[2009]JCA138
COURT OF APPEAL
8th July 2009
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Before :
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M. S. Jones, Esq., Q.C., President;
N. Pleming, Esq., Q.C., and;
Miss C. Montgomery, Q.C..
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Between
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Colin Dennis Jeanne
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Appellant
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And
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Jersey Telecom Limited
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Respondent
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The Appellant in person.
Advocate D. M. Cadin for the Respondent.
JUDGMENT
pleming ja:
Introduction
1.
This is an
appeal against a decision of the Royal
Court on 19th December 2008 (“the
Decision”). The
Commissioner’s decision was to strike out the whole of the
Plaintiff’s claim contained in the Order of Justice, save for the refund
of the employer’s contributions under the Occupational Pension
Scheme. That aspect of the
Appellant’s claim continues and is not considered further in this
judgment.
2.
The
Appellant appeals on the following grounds (taken from the Notice of Appeal):-
(i)
The
Commissioner of the Royal Court has completely ignored the Plaintiff’s
statutory Contract of Employment as well as contractual statutory Terms and
Conditions Agreement; and
(ii) The Commissioner has denied the Plaintiff his
right to use the same principles applied to his Contract, as used by the
Defendant, to compile the Contract considering the local Laws are silent on
this issue; and
(iii) That common law rights of the parties are
restricted by the terms of the agreement made between the Defendant and the
Plaintiff; and
(iv) That the Plaintiff believes there is clearly a
conflict of interest in the case.
3.
The Appeal
has been conducted on the basis of the following written submissions:-
(i)
The
Appellant’s Notice of Appeal, and Grounds, together with a bundle of
documents (Bundle 1);
(ii) The Respondent’s contentions, together
with Bundles 2, 3 and 4;
(iii) The Appellant’s response to the
Respondent’s Bundle 4.
4.
The
Appellant’s written arguments are also set out in some detail in his
pleaded case, the Order of Justice dated 24th May 2007, the Reply dated 29th May 2008,
and the Answer to Defendant’s Request for Further and Better Particulars
dated 7th July
2008.
The factual background
5.
A brief
summary of the facts relating to the Appellant’s employment can be taken
from paragraphs 2 to 5 of the Decision, retaining the reference to plaintiff
and defendant:-
“2. The plaintiff was
employed by the defendant as a business systems wiring supervisor. His contract of employment, dated 22nd June, 1998,
provided in clause 3 that his employment could be terminated by the defendant
by the service of one month’s written notice. The contract referred to the staff
handbook for procedures in relation to inefficiency and discipline.
3. On 28th March, 2000,
the defendant terminated the plaintiff’s employment on the grounds of his
inefficiency and paid him one month’s salary in lieu of notice. Subsequently, the defendant paid the
defendant a further two months’ salary.
4. Although the defendant denies
that it treated the plaintiff unfairly or improperly, it accepts that in the
period leading up to the termination of the plaintiff’s employment, it
failed to comply with the inefficiency procedure set out in the staff handbook. That procedure allowed for four stages;
stage 1 being a verbal warning; stage 2 being a written warning; stage 3 being
a final written warning; and stage 4 being dismissal. There were no minimum periods for each
stage but warnings expired after 6, 9 and 12 months respectively subject to satisfactory
performance.
5. By letter dated the 4th
January, 2001, the plaintiff gave the defendant notice of his intention to
pursue a claim for damages for unfair dismissal, wrongful dismissal, loss of
opportunity, loss of reputation and breach of contract. In addition, he indicated he would be
claiming for loss of earnings and States of Jersey
pension contributions from March 2000, as well as Social Security payments due
under Jersey law.”
6.
The test
on an application to strike out is well-established. It is only where it is plain and obvious
that the claim cannot succeed that recourse should be had to the court’s
summary jurisdiction to strike out.
On an application to strike out under sub-paragraph (a) of r.6/13(1) of
the Royal Court Rules 2004 (that there is no reasonable cause of action)
evidence is not admissible. However, where an application is made under
subparagraph (b) (scandalous, frivolous or vexatious), or sub-paragraph (d)
(abuse of process), or where the application to strike out invokes the inherent
jurisdiction of the court, evidence is admissible, and may be considered by the
court. See Trant v Attorney
General [2007] JLR 231 at paras 22 and 23. The application in this case was made
under sub-paragraphs (a), (b) and (d) – and therefore evidence would be
admissible. However, it seems to be
that in this case the appropriate approach for the court to take is to consider
the appeal broadly on the basis that the Appellant can establish his factual
case at trial.
The Appellant’s Arguments on Grounds of Appeal (i) to (iii)
7.
In his
Notice of Appeal, the Appellant takes issue with the Commissioner’s
decision, paragraph by paragraph.
