Employment and Discrimination Tribunal

Transcription

1 Employment and Discrimination Tribunal Case number: [2017]TRE050 Date: 26 th & 27 th September 2017 Before: Mrs Hilary Griffin, Chairman. Mr John Noel & Mrs Marilyn Wetherall, Panel Members. Claimant: Respondent: Miss Karolina Gorazd Quayside Café Limited For the Claimant: For the Respondent Mr Michal Kordyka, assisted by a translator. Mr Stephen Drakes, Director. The Decision The 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 claims. The Claimant s claims are therefore struck out. The Reasons Background 1. On 24 April 2017, the Claimant submitted the following claims to the Employment and Discrimination Tribunal ("Tribunal"): Employment Claims ( Claims ) Constructive unfair dismissal; wrongful dismissal (ie failure to pay notice pay);

2 unpaid wages; (d) unpaid holiday pay; (e) unpaid bank holiday pay; (f) failure to provide uninterrupted rest periods; (g) failure to provide written terms of employment; and (h) failure to provide itemised pay statements. Discrimination Claims ( Discrimination Claims ) Direct race discrimination; Indirect race discrimination; Victimisation; and (d) Harassment. 2. The Claimant withdrew her claim of indirect discrimination in her Further and Better Particulars of Claim, dated 11 July She then withdrew the remainder of the Discrimination Claims at the start of the Hearing. 3. On 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.

3 Preliminary issue 4. During 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. 5. The Tribunal heard that the Claimant arrived in Jersey in June 2014 and started working for a company called Clean 24/7 on 30 June 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. 6. Mr 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. 7. During 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 Clean 24/7. 8. One 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. 9. In 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. 10. In 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

4 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. Conclusion 11. Under 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 illegally. 12. The 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. 13. In 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. 14. The 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. 15. As set out above, the contract was void and unenforceable. Therefore the Claimant: was not an employee of the Respondent; did not enjoy statutory employment rights as set out in the Employment (Jersey) Law 2003; and

5 cannot pursue any breach of contract claim against the Respondent because the contract did not exist in law. 16. On 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. 17. The Claims are therefore STRUCK OUT. Date of Judgment 11 th October, 2017 Authorities Control of Housing and Work (Jersey) Law, 2012.