Jersey Employment and Discrimination Tribunal

Transcription

1 Jersey Employment and Discrimination Tribunal Employment (Jersey) Law 2003 NOTIFICATION OF THE TRIBUNAL S JUDGMENT Applicant: Mrs Suzanne MacLagan Respondent: States Employment Board Date: 16 March 2017 Before: Mrs Hilary Griffin, Deputy Chairman, sitting alone Representation: Applicant: In person Respondent Miss T Family, Law Officer s Department JEDT Judgment 1

2 THE TRIBUNAL S JUDGMENT THE DECISION The Applicant s complaint of wrongful dismissal is struck out under Article 33 of the Employment and Discrimination Tribunal (Procedure) Order THE REASONS 1. On 17 November 2016, the Applicant filed a complaint of wrongful dismissal with the Tribunal. The Applicant claims that she is entitled to 12 weeks' notice under the terms of her contract. 2. This is the second case which the Applicant has brought against the Respondent arising out of the same facts. A full hearing was held in February 2016 at which the Tribunal found that the Respondent constructively dismissed the Applicant ("First Claim"). The Applicant submits that further evidence has come to light since the First Claim and that this prompted her to issue her current claim of wrongful dismissal. 3. The Respondent applied to the Tribunal to strike out the Applicant s complaint of wrongful dismissal on the grounds that it has no reasonable prospects of success. The Respondent argued that the Applicant filed and then withdrew the same complaint during the administrative stages of the First Claim. This Interim Hearing was convened to consider the Respondent s application to strike out. I heard no evidence as to the substantive merits of the case and the parties addressed me only in relation to the questions of: a) whether the First Claim included a complaint of wrongful dismissal; and b) if the First Claim did include a wrongful dismissal complaint: i. whether the Applicant withdrew that complaint; and JEDT Judgment 2

3 ii. whether the circumstances of that withdrawal were such as to allow the Applicant to re-submit the complaint at a later date. BACKGROUND 4. On 8 June 2015, the Applicant filed a JET1 form at the Tribunal and in so doing, commenced the First Claim. At that time, the Applicant was legally represented by an English qualified solicitor ("Legal Adviser"). 5. The JET1 application forms are split into separate sections for ease of completion. In the First Claim, the Applicant s main complaint was that of constructive unfair dismissal and, accordingly, the Applicant completed section 5.1 of her JET1 form as follows: The Applicant was constructively dismissed as a direct result of bullying, harassment and a total lack of action on behalf of the Employer which led the Applicant to feel the only action she could take was to resign. The Applicant resigned without notice. The Applicant will state that she experienced a fundamental breach of her contract of employment which left her with no option than to resign " [emphasis added] 6. Save for the reference to the Applicant s resignation without notice as contained in Section 5.1 of the JET1, no further reference was made in the JET1 to unpaid notice pay. The Applicant did not quantify her losses and did not tick notice pay on the checklist which, although not part of the JET1, is attached to the back of the JET1 form. 7. I summarise below the key dates and subsequent relevant events: a) On 28 October 2015, the parties attended a Case Management Meeting ( CMM ) before the Chairman of the Tribunal. JEDT Judgment 3 The Applicant was represented by the Legal Adviser. Contrary to the Applicant s evidence, (having checked the Chairman s notes of the CMM), it is clear to me that the Chairman did identify unpaid notice pay (wrongful dismissal) as one of the Applicant s claims at the start of the CMM. However, there was no

4 further discussion regarding this head of claim during the CMM. The Chairman also noted that the Applicant s claim for unpaid holiday pay had been withdrawn; b) On 29 October 2015, the Legal Advisor sent an to the Tribunal advising that the claim for breach of contract and pension payments can fall away I understand that these have been rectified. The Registrar responded to the Legal Advisor stating that she would place this on the file and also pass this information to the Chairman. c) On 30 October 2015, the Tribunal sent the Chairman s Directions for Hearing to the parties ( First Directions ). contained the following paragraph: The accompanying letter Your attention is drawn to paragraph 4 of the Directions which the Chairman has extended from the discussion at the Case Management Meeting. Direction 2 of the First Directions stated: The issues to be decided at the hearing are limited to the following complaints: (a) That the Applicant believes that she was constructively dismissed (b) That the Respondent has breached the terms of the Applicant s contract of employment by failing to pay her a sum of money in respect of the period of notice specified in that contract upon the termination of her employment; (c) That the Respondent has breached the terms of the Applicant s contract of employment by incorrectly calculating the amount of pension benefits accrued to the applicant during the period of her employment Direction 4 of the First Directions stated: The Applicant is required to send Further and Better Particulars of the claims set out in paragraphs 2(a) and (b) above to the Respondent by 4pm on the 11 th November 2015 together with a Schedule setting out details of all income received by the Applicant (which shall include the value of any Social JEDT Judgment 4