The Appellant’s main complaint is that the dismissal was in breach
of the Grievance and Disciplinary Procedures referred to in clause 12 of the
Contract of Employment and set out in the Jersey Telecoms/AEEU Staff Agreement
Book (“the Agreement”) incorporated into the contract by clause 14.
The Appellant relies on Section 10 of the Agreement headed Discipline and
Conduct (in a later version of the Agreement with the Court’s papers it
is headed “Discipline Inefficiency and Conduct”), referring in
particular to paragraph 2.5:-
“No employee will be
dismissed for a first breach of discipline except in the case of gross misconduct
when the penalty will be dismissal without notice or payment in lieu of
notice”.
8.
The
Appellant’s case is that there was a breach of this paragraph (and other
paragraphs) of Section 10 of the Agreement. In his pleadings, the Appellant also
relies on Section 12 of the Agreement, which deals with Inefficiency, and sets
out an “Inefficiency Procedure” which could, but may not, lead to
dismissal. It is clear, even on the
pleaded case, that this is an “inefficiency” case, not a
“misconduct/discipline” case.
The appropriate procedures under that heading are set out in Section 12
of the Agreement (later in Part 2 of Section 10). However, as the Appellant relies on Part
1 of Section 10, and to test the argument, I will concentrate the analysis on
the discipline provisions.
9.
Paragraph
1 of Section 10 of the Agreement is as follows:-
“Purpose and scope
This procedure is designed to
help and encourage all employees to achieve and maintain standards of conduct,
attendance and job performance. This procedure applies to all AMALGAMATED
ENGINEERING & ELECTICAL UNION employees of
Jersey Telecom with the aim of ensuring
consistent and fair treatment for all.
THIS SECTION IS BASED ON, AND IS IN THE SPIRIT OF, THE ACAS DISCIPLINE AT WORK
DOCUMENT, COPIES OF WHICH ARE HELD
BY GROUP MANAGERS, SHOP STEWARDS AND IN THE LIBRARY.”
10. Based on the words in capitals in Section 10 of
the Agreement (although they do not appear in Section 12) the Appellant argues
that there has been an express incorporation of the provisions of English
statutory law into the Contract of Employment. He summarises this aspect of the appeal
in the following extracts from paragraphs 6 to 9 of the Notice of Appeal:-
“(i)
The Plaintiff has a statute Contract, Terms and Conditions agreement with the
Defendant which is a legal document signed by both parties which should be
upheld by Law.
(ii) As there was no statutory
Contract Law in Jersey in 2000, the Plaintiff is basing his claim for Breach of
Contract, Unfair Dismissal and Wrongful Dismissal on the UK English case Law
and principles, the very same Law and principles used by the Defendant to
compile its own Contract document. The UK Employment Rights Act (1996), BERR
and ACAS have clear guidelines
with regards to claiming damages for Breach of Contract, Unfair and Wrongful
Dismissal that have been in practice for over 13 years (and now imported and
adopted by Jersey in 2003) and have proved effective in settling such
claims/disputes, but the States of Jersey Royal Court is refusing the Plaintiff
his right to use guidelines and principles in use from the UK English Civil
Courts.
(iii) In the past the States of
Jersey Royal Court has "cherry-picked" guidelines and principles from
other jurisdiction (mainly the UK) to settle cases where statutory Law is silent
in Jersey, but is refusing the Plaintiff that right to do the same considering
that Jersey did not have statutory Employment Laws to protect people with
Contracts, which is both unfair and unjust and considering that these Contracts
are compiled purely using UK principles and guidelines.
(iv) The Plaintiff will argue
that it is a fact (and stated in the Plaintiff’s Contract) that the
Defendant has compiled its own Employment Contract using guidelines and
principles published by Department of Trade and Industry (DTI) (now BERR), and
the ACAS based on the UK
Employment Rights Act (1996), therefore the relevant English case Law applies
in this case.”
11. The Appellant has formulated this complaint in
various ways since the case commenced, but it all comes down to the following
sequential steps:-
(i)
There was
no factual basis for the dismissal (he was not, as alleged by the Respondent,
inefficient);
(ii) If the Respondent had followed the procedures
in Sections 10 or 12 of the Agreement, there would have been no basis for any
dismissal – and he would not, or could not, have been dismissed;
(iii) Any dismissal contrary to the set procedures
was unjustified, unlawful and therefore wrongful;
(iv) By reason of this unjustified, unlawful and
wrongful dismissal, the Appellant has suffered loss and damage;
(v) Under Jersey Law (current at the time of the
dismissal in 2000), the Appellant accepts that his measure of damages for
breach of contract (wrongful dismissal) would not exceed the payment made by
the Respondent in lieu of three months’ notice;
(vi) However, as the Respondent based the Agreement
(in particular the Section 10 procedures) on English procedures and processes,
the Appellant can and will rely on “the UK’s Employee’s
Rights Act (1996), the very same Act used by the [Respondent] to compile its
own Contract of Employment and advised by ACAS
which was acceptable to the [Respondent], so must be acceptable in this case to
justify the [Appellant’s] damages claim” – taken from
paragraph 17 of the Appellant’s Answer to the Request for Further and
Better Particulars.
