STRUCK OUT.
Mrs Hilary Griffin, Chairman