5 Security benefits received) during the period of notice claimed by the Applicant. d) The Legal Adviser replied speedily to this and to the Directions as follows: The directions pertaining to paragraph 4 don t seem quite correct. The Respondent asked for and the Chair agreed FandBP s [further and better particulars/more information] about the pension contributions only (c) a claim which has now been dropped. To give FandBP s regarding the constructive dismissal would be premature. e) The Registrar responded by ( Explanatory ) to the Legal Adviser as follows: The Chairman has asked me to point out to you that the requirement for Further and Better Particulars of the claim should have referred to the claims in paragraphs 2(b) and (c). Paragraph 2(c) was discussed at the meeting and paragraph 2(b) was included because the claim for notice pay was not quantified in form JET1. As this is a contractual claim the Applicant is required to mitigate her losses, hence the Direction to prepare a Schedule of Loss. However the Tribunal understands that your client is not in fact progressing with either of these claims now. f) The Legal Adviser did not respond to the Explanatory and a short time after the above exchange, the Applicant parted company with the Legal Adviser. The Applicant then requested that the Tribunal provide amended Directions to take into account her new status as a litigant in person. The Tribunal issued such amended Directions ( Amended Directions ) on 6 November In error, Directions 2 and 4 as contained in the First Directions remained in the Amended Directions. This caused the Applicant some confusion. JEDT Judgment 5

6 g) On 7 November 2015 the Applicant sent an to the Tribunal regarding the instruction that she provide more information on the two withdrawn claims: Direction 4 I do not understand this Direction. I do not recall discussion of this from the Case Management Meeting h) On the same date, the Applicant also sent an to the Legal Adviser: I have received new directions from the Tribunal (attached). The Complaints 2b and 2c are still showing. Did you say you have notified that pension was no longer applicable and had someone been back to say that notice period was not applicable? Do I need to inform the Registrar of these communications and do you have copies of these communications? What is meant by Direction 4? You had indicated to me that this would be removed as two layers were no longer involved i) The Legal Adviser responded to the Applicant s on 9 November 2015 and forwarded the Explanatory to the Applicant. Her to the Applicant stated as follows: Ignore paragraph 4 as per my moments ago 2b and 2c have fallen away so paragraph 4 is null and void. j) On 10 November 2015 the Applicant sent another to the Tribunal which contained the following instruction: claims 2b and 2c [for wrongful dismissal and pension payments] have subsequently fallen away k) On 11 December 2015 the parties attended a CMM which was called at short notice to deal with a disclosure issue. At the CMM, the Deputy Chairman asked the Applicant directly whether she was pursuing the JEDT Judgment 6

7 complaints against the Respondent for wrongful dismissal and pension contributions. The Applicant confirmed that she was no longer pursuing either such complaint. This was reflected in the subsequent Directions ( Second Directions ): The Applicant has withdrawn her claims for wrongful dismissal and unpaid pension contributions. l) The Applicant did not challenge the contents of the Second Directions. m) The hearing for the First Claim took place on 1 and 2 February At the start of that hearing the Applicant again confirmed that she was not pursuing a complaint of wrongful dismissal. n) The Tribunal sent the decision in the First Claim to the parties on 17 March o) On 13 May 2016, the Applicant wrote to the Tribunal regarding unpaid notice pay: it has just come to my understanding that I could have claimed for a sum of money in respect of notice period and that this should have formed part of my claim. When I took my case over as a litigant in person there had been confusion about the issues raised under the original Direction 2 and 4 of the Tribunal Directions dated 28 October When I received the amended Directions dated 6 November 2015 I ed the Tribunal on 7 November 2015 expressing confusion about Direction 4 and clarification over my responsibilities. I ed again on 10 November 2015 to provide to the Tribunal forwarded correspondence that confirmed that 2b and 2[c] of the original Directions had been dropped when my case was being managed by legal representative JEDT Judgment 7

