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 Any award, (subject to the right of appeal to the Royal Court as set out in the Law) is legally binding and is the final decision of the Tribunal. Each party, if applicable, is responsible for establishing their liabilities with regard to Social Security and Income Tax payments. Applicant: Mr Gerald Loane Respondent: Linal Developments Ltd Date: 8 February 2017 Before: Advocate Mike Preston, Deputy Chairman Mrs Anne Southern and Mr Mark Thérin, Panel Members Representation: The Applicant: The Respondent: In person Mr Nigel Linder

2 THE TRIBUNAL S JUDGMENT BACKGROUND 1. The Tribunal was convened to consider the Applicant s complaints as follows: - a. Constructive Unfair dismissal the Applicant claimed 26 weeks compensation as a consequence of his dismissal, which was he claimed was unfair. The Respondent countered that the Applicant had resigned. b. Wrongful dismissal the Applicant claimed that he was entitled to 8 weeks notice pursuant to his contract of employment. The Respondent countered that there was no such entitlement as he had resigned. c. Holiday pay the Applicant claimed 4 days pay being his entitlement for The Respondent accepted that it was responsible to pay an amount but disputed the Applicant s calculation of his weekly pay. 2. In addition, the Tribunal was convened to consider the Respondent s Counterclaim, which was as follows: - a. Expenses incurred by the Respondent in rectifying work carried out by the Applicant in the sum of 8, This claim was denied by the Applicant. b. The sum of being the cost of a skip ordered by the Applicant for his personal use but charged to the Respondent. This claim was denied. c. The cost of various miscellaneous items not returned to the Respondent when the Applicant left his employment.

3 THE EVIDENCE 3. The Tribunal heard evidence from the Applicant on his own behalf and from Mr Nigel Linder, Mr Rudi Kocur and Mr Patrick O Keefe on behalf of the Respondent. The following is a summary of the evidence that was before the Tribunal. 4. The Applicant claimed that he had been employed by the Respondent from 5 December 2008 until he had been forced to resign on 25 March His claim was therefore one of constructive dismissal. The Respondent was a small building firm employing 7 people and the Applicant had been employed as a labourer, painter and electrician depending upon the work that was available at any given time. 5. It was the Applicant s case that he had taken advice from LWR Law in March 2016 and instructed that firm to write to the Respondent in order to make a claim for unpaid wages amounting to 43,893. It was claimed that the Applicant had been employed under a contract by which the Respondent was obliged to provide him with a minimum of 39.5 hours work each week. As it had failed to do that for a number of years the Applicant demanded payment of what he said was due to him. A letter dated 15 March 2016 (the Letter ) was duly sent to the Respondent by LWR Law. 6. The Respondent denied the claim made in the Letter and instructed Law At Work to respond on its behalf. It is understood that the claim for unpaid wages may form the basis of a separate claim before the Royal Court. The substance of the claim was not a matter before the Tribunal. However, the Applicant complained that the fact that his lawyer had written to the Respondent had been revealed by Mr Linder to other employees and that this amounted to a repudiatory breach of contract. The other employees had confronted the Applicant about the Letter and what he was doing towards Mr Linder. The Applicant said that his made him feel awkward

4 and out of place. He regarded the behaviour of his colleagues as bullying in nature although no separate complaint was made in that regard. 7. Following receipt of the Letter, the Applicant said that Mr Linder had begun to treat him poorly. He claimed that he was verbally abused and that Mr Linder ignored him when he wanted to speak about an ongoing job. The behaviour of Mr Linder made the Applicant feel downtrodden and isolated. He gave evidence about a dispute over obtaining paint and a roller tray for the job at which the Applicant was working. In addition, Mr Linder docked his wages claiming that the Applicant was lying about the hours that he had worked. This was the last straw and the Applicant sent an to Mr Linder dated 25 March 2016 in which he stated that Mr Linder s behaviour had been unprofessional and unacceptable and left him with no choice but to hand in his notice. 8. In fact, rather than give notice, the Applicant resigned with immediate effect and issued a JET1 dated 21 April In response, Mr Linder wrote to the Applicant by letter dated 30 March In this letter Mr Linder questioned what the Applicant meant by giving notice in these terms and stated that he was reluctant to accept his resignation, inviting the Applicant to reflect on his position over a short cooling off period. If the Applicant was minded to reconsider his position, then the Respondent was willing to discuss the matter but, if not, then it would expect the Applicant to work his notice. 10. The Applicant did not wish to reconsider and claimed 26 weeks compensation for unfair constructive dismissal, damages for wrongful dismissal, being 8 weeks notice, and 4 days outstanding holiday pay. On this latter point, the Respondent accepted that the Applicant was due 4 days holiday pay but disputed the rate that was claimed. The Applicant