12. The Commissioner rejected this argument,
concluding that it was obviously unsustainable, and should be struck out on the
grounds set out in Rule 6/13(1) – that it disclosed no reasonable cause
of action, was frivolous, or otherwise an abuse of the process of the
court. I am anxious to ensure that
the Appellant, who is unrepresented, is given all necessary leeway in
presenting his argument, but I do not find it possible to disagree with the
Commissioners’ decision, for the reasons set out in the following
paragraphs (which are, essentially, the reasons given by the Commissioner).
13. I do not accept that the Appellant was ever
party to what he refers to, repeatedly, as a “statute
Contract”. There was a
written contract of employment, which was subject to Jersey Law – be that
customary law, or statute law. The
contract was made in Jersey, with a Jersey employer (wholly owned by the States of Jersey),
and the law of the contract is clearly Jersey Law. It is impossible to conclude that the
contract was made subject to English statute law. The Appellant relies on the
words introducing section 10 of the Agreement - “this section is based
on, and is in the spirit of, the ACAS
Discipline at Work document ….”. But this to say nothing more than that
the provisions of the Agreement are “based on”, or agreed and added
to the contract of employment “in the spirit of” the ACAS document.
It would require far clearer language to incorporate provisions and
remedies of an English statute, even if there could be such incorporation as a
matter of Jersey law (which I doubt).
14. The Appellant expressly confirmed (in the Reply
to the Request for Further and Better Particulars, and at the hearing before
the Commissioner – see paragraph 12 of the judgment), that all his claims
for unfair dismissal were and are based upon English statutory law. He accepts that he has no remedy under Jersey customary or statutory law.
15. The right of an employee not to be unfairly
dismissed by his or her employer is entirely a statutory right, created in Great Britain
by the Industrial Relations Act 1971, and continued in the Employment
Protection Act 1975, as amended by the Employment Rights Act 1996. This was a new statutory concept with
new statutory remedies. The
statutory right did not create an implied contractual right. An employee alleging an infringement of
the statutory right not to be unfairly dismissed could take his complaint to a
statutory body, the employment tribunal, but could not pursue it through the
courts. The procedure is wholly
statutory, with its own time limits, the Tribunal in England and Wales having
power (if it does not dismiss the complaint) to award relief, including
reinstatement or re-engagement, or compensation, consisting of a basic award and a compensatory award. The statutory right to seek compensation
for unfair dismissal must not be confused with the common law (or customary
law) claim for damages for wrongful dismissal.
16. But, as the Appellant accepts, no such
statutory scheme in relation to unfair dismissal existed in Jersey until Part 7
of the Employment (Jersey) Law came into force on 1st July
2005, which also established (in Part 9) the Jersey Employment Tribunal. As noted by that Tribunal in its first
Annual Report, the new law “brought
a radical change to the relationship between employers and employees”. The jurisdiction of Employment Tribunals
in Great Britain
does not extend to Jersey.
17. The Appellant refers to and relies on Jersey
Steel Co Ltd v. Holdyne Ltd (1972) JJ 2009 where,
at page 2020, the Royal Court “accepted
the reasoning and the decision itself” in Dawnays
Ltd v. F.G.Minter Ltd [1971] 1 WLR 1205 (Court of
Appeal of England and Wales). This
does not advance the Appellant’s argument. The Royal Court, in a claim concerning a
building contract using the Royal Institute of British Architects model form of
contract, accepted that relevant English case
law, considering the same contract terms, should be applied.
18. As noted by the Commissioner, the Courts of
Jersey have no power to import English statutory law on the basis that the
judges consider it would be in the interests of justice, or on the basis that
statutes from foreign jurisdictions may remedy perceived defects in the laws of
Jersey.
It is one thing to gain assistance from English common law when
developing Jersey customary law, or applying
customary law principles to novel or developing situations. It is quite another thing for the Court
to act, in effect, as legislator.
The statutory provisions were introduced into English law because there
was no pre-existing common law right to damages if a dismissal was unfair,
rather than wrongful. It is for the
legislature to remedy such defects, which it has subsequently done through the Employment
(Jersey) Law 2003. As the Commissioner concluded, at
paragraph 31 of his decision, “the
Court must apply the law of the Island and the
fact of the matter is that in 2000, the plaintiff, like every other employee in
Jersey at that time, had no remedy for unfair
dismissal. The defendant was
entitled to terminate his contract on notice, even if to do so was
unfair”. I agree.
