Employment - application for leave to appeal against a decision of the
Employment and Discrimination Tribunal.
[2019]JRC164
Royal Court
(Samedi)
22 August 2019
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Before :
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Sir William Bailhache., Bailiff, sitting
alone.
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Between
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Artur Sumera
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Applicant
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And
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Atlantique Seafood trading as Soy Sushi
Restaurant
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Respondent
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Applicant appeared on his own behalf.
judgment
the bailiff:
1.
This is my
decision on the papers in relation to an application for leave to appeal
against a decision of the Employment and Discrimination Tribunal on 7th
March, 2019, in relation to a hearing which took place on 5th
February, 2019, when the Applicant claimed for both untaken time off in lieu of
overtime and unpaid wages for a period when he refused to work because of the
lack of extractor fans in the kitchen.
Both claims were refused by the Chairman of the Tribunal, and the Deputy
Chairman refused permission to appeal in a reasoned decision dated 10th
July, 2019.
2.
Appeals
from decisions of the Employment and Discrimination Tribunal (“the
Tribunal”) are governed by Article 94 of the Employment (Jersey) Law
2003. A right of appeal to the
Royal Court lies on a question of law only, and leave to appeal is first sought
from the Tribunal. Where the
Tribunal refuses leave to appeal, the person aggrieved may apply to the Royal
Court for leave to appeal.
3.
I am
therefore required to consider whether the grounds of appeal and accompanying
letter which the Applicant has put before me provide a reasonable basis for
concluding that a point of law arises and that permission to appeal should be
granted. I have not found it
necessary to hold an oral hearing in order to determine this question.
4.
Leave to
appeal is refused. It should only
be granted where it is clear that a point of law has arisen which would lead to
the original decision of the Tribunal being set aside. The Deputy Chairman, Advocate Jones
referred to a question of law as being characterised in this way:-
(i)
The
Tribunal has misdirected itself in law or misunderstood the law or misapplied
the law; and/or
(ii) There was no evidence to support a particular
conclusion of finding of fact; and/or
(iii) 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.
5.
I consider
that that test is appropriate for the purposes of the present appeal although I
add that there may be cases where a further ground of appeal might be based
upon an incorrect procedure adopted in the Tribunal.
6.
The
Chairman of the Tribunal’s judgment sets out the following facts.
7.
The
Applicant was employed as a chef by the Respondent between May 2016 and 15th
July, 2018 when he resigned, having given notice to terminate. The Tribunal indicated in its judgment
of 7th March that there was no suggestion by the Applicant that he
had resigned in response to any repudiatory act by the Respondent, but rather
he resigned to take up employment elsewhere.
8.
The
contract of employment (“the Contract”) provided that the Applicant
should work basic hours of 45 hours per week from Monday to Saturday. He was paid £490 per week plus
£50 for tips. He was not
entitled to overtime payments but there was an overtime provision in these
terms:-
“Normal hours of
work/overtime conditions (if any)
45 hours over Monday to
Saturday. There is no paid overtime
in your role. Any time worked in
excess of your normal hours of work will be given as time off in lieu.”
9.
When the
Applicant resigned, he had an amount of time worked in excess of his normal
hours of work in respect of which, had he still been working, he would have
been able to claim time off in lieu.
The questions which arise were rightly identified by the Chairman of the
Tribunal as these:-
(i)
What were
the Applicant’s contractual hours?
(ii) Did the Applicant habitually work in excess of
his contractual hours?
(iii) If he did habitually work in excess of his
contractual hours, did the Applicant take time off in lieu of those excess
hours?
(iv) If not, was the Applicant’s failure to
take time off in lieu due to the Respondent’s refusal to agree to his
requests?
(v) Was the Respondent required to pay the
Applicant in lieu of untaken time off in lieu upon the termination of the
Applicant’s employment?