5 claimed that he was paid 632 per week, whilst the Respondent countered that the weekly wage earned by the Applicant varied and so an average figure would need to be calculated. 11. In response to the claim for unfair dismissal, it was the Respondent s position that there had been no breach of contract, repudiatory or otherwise, and the Applicant had simply resigned. As a consequence of having resigned the Applicant had not been wrongfully dismissed and was not entitled to notice pay. 12. It was Mr Linder s evidence that around Christmas 2015 he had deducted some holiday pay from the Applicant s wages as the Applicant had taken too many holidays. This was said to have upset the Applicant who, in the opinion of Mr Linder, had resolved to leave and to claim compensation, which he would then use in furtherance of his own business plans. In addition, Mr Linder claimed that the Applicant had carried out a particular piece of electrical work to a very poor standard and had decided to leave rather than be found out. The Counterclaim was in large part based on works that Mr Linder claimed were necessary to remedy this poor work but included a claim for the cost of the hire of a skip and certain other miscellaneous expenses. The Counterclaim was firmly denied by the Applicant. THE LAW 13. Article 61 of the Law states that an employee has the right not to be unfairly dismissed. Article 62(1)(c) of the Law provides that an employee is dismissed if, inter alia, the employee terminates the contract under which he or she is employed (with or without notice) in circumstances in which the employee is entitled to terminate it without notice by reason of

6 the employer s conduct. This type of situation is a constructive dismissal. 14. In the case of Carratu v United Fashions Limited (110/2011) the Chairman of the Tribunal set out the four basic ingredients which must be present in a case of constructive dismissal: i. The employer must be in breach of a term of the contract of employment; ii. The breach must be fundamental i.e. a repudiatory breach; iii. The resignation must be a response to that breach; and iv. The employee must not delay too long in resigning following the breach. If he or she does then the tribunal may find that the breach has been waived. 15. In addition to the express terms which may be contained in the contract of employment there is a duty upon an employer not to destroy or seriously damage the relationship of trust and confidence that exists between an employer and their employee see for example the case of Mahmud and Malik v Bank of Credit and Commercial International SA [1997] ICR 606. This implied term was considered in Beillard v States Employment Board (JET 67/2001). The Respondent s breach of the implied duty must go to the root of the contract. The test of whether there has been a fundamental breach is an objective one. 16. If there is a dismissal Article 64 of the Law applies. The Tribunal must consider whether the employer acted reasonably in all the circumstances of the case, taking into account its size and the administrative resources available to it. The Tribunal must apply the principles of equity, that is, fairness, and consider the substantial merits of the case. If the Applicant is correct in his arguments, it was the conduct of the employer that led to the resignation. The concept of reasonableness in a constructive unfair

7 dismissal case differs from a classic case where the employee is dismissed and has not resigned. In a constructive unfair dismissal case the issue of reasonableness is reversed and becomes an objective view of the reasonableness of the employer s actions which led to the resignation. 17. In the case of Carratu the Tribunal also noted (at paragraph 23): In the recent case of Amanda Bisson v States Employment Board, above, which involved a complaint that the implied duty of an employer to maintain the trust and confidence of its employees had been breached, the Tribunal applied the English Court of Appeal decision of Tullett Prebon plc & Others v BGC Brokers LP & Others [2011] IRLR 420 and looked to the intention of the employer when acting as it did. Tullett Prebon extended the assessment of a repudiatory breach of contract to include an objective assessment by the Employment Tribunal of the motive or intentions of the employer (the alleged contract breaker) and found that the question of whether there has been a repudiatory breach of the implied duty of trust and confidence is a highly context specific question. The Court of Appeal also confirmed the legal test of a repudiatory breach of this implied term as being, whether, looking at all the circumstances objectively, that it is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract (Eminence Property Developments Limited v Heaney 2010 EWCA Civ 1168). 18. As to Article 77F of the Employment (Jersey) Law 2003, the Tribunal may reduce any award made where it considers that the conduct of an applicant before the dismissal that directly contributed to that dismissal was such that reduction of the award would be just and equitable.