19. The Appellant’s true complaint is that in
2000 he was dismissed by the Respondent in breach of contract, not in breach of
statutory rights. It was a claim for
wrongful dismissal, not unfair dismissal.
A wrongful dismissal is a dismissal in breach of the relevant provision
in the contract of employment. To
entitle the employee to damages for breach of contract, the employee must have
been engaged for a fixed period (not this case) or for a period terminable by
notice and dismissed either before the expiration of that fixed period or
without the requisite notice, as the case may be. Further, the dismissal must have been
wrongful, that is contrary to the express or implied terms of the contract of
employment. Dismissal would be
wrongful where it is without sufficient cause to permit the employer to dismiss
him summarily (not suggested in this case), or (relied on here) where the
dismissal is contrary to a contractual condition requiring observance of a
particular procedure.
20. The essence of the Appellant’s complaint
here is that he was dismissed without observance of the procedures set out in
Section 10 of the Agreement (or, perhaps more appropriately, Section 12 of the
Agreement referring to inefficiency).
That appears to be accepted by the Respondent, or in any event, should
form the factual basis for consideration of the application to strike out the
claim.
21. As I have already concluded, there can be no
possible basis for importing English statutory law into this Jersey Contract of
Employment. That is a hopeless
argument. This could be seen to be
the end of the appeal. But, the
Appellant’s complaint can perhaps be presented in a different way, along
the following lines:-
(i)
there is
here an admitted breach of contract by the Respondent;
(ii) the Appellant is entitled to damages from the
Respondent for wrongful dismissal;
(iii) Jersey customary law should now be developed or
refined by the Royal Court (or this Court on appeal) so that an employee who is
dismissed contrary to the express procedural requirements of the contract of
employment (and therefore, it could be said, dismissed in an unfair manner) is
entitled to deploy in calculating his damages for wrongful dismissal an
argument that if the correct procedure had been followed he would not have been
dismissed at all.
22. This amounts, effectively, to an argument that
in Jersey, such an employee should be allowed to claim for the loss of a chance
– the chance that the Respondent would have retained his services, and
could not (or at least would not) have dismissed him in any event.
23. Even when formulated in this way, I hope more
favourable to the Appellant, I am unable to accept that there is any basis for
the argument. I accept there is a
basis for contending that Jersey customary law
should, in relation to contacts of employment, follow English law addressing
similar issues – or at least it should do so in circumstances where the Jersey contract makes some reference to practices and
procedures in England. Jersey
customary law has already been influenced in this area by English law –
see, not only the cases mentioned in the Jersey Law Commission Consultation
Paper No. 5 “The Jersey Law of Contract” published in 2002,
but also (for example) McDonald v Parish of St Helier [2005] JLR
212. In that case, the
employee’s contract of employment entitled the employer to terminate the
contract on a week’s notice, but also provided for a disciplinary
procedure to be followed if misconduct were alleged, a procedure which was
ignored. Birt, Deputy Bailiff,
referred to English and Scottish case law, including (at paragraph 15) Malloch –v- Aberdeen Corporation [1971]
1 WLR 1578 (HL). At paragraph 17 he
addressed the situation (as alleged in this case) where an employer dismisses
an employee without following the agreed disciplinary procedures:-
“That principle [the
principle, under common law, that an employer has an unfettered freedom to
dismiss an employee at will] also applies, with minor modification, where the
contract provides for a disciplinary procedure to be followed but the employer
dismisses the employee without following the agreed disciplinary
procedure. In Gunton
–v- London
Borough of Richmond
upon Thames (1980) IRLR 321, the contract
of employment was expressed to be terminable upon one month’s notice but
there was also an agreed disciplinary procedure. The Borough dismissed the employee on
one month’s notice but without following the agreed disciplinary
procedure. The High Court held that
the dismissal was in breach of contract and the employee was entitled to
damages assessed on the basis that he was entitled to remain in the
Borough’s employment until normal retirement age subject to the usual
contingencies. The Court of Appeal
allowed the Borough’s appeal.
Shaw L J referred to the general right of an employer to dismiss on
notice for any reason or for none and held that the disciplinary procedure did
not have the effect of varying that right to dismiss on notice. The majority (Buckley L J and Brightman L J) held that the disciplinary procedure did
disenable the Borough from dismissing the plaintiff on disciplinary grounds
until the disciplinary procedure had been carried out. But the disciplinary procedure modified
the power to dismiss on notice only to the extent that the two provisions were
irreconcilable. Accordingly the
existence of the disciplinary procedure did not affect the employer’s
right to dismiss on notice for any reason (including for no reason) other than
a disciplinary one. For the purpose
of calculating the loss suffered by the employee as a result of the breach of
contract, it was to be assumed that the employer would have dismissed on notice
immediately following the conclusion of the disciplinary procedure. It followed that the employee was only
entitled to damages for lost wages in respect of the contractual period of
notice (one month in that case) plus the additional period during which he
would have remained in employment had the disciplinary procedure been
concluded.”