10. The Tribunal had before it a number of witness
statements and documentary papers. It
also heard evidence orally from three witnesses. The Tribunal in its judgment makes plain
that it heard both parties by way of oral submissions and considered all of the
evidence. The Chairman said this:-
“I only summarise in this
judgment the facts and evidence which are relevant to the issues. 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.”
11. The Tribunal’s judgment sets out the
evidence and the findings of fact at paragraph 33 of its judgment:-
“Having considered all the
evidence, I made the following findings of fact:-
(a) During
the course of his employment, the claimant rarely took TOIL and he generally
worked a 49 hour week.
(b) (The
Respondent) by the Head Chef (and occasionally Mr Gomes) only allowed TOIL to
be taken at times which suited the business. The Claimant was not permitted to take
TOIL when the restaurant was particularly busy.
(c) The
complaint text message and the Respondent’s response showed that kitchen
staff arranged their own TOIL. Mr
and Mrs Gomes did not monitor their staff overtime and TOIL. The
Respondent’s failure to implement a formal overtime and TOIL policy was
unfortunate and should be addressed by the Respondent urgently. The lack of policy meant that Mr Gomes
could not monitor overtime and TOIL and could not ensure that overtime and TOIL
were fairly and transparently implemented.
I did not accept Mr Gomes’ assertion that it would be impossible
to implement such a policy.
(d) 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.
(e) The
evidence did not show the Respondent to have routinely and unreasonably refused
to allow the claimant to take TOIL.
The claimant’s own evidence was that he only asked for TOIL
approximately once a month. On
these facts, I concluded that one refusal per month did not constitute
unreasonable behaviour. Further,
whilst the complaint text message served to confirm that there were occasions
when the Respondent refuse to allow the claimant to take TOIL, it did not show
that those refusals were unreasonable, nor did it show that such refusals
happened routinely throughout the claimant’s employment. Similarly the
complaint text message only showed that the complainant worked long hours; it
did not show that the Respondent routinely refused to allow the claimant to
take TOIL.”
12. There was a finding of fact that the Respondent
had not unreasonably and routinely refused to allow the Applicant to take time
off in lieu. Although the grounds
of appeal seek to raise that conclusion before the Royal Court on appeal, in my
judgment the finding of fact is conclusive and cannot give rise to an appeal. It is true that it amounts to an
evaluation of the evidence by the Tribunal, but the findings of fact which
cannot be reopened are that the Applicant only sought time off in lieu once a
month. There is no contradiction,
despite what the Applicant says in his grounds of appeal, in the Tribunal
saying that “time off in lieu [was]
to be taken at times which suited the business” and “the kitchen
staff arranged their own time off in lieu”. In its context, what that shows is that
provided the kitchen staff were taking time off at times which suited the
business, the Respondent would permit them to do so in accordance with their
contractual terms. The
Tribunal’s decision refers to busy times of the year for the
Respondent’s business and relatively quiet times, and there is no reason
why the two statements in the Tribunal’s decision cannot be
reconciled. The kitchen staff could
arrange their own time off in lieu provided it was taken at the quiet times of
the year.
13. The Tribunal referred to the English case of Vision
Events (UK) Limited v Patterson UKEAT/015/13 in which the Employment
Appeals Tribunal held by a majority that in the absence of an express term in
the contract regarding payment on termination of employment, the Employment
Tribunal was wrong to imply a term into the contract that the employee was
entitled to be paid for accrued hours that he had not taken off in lieu. A tribunal may not imply a term in order
to make a contract “fair”.
14. The Tribunal needs of course to be extremely
careful in referring to English employment decisions because the law of
contract in England and Wales is not the same as the law of contract in
Jersey. In the case of implied
terms, as the Deputy Chairman set out in his decision refusing leave to appeal,
the leading case is Grove v Briscoe and Baker [2005] JLR 348. That case confirms that a term may be
implied if it is one which would customarily be implied in a contract of the
kind in question in the relevant case, or if the inclusion of such a term was
necessary because otherwise the contract would be futile, inefficacious or
absurd.