8 As a litigant in person I never clearly understood what happened under the matter of notice period and why it was dropped and still don't. At the Tribunal Hearing when asked if I was claiming to notice period I was extremely nervous sitting about to start two days of Hearing and did not feel confident to ask the implications of doing so or not. My belief as I sat there was that I should just be placing my case the constructive unfair dismissal to the panel as this was all that the amended directions reflected. May I ask the Tribunal whether a claim for notice period may be considered under the existing proceedings?" p) On 17 May 2016, the Tribunal notified the Applicant that proceedings in the First Claim had now completed. CONCLUSION Did the First Claim include a wrongful dismissal complaint? 8. I first considered the Applicant s submission that the JET1 in the First Claim did not include a claim for wrongful dismissal. When considering this point, I noted in particular that: a) The Applicant s principal complaint was that of constructive dismissal, ie the Applicant resigned in response to a repudiatory breach of contract by the Respondent. In the vast majority of such cases, an applicant seeks to recover notice pay through a claim for wrongful dismissal. b) In legal terms, a JET1 is a pleading which sets out the basis for an applicant s case. In this case, the JET1 clearly and unambiguously stated that the Applicant had resigned without notice. c) Where there is any ambiguity in a pleading (whether that pleading is on behalf of an applicant or a respondent), a Tribunal Chair will always interpret the pleading in favour of the individual who drafted it. It was therefore entirely reasonable for the Chairman to interpret the Applicant s JET1 in her favour by including a wrongful dismissal complaint. JEDT Judgment 8

9 d) At no point did either the Applicant or the Legal Advisor notify the Tribunal that the Applicant had not filed a complaint of wrongful dismissal. The language used in correspondence was that the complaint had fallen away. Such language suggests that there was previously a complaint regarding notice pay but the complaint had been rectified and was therefore no longer being pursued by the Applicant. e) At no stage did the Respondent complain about the inclusion of a wrongful dismissal complaint; one would expect the Respondent to object had the Chairman unilaterally included a complaint which was not included in the JET1. f) In her letter of 13 May 2016 to the Tribunal, the Applicant expressed confusion as to why the wrongful dismissal complaint had been dropped. Her letter therefore impliedly acknowledged the existence of the wrongful dismissal complaint in the First Claim. 9. In view of the above, I am satisfied that the JET1 in the First Claim did include a complaint of wrongful dismissal and that the Chairman was correct to admit it as such. Did the Applicant withdraw the wrongful dismissal complaint? 10. I next considered whether the Applicant withdrew her complaint of wrongful dismissal. 11. There is no doubt that after the CMM on 28 October 2015 there was some confusion at the Tribunal as to which complaints the Applicant was pursuing. However, notwithstanding this confusion, the Applicant and the Legal Advisor were consistent (over a prolonged period) in stating that the Applicant s claim for notice pay had fallen away. 12. At the Interim Hearing the Applicant relied heavily upon her status as a litigant in person and also explained that she was very anxious at the time of the First Claim. I am in no doubt that the Applicant was suffering from anxiety and JEDT Judgment 9

10 feeling under pressure throughout this period. However, she was initially represented by the Legal Advisor and was under no pressure or duress at any time to withdraw her claim. Indeed, while the administrative confusion at the Tribunal may have been frustrating for her, it did serve to provide the Applicant with several opportunities to change her mind with regards to the withdrawal of the claim for wrongful dismissal (and thereby surrendering her claim for notice pay). In this regard, she was specifically asked at the CMM on 11 December 2015 whether she was still pursuing the a complaint for notice pay; the Applicant clearly stated that she was no longer pursing that claim and this was reflected in the Second Directions. The Applicant does not dispute this. 13. Furthermore, the Applicant s letter to the Tribunal of 13 May 2016 confirmed that the Applicant understood that she had withdrawn the notice pay claim. 14. Having considered the events carefully, I am satisfied that the Legal Advisor withdrew the Applicant s complaint of wrongful dismissal in her to the Tribunal on 29 October The Registrar s response to the Legal Advisor that the withdrawal would be placed on the file was sufficient to confirm that this withdrawal had been formally recorded. In my view, the subsequent administrative confusion did not undo that withdrawal; in any event, the Applicant re-confirmed her withdrawal of her complaint of wrongful dismissal at the CMM on 11 December 2015 and this was recorded appropriately in the Second Directions. The Applicant did not challenge the contents of the Second Directions. Either way, I am satisfied on the facts that the Applicant withdrew her complaint of unpaid notice pay/wrongful dismissal. May the Applicant submit a new complaint of wrongful dismissal? 15. The Respondent relied upon the provisions of Article 33 of the Employment and Discrimination Tribunal (Procedure) Order 2016 ( Procedure Order ) to argue that the Applicant may not issue a new complaint of wrongful dismissal. Article 33(2) of the Procedure Order states: JEDT Judgment 10