24. The suggestion that it should be assumed, for
the purposes of calculating damages, that the employer would have dismissed on
notice immediately following the conclusion of the disciplinary procedure is to
be found in Gunton in the judgment of Brightman LJ at page 474. It might be thought that, in expressing
the matter in that way, his Lordship intended that the court should make an
assumption of fact, regardless of the evidence. Properly understood, however, that is
not what was contemplated. As has
been more recently explained, according to “the normal common law rules
as to loss in cases of wrongful dismissal … (t)hat loss is limited to the
sums payable to the employee had the employment been lawfully terminated under
the contract. Once a dismissal has taken place, it is irrelevant to consider
what might have happened had a contractual disciplinary procedure been
followed. An employer is entitled to dismiss on contractual notice at common
law for whatever reason.” (See Focsa
Services (UK) Ltd v Birkett [1996] IRLR 325 per
Judge Peter Clark, at page 21; Wise Group v Mitchell [2005] ICR 896 per
Rimer J at page 917.)
25. In McDonald, the Royal Court also referred to English
cases in which Gunton had been followed and
applied, including Janciuk v. Winerite Ltd [1998] IRLR 63, in which Morison J said:-
“Some contracts of employment
require the employer to follow a disciplinary procedure before notice of
dismissal can be given. In other
words, the disciplinary procedure acts as a brake on the giving of notice. In such a case, the employer would be
acting in breach of contract if he gave notice terminating the contract without
first having followed the correct procedure. The measure of the loss for that breach
is based upon an assessment of the time which, had the procedure been followed,
the employee’s employment would have continued. Again, that does not require an analysis
of the chances that had the procedure been followed the employee might never
have been dismissed. At this stage
the court is engaged on a process of quantifying damage suffered by a dismissed
employee. The court is concerned to
know what would have happened, contractually, if instead of unlawfully
dismissing the employee the employer had not broken the contract, bearing in
mind the Lavarack –v- Woods principle. For this purpose, the assumption that
must be made is that the employer would have dismissed the employee at the
first available moment open to him; namely after the procedure had been
exhausted. The court is not
concerned to enquire whether the employee would have been dismissed had the
contract been performed, but rather for how long would the employee have been
employed before the employer was contractually entitled to give notice. This is on the assumption that the
employer had not been accused of acting in bad faith where other principles
might apply.”
26. The judgment in Janciuk,
(set out above) represents the common law position in England shortly
before the Appellant’s dismissal, and if applied to the Appellant’s
case would not increase the quantum of the claim for damages for wrongful
dismissal. The Appellant’s
remedies under common law for wrongful dismissal would have been limited to (1)
salary in lieu of notice, (2) pension rights, and (3) additional damages
representing the period which the employer would have taken to use and exhaust
the dismissal procedures. There is no scope, therefore, for an assumption that
the Appellant would not have
been dismissed at all – if the contractual efficiency and/or disciplinary
procedures had been followed through.
27. Should Jersey
customary law now be developed by the Courts so that the Appellant receives
what he would consider to be a more adequate remedy for the perceived
injustice? There are considerable
difficulties with such an approach.
The court would be invited to create a customary law remedy for unfair
dismissal, in parallel with a statutory claim covering the period up to the
date when the legislation came into force, and offering the prospect of damages
in excess of the statutory maximum.
This is a course I would be reluctant to approve. It was addressed and considered in McDonald,
heard when the Employment (Jersey) Law 2003
had been passed by the States but not brought into force. The employee there argued strenuously
that the customary law should be developed to improve the protections available
to an employee who had been the subject of high-handed or wrongful conduct by
an employer. The submissions were
rejected by the Deputy Bailiff:-
“We do not think that this
would be an appropriate way in which to proceed. The fact is that, although the statute
may not yet actually be in force, the legislature has made a decision as to how
it wishes to proceed. The
legislation has been passed and is ready to be implemented. In our judgment it would not be proper
for the Court, in these circumstances, to develop the customary law in a manner
which it knows is quite inconsistent with the path chosen by the
legislature. It would be a recipe
for chaos for the Court to proceed as Mr Le Quesne suggests. It would be different if the States had
simply been at the consultation stage, with no certainty as to what, if any,
legislation might be enacted. In
those circumstances, if the Court were to develop the customary law, the States
would be able to take note of this and decide whether the customary law as
developed met the needs of society or whether a statutory remedy was still
required. The statutory remedy would
be structured to take account as necessary of the developed customary law. But that is not the case here.”
