Jersey Employment and Discrimination Tribunal

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1 Jersey Employment and Discrimination Tribunal Employment (Jersey) Law 2003 NOTIFICATION OF THE TRIBUNAL S JUDGMENT Case Number: /13 Applicant: Mr Mark Wood Respondent: JT (Jersey) Limited Date 27 th January 2017 Before: Mrs Nicola Santos-Costa, Chairman; Mr Mike Baudains and Mrs Susan A Cuming, Panel Members. Representation: The Applicant was represented by Advocate Heidi Heath, HJH Law The Respondent was represented by Advocate Edward Drummond, Bedell Cristin 1

2 THE TRIBUNAL S JUDGMENT INTERIM HEARING THE DECISION 1. That the matter of the amount of compensation to be awarded to the Applicant in respect of his unfair dismissal by the Respondent shall be adjourned sine die by the Tribunal in order that the Applicant may commence proceedings in the Royal Court that the Respondent breached the terms of his contract of employment by failing to follow its redundancy policy or otherwise decides to abandon such application. THE REASONS 2. The Tribunal was convened in order to hear the Applicant s submission that it was necessary for the Tribunal to consider whether there was in existence an underlying redundancy situation (as derived from Article 2(1) of the Employment (Jersey) Law 2003 ( the Law )) at the time of his dismissal in order for the Tribunal to be able to calculate the amount of compensation that it is just and equitable to award to the Applicant pursuant to Article 77F of the Law in respect of his unfair dismissal on capability grounds. 3. This decision should be read in conjunction with the Tribunal s decision at first instance, reference: JEDT 200/13, the Royal Court s decision in respect of the appeal made against that decision by the Applicant, reference: [2016] JRC 089B and the decision of the Jersey Court of Appeal in respect of the appeal made against that decision by the Respondent, reference: [2016] JCA 183. In short the Court of Appeal held that the Applicant had been dismissed by reason of his capability pursuant to Article 64(2)(a) of the Law 2

3 and that such dismissal had been unfair. The Court of Appeal referred the case back to the Tribunal in order that the amount of compensation to be awarded to the Applicant in respect of such unfair dismissal could be calculated. 4. Article 77(2) of the Law states that the Tribunal shall make an award of compensation for unfair dismissal in accordance with the provisions of Article 77F. 5. Article 77F requires the Tribunal to calculate its awards of compensation in accordance with the Employment (Awards) (Jersey) Order 2009 ( the Awards Order ) and states that such awards may be reduced by such amount as the Tribunal considers just and equitable having regard to any of the circumstances described in paragraphs (4), (5), (7), (8), (9) and (10) as set out below: 77F COMPENSATION AWARDS (4) The Tribunal finds the complainant has either (a) (b) unreasonably refused an offer by the employer which, if accepted, would have had the effect of reinstating the complainant in the complainant s former employment; or accepted such offer as is described in sub-paragraph (a) in circumstances where the Tribunal may reasonably conclude that at the time the offer was accepted the complainant intended to terminate the employment as soon as reasonably practicable. (5) The Tribunal considers that any conduct of the complainant before dismissal (or, where the dismissal was with notice, before the notice was given) that contributed directly to the dismissal was such that reduction of the award is just and equitable. (6) For the purposes of paragraph (5), the Tribunal may take into account conduct committed whilst in employment which came to light after notice was given or the act of dismissal occurred. (7) The complainant has agreed to receive a payment by way of settlement of the complaint (whether or not the dismissal is related to redundancy). (8) The complainant has been awarded a redundancy payment under any enactment or is entitled to a redundancy payment under his or her contract of employment. 3

4 (9) The complainant has refused an offer by the employer made before commencement of proceedings before the Tribunal for an amount equal to the maximum award that the Tribunal could award in respect of the complainant under Article 77(2) or Article 77E(3)(a) (as the case requires). (10) Any circumstances that the Tribunal considers would be just and equitable to take into account. 6. The Respondent s representative informed the Tribunal that in due course the Respondent would seek to reduce the amount of the Applicant s award of compensation by relying on the grounds set out in Articles 77F(9) and (10), namely on the basis of an offer of settlement that it had previously made to the Applicant of his claims and that there are circumstances [that] would be just and equitable into account. 7. The Applicant asked the Tribunal to consider the applicability of the words in Article 77F(8) in relation to the amount of the award of compensation to be made to him. It was acknowledged by the parties that the Applicant is not eligible for a redundancy payment under any enactment and that the Tribunal should only concern itself with the second part of that Article which requires the Tribunal to have regard to whether the Applicant is entitled to a redundancy payment under [his] contract of employment when considering a reduction of his award. 8. The Applicant s representative submitted to the Tribunal that this part of Article 77F(8) was relevant to her client s claim because she believed that the Court of Appeal in its judgment had referred to the possibility that redundancy was an underlying reason for the Applicant s dismissal which if the Tribunal were to make a finding that on the evidence this was true, and for the purposes of Article 77F(8) of the Law the Applicant was entitled to a redundancy payment under his contract of employment, this would greatly assist the claim that the Applicant intended to bring in the Royal Court that the Respondent breached the terms of his contract of employment by failing to apply its redundancy policy to him when it terminated the Applicant s employment. 4