8 19. As to the payment of notice pay this is a claim for wrongful dismissal which unlike the statutory claim for unfair dismissal is a contractual claim. The jurisdiction to entertain such a claim arises under Article 86 of the Employment (Jersey) Law 2003, which provides that proceedings may be brought before the Tribunal in respect of an individual employment dispute which involves a claim in respect of which a Court in Jersey would have jurisdiction. 20. Claims under Article 86 require the Tribunal to make findings of fact and to make decisions on the contractual claim, as was made clear in the English Court of Appeal in Boardman v Nugent Care Society and Another [2013] ICR 927, where it was held that:- a..in considering a claim for wrongful dismissal, the Employment Tribunal was not confined to a reviewing role, and it was not only appropriate, but necessary, for the Tribunal to make its own findings of fact as to whether the claimant had breached her contract in such a way as to justify summary dismissal. This approach has been endorsed by the Royal Court on appeal from a decision of the Tribunal in the case of Voisin v Soares [2014] JRC Such a claim arises when an employer terminates the contract of an employee contrary to the terms of the contract, for example, by failing to give proper notice or by breaching another contractual term such as a failure to follow the contractual disciplinary procedure. 22. The general rule is that either party can end the contract by giving the appropriate notice without cause or reason. When an employee claims to have been constructively dismissed it is for the Tribunal to consider whether what the employer did amounted to a breach of contract. If it

9 did, then the employee s resignation in response was justified and the termination of the contract was a wrongful dismissal. 23. A wrongfully dismissed employee can recover damages for breach of contract. The idea is to put the employee in the position that he or she would have been in if the employer had not broken the contract. Compensation would usually be the loss of earnings for the notice period subject to mitigation. 24. As to the Counterclaim, it is for a claimant (the Respondent in this case) to prove that it is due money from another on the balance of probabilities. It is for the Tribunal to consider the evidence and to determine whether the appropriate standard has been reached in all the circumstances. DECISION 25. The Tribunal carefully considered all of the evidence, both written and oral, in reaching its decision and made the following findings; a. The Tribunal in considering the claim for unfair dismissal, preferred the evidence of the Respondent s witnesses and found as a matter of fact that there was no repudiatory breach of contract by the Respondent. As such, the Applicant resigned from his position. As a consequence, he is not entitled to compensation for unfair dismissal. b. The Tribunal found that in the absence of a breach of contract by the Respondent, which, for the avoidance of any doubt, it found as

10 a matter of fact, the Applicant was not entitled to receive notice pay. c. The Tribunal orders the Respondent to pay in respect of holiday pay. This is based on a weekly wage of calculated on the basis of the wages paid to the Applicant over the 52 weeks preceding his resignation. In reaching this decision the Tribunal makes no finding as to the claim that the Applicant intends to bring before the Royal Court in respect of unpaid wages over the period of his employment. 26. In respect of the Respondent s Counterclaim the Tribunal made the following findings; a. The Tribunal was not satisfied on the balance of probabilities that the Applicant was responsible for the expenses incurred by the Respondent in rectifying the works as claimed. b. The Tribunal was not satisfied that the Applicant was responsible for the payment of the charges relating to the skip as claimed by the Respondent. c. The claim for miscellaneous expenses was not pursued and no order is made. 27. As a consequence of the above findings, the Respondent will pay to the Applicant in respect of holiday pay. The Tribunal makes no other orders. Signed:

11 Advocate Mike Preston, Deputy Chairman Dated: 8 February 2017 Judgment and Reasons sent to the parties on. For the Tribunal Office

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