28. This was also the approach of the majority of
the House of Lords in Johnson v. Unisys Ltd [2001] UKHL 13, [2003] 1 AC
518, at [56], [57] and [77]-[80].
There the employee, suing for wrongful dismissal, claimed that because
of the manner in which he had been dismissed he had since been unable to work,
with the result that he had suffered, and would continue to suffer, a
substantial loss of earnings. Their
Lordships were unwilling to extend any such recovery to cases simply of
wrongful dismissal (absent breach of a trust and confidence term) because they
regarded any extension of the law of wrongful dismissal as being precluded by
the legislation giving employees a statutory remedy for unfair dismissal. This was also the approach
of the House of Lords in Eastwood v. Magnavox Electric plc, and McCabe v.
Cornwall County Council [2004] UKHL 35, [2005] 1 AC 503, where Johnson
was distinguished (in a claim for stress related illness and inability to work)
in a case where, prior to dismissal the employee had acquired a common law
cause of action against his employer in respect of the employer’s failure
to act fairly towards him. See, in
particular, Lord Nicholls at paragraphs 12 to 14:-
“12. This
development of the common law, however desirable it may be, faces one
over-riding difficulty. Further development of the common law along these lines
cannot co-exist satisfactorily with the statutory code regarding unfair
dismissal. A common law obligation having the effect that an employer will not
dismiss an employee in an unfair way would be much more than a major
development of the common law of this country. Crucially, it would cover the
same ground as the statutory right not to be dismissed unfairly, and it would
do so in a manner inconsistent with the statutory provisions. In the statutory
code Parliament has addressed the highly sensitive and controversial issue of
what compensation should be paid to employees who are dismissed unfairly. This
code is now an established and central part of this country's employment law.
The code has limited the amount payable as compensation. In 1971 the limit was £4,160.
Reflecting inflation, this limit was raised periodically up to £12,000 in
1998. In the following year the statutory maximum was raised in one bound to
£50,000. From there it has risen to the present figure of £55,000.
13. In
fixing these limits on the amount of compensatory awards Parliament has
expressed its view on how the interests of employers and employees, and the
social and economic interests of the country as a whole, are best balanced in
cases of unfair dismissal. It is not for the courts to extend further a common
law implied term when this would depart significantly from the balance set by
the legislature. To treat the statutory code as prescribing a floor and not a
ceiling would do just that. A common law action for breach of an implied term
not to be dismissed unfairly would be inconsistent with the purpose Parliament
sought to achieve by imposing limits on the amount of compensatory awards
payable in respect of unfair dismissal. It would also be inconsistent with the
statutory exclusion of the statutory right where an employee had not been
employed for a qualifying period or had reached normal retiring age or the age
of 65 and further, with the parliamentary intention that questions of unfair
dismissal should be dealt with by specialised
tribunals and not the ordinary courts of law.
14. I
recognise that, by establishing a statutory code for
unfair dismissal, Parliament did not evince an intention to circumscribe an
employee's rights in respect of wrongful dismissal. But Parliament has occupied
the field relating to unfair dismissal. It is not for the courts now to expand
a common law principle into the same field and produce an inconsistent outcome.
To do so would, incidentally, have the ironic consequence that an implied term
fashioned by the courts to enable employees to obtain redress under the
statutory code would end up supplanting part of that code.”
Both of these cases were considered in McDonald.
29. I accept that customary law may be flexible
enough to address, and if necessary construct, a suitable (or more suitable)
cause of action, or remedy, to deal with the unfair manner of an
employee’s dismissal, but in my view, it would be wrong at this time to
embark on that course. The
legislation is now in place and it would be contrary to the clear intention of
the Assembly of the States of Jersey that there should be such a parallel and
alternative cause of action or remedy, covering the same ground.
30. In my view, the judgment of the Royal Court in Macdonald
represents a correct summary of the current state of the customary law of Jersey in relation to wrongful dismissal. A wrongfully dismissed employee must
normally accept the repudiation and sue the employer for damages. Exceptionally, an employee dismissed in
breach of a contractually binding procedure may be able to refuse to accept the
repudiation, but even in such a case the right to sue for continuing wages
lasts only for the period it would have taken for the employer to have
dismissed lawfully. The
employee cannot go further and sue for future loss on the basis of the chance
that he might have retained the job if the proper procedure had been used. Where the employee is suing for breach
of contract, the correct approach is that the wrongfully dismissed employee
should, so far as money can do so, be placed in the same position as if the
contract had been performed – i.e. in accordance with the normal rule in
the law of contract. This is done by the Court awarding as damages the amount
of remuneration that the employee has been prevented from earning by the
wrongful dismissal. But, if necessary, it must be assumed for the purpose of
calculating this loss that the employer would have ended the contract in the
way most beneficial to him (that is to say to minimise the possible damages). In the case of a contract terminable by
notice, the employee is entitled to recover only the amount of remuneration
during the notice period. That
remuneration includes wages or salary, including a reasonable amount of any
variable such as commission, loss of a vehicle and other fringe benefits and,
relevant to Mr Jeanne’s claim, any loss of pension rights. Where, as here, the contract of
employment imposes compliance with a procedural mechanism before the employee
can be dismissed, the employee is entitled to additional damages representing
the shortest time in which the employer could have followed that procedure
through to dismissal, but the court is not concerned to enquire as to whether
or not the employee would have been dismissed at all. In other words, the court will not award
damages to compensate the dismissed employee for the loss of the chance that
he/she would not have been dismissed at all.