15. In the instant case, the terms of the contract
did not provide for the question as to whether untaken time off in lieu should
be remunerated on the termination of a contract. The Deputy Chairman considered that
possibly a distinction could be drawn where termination took place at the
instance of the employer from those cases where termination occurred at the
instance of the employee. Here
there is no dispute that it was the Applicant, as employee, who gave notice to
terminate the contract. One of the
factor which may have gone into his assessment of whether he should give notice
or not was untaken time off in lieu. It is hard to see why the Tribunal should
afford greater significance to that factor than clearly did the Applicant.
16. In my view, the contract was not entirely
silent as to what the position would be.
It provided expressly that there would be no paid overtime. It seems to me to be impossible to say
that in those circumstances, where an employee gives notice with untaken time
off in lieu, he should be paid for it. To imply a term that on the termination
of employment the employee should get paid for untaken time off in lieu would
be equivalent to saying that he was to be paid overtime. That was not agreed, and such an implied
term would in my judgment run contrary to the express terms of the agreement. Even if that is incorrect, it is
certainly not the case that one needs to imply such a term for the contract not
to be futile, inefficacious or absurd.
17. In my judgment, the Tribunal was well within
its ambit of discretion to decide that, having made the findings of fact which
it did, the applicant was the party with the responsibility for claiming time
off in lieu, and on his failure to do so at the termination of employment at
this instance, his right to claim such time off in lieu lapsed. As the Tribunal put it, the effect of
the overtime clause was that, as regards time off in lieu “the claimant had to use it or lose it”.
18. There being no error of law, the application
for leave to appeal in relation to the unpaid overtime claim therefore is
rejected.
19. The applicant also brought a claim for unpaid
wages upon the basis that there were times he was unable to work because of
intolerable conditions in the kitchen. The Tribunal made the following findings
of fact, having indicated that it found Mr Gomes evidence to be more reliable
than that of the Applicant and his supporting witness:-
“(a) The Respondent placed two fans in the
kitchen. Mr Gomes’ evidence that he did so was supported by text messages
which Mr and Mrs Gomes sent to the claimant on 3rd and 4th July 2018, both of
which referred to more than one fan being set up in the kitchen.
(b) The
combined effect of four open windows and the open nature of the kitchen and
restaurant meant that there was sufficient fresh air in the kitchen for the
working environment to be reasonable both in terms of temperature and in terms
of smoke extraction; and
(c) The
temperature in the kitchen was not unreasonably hot and the claimant’s
and xy’s evidence was unreliable and inconsistent in this regard.”
20. Those findings of fact having been made, the
Applicant’s assertions that there was a wrongful conclusion by the
Tribunal that he had made no complaint about working conditions is neither here
nor there. The Tribunal concluded
that the balance of probabilities that the working conditions remained
reasonable in the kitchen while ventilation system was out of service. It had evidence upon which it could
reasonably reach that conclusion. I
see no ground of law which arises here to justify the grant of leave and the
case to be argued in the Royal Court.
21. The Applicant asserts that the Tribunal gave
undue weight to the evidence of Mr Gomes.
That does not amount to a point of law to be raised on appeal. It is a matter for the Tribunal to
determine the weight which it gives to the evidence which it hears, and the
Tribunal’s judgment is a model of clarity in that respect.
22. Finally, the Applicant asserts that there was a
similar problem with the Respondent in relation to the lack of a time recording
system in 2012. It is not clear
that that was ever the subject of argument before the Tribunal, but in any
event it seems to me that it does not raise a question of law on appeal.
23. For these reasons, the application for leave to
appeal is refused.
Authorities
Employment (Jersey) Law 2003.
Vision Events (UK) Limited v
Patterson UKEAT/015/13
Grove
v Briscoe and Baker [2005] JLR 348