5 9. The Applicant s representative assured the Tribunal that the Applicant did not intend to commence proceedings in the Tribunal in respect of such alleged breach of contract. 10. The Applicant s representative agreed that the Respondent had made an early offer to settle the Applicant s claims against it but stated that such offer of settlement had been a mixed offer of settlement in that it referred to the Applicant accepting such offer in full and final settlement of all claims against the Respondent. The Applicant s representative submitted that such mixed offer covered claims by the Applicant for compensation for unfair dismissal and damages for breach of contract in respect of the Respondent s alleged failure to follow its redundancy policy and it is was therefore also necessary for the Tribunal to consider if there was an underlying redundancy situation in order to decide if Article 77F(9) of the Law was to be a valid ground of reduction in this case. 11. The Applicant s representative suggested that there was an uneasy overlap between the jurisdictions of the Tribunal and the Royal Court in this case because in order for the Tribunal to reduce the Applicant s Award of compensation on the ground that he was also entitled to a redundancy payment under his contract of employment that entitlement must be established by reference to an underlying redundancy situation. However the existence of an underlying redundancy situation was also relevant to the Royal Court finding a breach of his contract of employment. The representative urged the Tribunal to be bold and to agree to consider whether there was an underlying redundancy situation in this case as that would not only assist the Royal Court in its deliberations but also allow the issue of compensation for the Applicant s unfair dismissal to be considered without further delay. 5

6 12. The Respondent s representative informed the Tribunal that the Respondent would not seek to rely upon any potential entitlement to a redundancy payment by the Applicant as a reason to reduce the Award 13. The Respondent s representative reminded the Tribunal that no claim had been made for a redundancy payment by the Applicant to either the Tribunal or the Royal Court to date and therefore it was not possible to know the form of that claim. He added that the Tribunal must not lose sight of its role which was ultimately to decide the amount of compensation payable in this case which concerned an unfair dismissal on the ground of capability. 14. The Respondent s representative agreed that the Respondent had made a mixed offer of settlement but said that it was willing to argue the impact of that global offer as a ground of reduction at the compensation hearing in due course. The representative urged the Tribunal to complete the issue of the award of compensation without delay and pointed out that the Court of Appeal had said that it was unnecessary and inappropriate to look at any underlying redundancy situation which was always beside the point. THE TRIBUNAL S CONCLUSION 15. The Applicant has asked the Tribunal to decide if it is necessary to consider whether there was in existence an underlying redundancy situation at the time of the Applicant s dismissal in order for it to calculate the amount of compensation that should be awarded to the Applicant in respect of his unfair dismissal under the Law. This is an unusual case because the Applicant has suggested to the Tribunal a means of reducing the award of compensation due to him in respect of his unfair dismissal based on his alleged entitlement to a redundancy payment under the terms of his contract of employment. The Respondent however has said that it only wishes the Tribunal to consider two grounds of reduction in this case based 6

7 firstly on an offer of settlement it has made and secondly that there are circumstances in this case which it would be just and equitable for the Tribunal to take into account when considering a reduction. 16. As a starting point the Tribunal would remind the parties that an employee who has been found to be unfairly dismissed is prima facie entitled to receive 100% of the compensation calculated as due to him under the Awards Order. However the legislature has given the Tribunal a discretion to reduce that 100% award in certain circumstances (set out in Article 77F) where the Tribunal considers it to be just and equitable to do so. It should be noted that the discretion to reduce is given to the Tribunal having regard to any of the circumstances listed in Article 77F(3) [emphasis added]. This is therefore a free ranging discretion and the Tribunal is not limited to having to apply certain circumstances to certain types of dismissals or to follow the submissions of the parties. In addition the amount of such reduction, if any, is entirely within the discretion of the Tribunal panel members hearing the case and, as is the nature of these things, will vary from case to case depending on the facts before the Tribunal and the opinions of the panel members. The Tribunal will accept submissions from the parties regarding the circumstances which they consider to be relevant to the issue of reduction in a case. It will also make enquiries of its own if it needs to do so based on the evidence it has heard in the foregoing unfair dismissal hearing. However the decision as to which of the circumstances set out in Article 77F applies to a particular case and the amount of any resulting reduction remains with the Tribunal. 17. The Tribunal notes that in his Form JET1 the Applicant pleaded his belief that the reason he was dismissed was because of redundancy and not in fact his capability to perform the work that he was employed to do. It is also noted that the Applicant also made a claim for a redundancy payment under the Law but no such payment was made to him. The Tribunal notes that despite the Applicant s insistence that the reason for his dismissal was 7