31. It could be said that there remains a basis for
the Appellant to feel a sense of injustice, in that the express term of the
contract “No employee will be
dismissed for a first breach of discipline except in the case of gross
misconduct” does not appear (in a discipline case) to offer the
protection conveyed by the clear words used. An employee could be dismissed for a
first breach of discipline, or could be dismissed without compliance with the
agreed procedure – whether under Section 10 or Section 12 of the
Agreement. But any such sense of
injustice was corrected by legislation, not (in the end) by the development of
customary law. Unfortunately for
the Appellant this correction took effect only after he was dismissed in
2000. The Employment (Jersey) Law 2003 came into force on 1st July, 2005,
and did not have retrospective effect.
The Appellant registered a claim with the Jersey Employment Tribunal in
October 2007, but it was not pursued.
In any event even a successful claim under the statute would not have
provided the Appellant with anything other than a small fraction of the damages
claimed in these proceedings – a basic award limited to £10,000 and
a compensatory award limited to £63,000.
32. Against this background, the question remains
as to whether or not this is a suitable case for strike out. As noted in paragraph 6 above, the
relevant principles to be applied in this case are not controversial, and can
be summarised as follows (see, from many cases, In re Esteem Settlement
[2000] JLR 119 (Royal Court),
and Trant v. Attorney General [2007] JLR 231 (Court of Appeal)):-
(i)
The
summary process should only be exercised in plain and obvious cases:-
(ii) It cannot be exercised by a minute and
protracted examination of the documents and facts of the case, in order to see
whether the plaintiff really has a cause of action;
(iii) Where it is alleged there is no reasonable
cause of action, the claim should not be struck out if the cause of action has
some chance of success, or raises some question fit to be decided by a court,
when only the allegations in the pleadings are considered;
(iv) The mere fact that the case is weak, and not
likely to succeed, is no ground for striking it out;
(v) The power to strike out where it is alleged
that the claim is frivolous or vexatious, is reserved for cases which are
obviously frivolous or vexatious, or obviously unsustainable;
(vi) Reliance on “abuse of the process of the
Court” should be reserved for cases where the Court concludes there is
improper use of its machinery, for example as a means of vexation and
oppression in the process of litigation;
(vii) The categories of conduct rendering a claim
frivolous, vexatious or an abuse of process are not closed but depend on all
the relevant circumstances and for this purpose consideration of public policy
and the interests of justice may be very material.
33. My only remaining concern is whether or not
this claim should be allowed to proceed to trial when it may provide an
opportunity for the Royal Court to consider the development of customary law in
this area, and whether that development should be considered and tested against
actual facts found after a trial rather than on an assumed (although broadly
agreed) factual basis. It is not
the role of the courts to decide, in a strike out application, whether it would
find for the Plaintiff. The correct
approach must be that the summary jurisdiction should be reserved for cases
where the court is sure that the claim, as pleaded, will fail. Having given careful consideration to
the pleaded case, and to the Appellant’s lengthy written submissions
(which I have treated as supplementing the pleadings) I am sure that the claim
will fail. This is not merely a
weak case, it is a hopeless case, and if pursued to trial it will fail.
34. For all these reasons, I would dismiss the
appeal in relation to Grounds (i) to (iii)
The Appellant’s Arguments on Ground of Appeal (iv)
35. The Appellant summarises his complaint under
this head in paragraphs 1 of his Notice of Appeal, expanded in paragraphs 12 to
14. Paragraph 1 sets out the
position succinctly, identifying two grounds:-
“Conflict of Interest
During the period of early 2004
and until May 2006 the Plaintiff was taking legal advice from the Law firm O'gier of Whitley Chambers, until O'gier
decided to withdraw their services and would not act on the Plaintiff’s
behalf under the Legal Aid system. At that particular time, the Commissioner of
the Royal Court
namely Mr J A CIyde-Smith was a practicing Advocate
and Senior Partner of O'gier. Therefore the Plaintiff
believes that there is clearly a conflict of interest in this case and rejects
the Commissioner Court
judgment/decision;
There is also the issue of the
States of Jersey Royal Court
adjudicating between a States of Jersey Department and an unfairly dismissed
employee. The Plaintiff also believes and will argue that again there is a
conflict of interest in this case whereby the Royal Court has weighted this case in
favour of the Defendant without obtaining the facts as to why the
Plaintiff’s Contract was ignored and terminated by the defendant.”