11 Where a claim, or part of it, has been withdrawn, the claimant may not commence a further claim raising the same or substantially the same complaint unless at the time of withdrawal the complainant reserved the right to bring a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so. 16. The Procedure Order came into force on 1 April 2016 ie. after the completion of the First Claim but before the commencement of the current claim. The Respondent submits that, notwithstanding the fact that the Procedure Order was not in force at the time of the withdrawal of claim, Article 33 applies because: a) the Procedure Order was in force when the Applicant filed the JET1 in this action; and b) Article 33 (and the Procedure Order more generally) deals with procedural matters rather than with the vested rights of individuals. 17. With regards to point (b) above, the Respondent drew my attention to the House of Lords case of Blyth v Blyth [1966] A.C. 643 in which Lord Denning stated: The rule that an Act of Parliament is not to be given retrospective effect only applies to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure, or the admissibility of evidence, or the effect which the courts give to evidence. 18. In the more recent House of Lords case of Wilson & Others v Secretary of State for Trade and Industry [2003] UKHL 40, Lord Scott addressed a similar point. Having noted that changes in matters of pure procedure have been treated differently [to matters relating to vested rights] he went on to quote with approval from the case of Wright v Hale (1860) 6 H&N 227, 232: where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act. JEDT Judgment 11

12 19. Lord Scott then suggested a test to apply in deciding whether or not legislation has retrospective effect: Would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be so unfair that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions. 20. Having carefully considered the Procedure Order in light of the above authorities, I am satisfied that the Procedure Order applies to all cases which are filed after the date on which such order came into force, ie 1 April The fact that the First Claim occurred before the Procedure Order came into force is not relevant for the purposes of this complaint. Furthermore, applying the Procedure Order to this set of facts does not produce an outcome so unfair as to suggest that the States Assembly intended that the Procedure Order be interpreted differently. 21. Having established that Article 33 of the Procedure Order applies and having considered all the evidence, I made the following observations: a) at the crucial time during the First Claim, the Applicant had the benefit of legal advice; b) at no point during the First Claim did either the Applicant or the Legal Advisor seek to reserve the Applicant s position in the event that she might want to re-submit her wrongful dismissal complaint at a future date; the withdrawal was unequivocal and without conditions attached to it and there was no suggestion that the Applicant may wish to issue fresh proceedings at a later date; and c) although the Procedure Order was not in force at the time of the First Claim, it is worth noting that the requirement that an applicant must reserve their right to bring fresh proceedings at the time of the withdrawal JEDT Judgment 12

13 reflects the position as set out in the case authorities in this area [see Sajid v Sussex Muslim Society [2001] EWCA Civ 1684]. 22. In view of the above, I conclude that the Applicant did not comply with the requirements as set out in Article 33 of the Procedure Order. The Applicant s submission that additional evidence has subsequently come to light does not impact this conclusion. proceed. Consequently, the Applicant s complaint may not 23. It is worth noting that had I concluded that Article 33 did not apply in this case, I would nonetheless have reached the same conclusion by applying the doctrine of chose jugée (res judicata) ( Doctrine ). There are three categories of estoppel which fall within the Doctrine: a) cause of action estoppel, which prevents a party pursuing a cause of action that has been dealt with in earlier proceedings involving the same parties; b) issue estoppel, which prevents a party reopening an issue which has been decided in earlier proceedings involving the same parties; and c) the rule in Henderson v Henderson (which is not relevant in this case). 24. In order for the Doctrine to apply, a judicial decision (as opposed to an administrative act) is required. In Barber v Staffordshire County Council [1996] I.C.R 379, the Court of Appeal held that the formal dismissal of a claim upon the withdrawal by an applicant constituted a decision for the purposes of the Doctrine. In this case, the Directions issued after the CMM on 11 December 2015 amounted to a decision as envisaged in that case. 25. The Applicant s complaint therefore fails under both Article 33 and under the Doctrine. JEDT Judgment 13

14 26. The Applicant s complaint of wrongful dismissal is HEREBY STRUCK OUT from the Register of Complaints. Signed: Mrs H G Griffin, Deputy Chairman Dated: 30 March 2017 Judgment and Reasons sent to the parties on 30 March 2017 For the Tribunal Office JEDT Judgment 14