8 redundancy, the Tribunal at first instance found that he was dismissed by reason of capability and this was upheld by the Court of Appeal. The Tribunal notes that the Applicant has stated that he does not intend to make a claim for breach of the redundancy provisions in his contract of employment to the Tribunal and that no such claim has been made to the Royal Court to date. 18. In the usual course of awarding compensation in unfair dismissal cases the Tribunal considers whether there are any relevant circumstances (as listed in Article 77F) to make it consider a reduction based on the evidence before it. Therefore ordinarily the question of redundancy as a circumstance listed under Article 77F(3) would not be considered relevant in this case as no redundancy payment has been made under the Law and the reason for the Applicant s dismissal was not found to be that he was redundant. 19. However the Tribunal is now on notice that the Applicant intends to commence proceedings in the Royal Court that the Respondent breached his contract of employment and he is entitled to damages equal to the amount of redundancy pay that he should have received under his contract if there had been no breach. If the Applicant is successful in this claim he will presumably be entitled to a redundancy payment under [his] contract of employment for the purposes of Article 77F(8) and the issue of reduction on the basis of this circumstance becomes relevant to the Tribunal. It may also be relevant to any consideration of reduction under Article 77F(9) of the Law. 20. The Applicant s representative urged the Tribunal to be bold and to consider if there was an underlying redundancy situation for the purposes of satisfying Articles 77F(8) and (9), such decision also having the effect of assisting the Royal Court in its deliberations in relation to the alleged breach of contract thus saving time and money for all concerned as the Royal Court cannot make a decision regarding the alleged breach without 8

9 first deciding if there was in fact an underlying redundancy situation in this case. 21. The Tribunal would remind the Applicant s representative that it is an inferior court to the Royal Court and it would be presumptuous and discourteous of the Tribunal to make a finding on a matter which it is on notice is of relevance to a case going before the Royal Court. The Tribunal would also point out that even if it were to make a decision on whether an underlying redundancy situation existed in this case not only would the Royal Court not consider itself bound to follow the Tribunal s finding but such decision by the Tribunal would most likely be appealed by the party that such decision went against which would only add to the time and expense already spent on this case. CONCLUSION 22. As stated at the outset the Tribunal has been asked to decide if it is necessary for it to consider whether an underlying redundancy situation existed at the time of the Applicant s dismissal in order for it to make its award of compensation. The answer is yes because the Tribunal is on notice that the Applicant intends to make an application to the Royal Court that the Respondent breached the Applicant s contract of employment by failing to apply its redundancy policy at a time when an underlying redundancy situation existed in its business. Therefore any resultant damages from such proposed action for breach of contract may amount to a redundancy payment which is potential ground of reduction of unfair dismissal compensation under Article 77F(8) and a circumstance that the Tribunal should take into account when making its decision regarding the size of the award. The issue may also be relevant to the question of reduction in respect of the global offer of settlement made by the Respondent at the commencement of proceedings and the Tribunal will take submissions on this point at the compensation hearing in due course. For 9

10 the reasons stated above it would be inappropriate for the Tribunal as an inferior court to make a decision on this issue when it is on notice that it is going to be decided by the Royal Court. The Tribunal will of course refer to the Royal Court s judgment upon the alleged breach of the Applicant s contract of employment in its deliberations regarding the amount of compensation to be awarded to the Applicant in respect of his unfair dismissal in due course. 23. Therefore the Tribunal has no option but to adjourn these proceedings sine die pending receipt of either the Royal Court s decision in the proposed breach of contract claim or notification by the Applicant that he does not intend to pursue this claim before the Royal Court. Signed: Mrs Nicola Santos-Costa Dated: 6 February 2017 Judgment and Reasons sent to the parties on 6 February 2017 For the Tribunal Office Tribunal Note: The Chairman has noted that the Applicant was dismissed on the 15 th November 2013 and lodged his Form JET1 in the Tribunal on the 19 th December 2013 thus commencing these proceedings. It is fair to say that the parties have been locked in a bitter dispute over the issues at the centre of the Applicant s claim resulting in much time being spent on this case by each side and this takes its toll on the parties in ways other than just incurring expense. The Chairman is aware that the Applicant still has many years in which to decide whether to commence proceedings in the Royal Court in respect of the alleged breach of his contract of employment by the Respondent but the Chairman would urge the Applicant to consider this matter sooner rather than later in order that this issue can be resolved and his dismissal from his former employment be put behind him. 10

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