36. The first ground is directed at the position of
the Commissioner Clyde-Smith.
37. The question of bias was recently considered by
this Court in O’Brien v Marett [2008] JCA 178 where, at paragraph
107, I summarised the law as follows:-
“107: The principles in
relation to bias, and récusation, are now clearly established. Advocate Sinel has referred the court to
a number of recent authorities, from England and in Jersey. From those authorities, including Porter
v. McGill [2002] AC 357 (particularly paragraphs [99]-[105]), Locabail (UK) Limited v. Bayfield Properties
[2000] QB 451, at 480, and Baglin v. Attorney General [2005] JLR 180, at
paragraph [4], the test is whether a fair-minded and informed observer would
conclude that there is a real possibility of bias (actual bias not being
asserted) on the part of the tribunal.
See also, to the same effect, In re Medicaments and Related Classes
of Goods (No 2) [2001] 1 WLR 700, at paragraph [85] after lengthy
consideration and analysis of the Strasbourg
jurisprudence considering Article 6 of the ECHR. See also, from Jersey case-law, in addition to Baglin, Anchor
Trust Co Ltd v. Jersey FSC [2005] JLR 428.”
38. The issue in this case therefore is whether a
reasonable observer aware of the facts would conclude there is an appearance of
bias (a real possibility of bias) by reason of the fact that the Commissioner
had been a senior partner in Ogier, at the time when the Appellant was
represented and advised by that firm.
There is no suggestion that he had any personal dealing with the
Appellant’s case, advised him, or even worked in the same
department. There is no suggestion
that the link between the Commissioner and Ogier was raised at the hearing, or
even known to the parties, or to the Commissioner. The Respondent’s
central answer to this point is as follows:-
“Had Commissioner
Clyde-Smith considered there to be a conflict of interest in him hearing the
Respondent’s Appeal he would have said so. The reality is that there was no
conflict in Commissioner Clyde-Smith hearing the Respondent’s Appeal and
there is no conflict in proceedings being brought before the Royal Court.”
The first sentence provides no answer. This court should be and is concerned
with the appearance of bias, not
merely actual bias. However, I do
accept that on the facts known to this Court, there is no basis for concluding
that a fair-minded and informed observer could form the view that there is here
a real possibility of bias. In any
event, as set out above, the strike out application essentially raised
questions of law, not fact, and this Court is well able to reach its own
conclusions. Accordingly, I reject
the first ground, and would not allow this appeal on the basis of conflict of
interest, or on the basis of any appearance of bias.
39. As for the second ground, this can be taken
much more briefly. In every
jurisdiction, including here in Jersey, where
the rule of law applies, there will be a need for courts to adjudicate on
disputes between the citizen and the state. In my opinion there can be no objection
to the Royal Court hearing and resolving a claim by the States of Jersey
against a citizen of Jersey, or vice versa. I would not allow the appeal on this
ground.
40. Conclusion
41. For
the reasons set out above I would dismiss this appeal.
Jones JA:
42. I agree
Montgomery JA:
43. I also agree
Authorities
Jeanne
v Jersey Telecoms [2008] JRC
222.
Trant v Attorney General [2007] JLR 231.
Industrial Relations Act 1971.
Employment Protection Act 1975, as
amended by the Employment Rights Act 1996.
Employment (Jersey)
Law 2003.
Jersey Steel Co Ltd v. Holdyne Ltd (1972) JJ 2009.
Dawnays Ltd v. F.G.Minter Ltd [1971] 1 WLR 1205.
Jersey Law Commission Consultation
Paper No. 5 “The Jersey Law of Contract” published in 2002.
McDonald
v Parish of St Helier [2005] JLR 212.
Malloch –v- Aberdeen Corporation [1971] 1 WLR 1578 (HL).
Focsa Services (UK) Ltd v Birkett [1996] IRLR
325.
Wise Group v Mitchell [2005] ICR 896.
Janciuk v. Winerite Ltd [1998] IRLR 63.
Johnson v. Unisys Ltd [2001] UKHL 13,
[2003] 1 AC 518.
Eastwood v. Magnavox Electric plc,
and McCabe v. Cornwall
County Council [2004]
UKHL 35, [2005] 1 AC 503.
In
re Esteem Settlement [2000] JLR 119.
O’Brien
v Marett [2008] JCA 178.