Amar Alwitry v States Employment Board

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith O.B.E.
Judgment Date08 October 2020
Neutral Citation[2020] JRC 206
Date08 October 2020

[2020] JRC 206

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith O.B.E., Commissioner, sitting alone

Between
Amar Alwitry
Plaintiff
and
States Employment Board
Defendant

Advocate S. Chiddicks for the Plaintiff.

M. Temple Esq., Attorney General for the Defendant.

Authorities

Alwitry v States Employment Board [2019] JRC 014.

States Employment Board v Alwitry [2019] JCA 134.

Jeanne v Jersey Telecoms Limited [2009] JCA 138.

Brakspear v Nedbank Trust (Jersey) Limited [2018] JRC 121.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust and Botham v Ministry of Defence [2012] 2 AC 22.

Damages — reasons for dismissing the application made by the SEB

THE COMMISSIONER:
1

This is an application by the States Employment Board (“the SEB”) which, if successful, will effectively reduce to de minimis sums the claim of Mr Amar Alwitry for damages arising out of the unlawful termination of his contract of employment.

2

To recap, on 20 th July 2018 the Court ordered that it should take first the issue of liability and whether Mr Alwitry's claims in damages came within what is known as the “Johnson's Exclusion Area” and is therefore limited to the contractual notice period, together with what is known as the “Gunton Extension”.

3

On 6 th February, 2019 and following a trial on these preliminary issues, the Court found that ( Alwitry v States Employment Board [2019] JRC 014):

  • (i) The termination of his contract of employment was unlawful (paragraph 343);

  • (ii) The damages in this case did not come within the Johnson's Exclusion Area and were not limited to any period of contractual notice or any Gunton Extension (paragraph 365); and

  • (iii) The damages were to be assessed on the basis of compensation, not punishment (paragraph 374).

4

On 10 th July 2019, the Court of Appeal dismissed the appeal of the SEB ( States Employment Board v Alwitry [2019] JCA 134) and on 3 rd April 2020 the Privy Council refused the SEB leave to appeal. The decision of the Royal Court is therefore final and the proceedings have now moved on to the assessment of Mr Alwitry's claims for damages.

5

Mr Alwitry's schedule of loss comes to just under £8 million, comprising losses up to the date of assessment in terms of salary, private practice income and pension rights, and future such losses up to the age of 65.

6

In its summons of 3 rd June 2020, the SEB seeks an order that:

“[Mr Alwitry's] damages for wrongful dismissal should be assessed on the basis that the employment relationship had irretrievably broken down at the point of dismissal and would not have continued beyond that date.”

7

This application is founded upon a finding of fact made by the Court of Appeal which I need to set in context. Schedule 18.2.1 of Mr Alwitry's contract of employment permitted the SEB to terminate his contract for the following reasons, namely conduct, capability, redundancy, failure to hold or maintain the requisite qualification, in order to comply with statute or other statutory regulation or where there is some other substantial reason to do so in a particular case. Schedule 18 is set out in full at paragraph 266 of the Royal Court's judgment. The Royal Court made the following findings:

  • (i) The Royal Court found that Mr Alwitry had not repudiated his contract of employment (paragraph 319); and

  • (ii) In the view of the Royal Court the sole ground relied upon by the SEB for terminating his contract under Schedule 18.2.1 was that it had “ some other substantial reason”, namely the fundamental breakdown in working relationships between the parties. The Royal Court found that there had not been a fundamental breakdown in the working relationships between the parties and that accordingly the SEB did not have “ some other substantial reason” for terminating his contract (paragraphs 330 – 342).

8

In its judgment the Court of Appeal found that the Royal Court had in fact been invited by the parties to also rule on the question whether the SEB could terminate the contract for “ conduct” (paragraph 67). The Court of Appeal ruled on the question itself, finding that the SEB had fallen well short of discharging the burden of proving that it had reasonable grounds for terminating Mr Alwitry's contract on the basis of conduct (paragraph 75).

9

Reverting to “some other substantial reason” the Royal Court made this observation at paragraph 332:

“332 A frequent instance of dismissal for ‘some other substantial reason’ in unfair dismissal proceedings arises where there had been a fundamental breakdown in working relationships between the parties. This recognises the pragmatic requirement that co-employees must be able to function in a harmonious and co-operative manner as one of the essential facets of the employment relationship and one which fundamentally distinguishes it from arms-length commercial relationships. As Lord Steyn said in Johnson v Unisys at paragraph 20:

‘It is no longer right to equate a contract of employment with commercial contracts. One possible way of describing a contract of employment in modern terms is as a relational contract.’”

10

The Royal Court then went on at paragraphs 339–342:

“339 We are not concerned here with whether Mr Alwitry's conduct had irreparably damaged the employment relationship of trust and confidence as we were under the section dealing with repudiation. Under Schedule 18.2.1 ‘conduct’ is a quite separate ground for termination than “some other substantial reason” and the SEB has not sought to rely on it. If it had done so, the disciplinary procedures and appeals under the contract of employment, which it sought to avoid, would have come into play. We are concerned here with whether, as a matter of fact, and viewed objectively, as at the 22 nd November 2012, there had been a fundamental breakdown in working relationships between the parties, Mr Alwitry's responsibility for that breakdown being incidental. Again, the burden of proof is upon the SEB .

340 The emphasis here is on working relationships between the parties and as the SEB is a corporate entity, that can only mean Mr Alwitry's working relationships with his co-employees. It might be thought to be stretching it somewhat to talk in terms of Mr Alwitry's working relationships when his contract was terminated before he had started work at the General Hospital at all and before his contract had become effective (clause 2) .

341 The email from the BMA stands to be treated in the same way as when we were dealing with repudiation, namely something which could not contribute to any asserted breakdown in Mr Alwitry's working relationships with his co-employees. We have already found that as at the 22 nd November 2012, the employment relationship between the co-employees concerned in the hospital management and Mr Alwitry had not been irreparably damaged by his conduct (in reality the only co-employees with whom he had any real contact) and it must follow that his working relationships with them had not fundamentally broken down. Mr McNeela had always been happy to work with him and there is no evidence that working relationships with other members of staff employed at the General Hospital had fundamentally broken down .

342 We find that as at the 22 nd November 2012, there had not been a fundamental breakdown in the working relationships between the parties and accordingly that the SEB did not have ‘some other substantial reason’ under Schedule 18.2.1 for terminating Mr Alwitry's contract of employment.”

11

Turning to the findings of the Court of Appeal on whether the SEB could terminate for “ some other substantial reason”, it is best to set out its finding in full:

“Termination for ‘some other substantial reason’

76 In case we are wrong on the SEB's hypothetical entitlement to terminate for ‘conduct’ we will also address its other argument (in fact, its preferred outcome), namely that the SEB could have terminated the Contract on three months' notice for ‘some other substantial reason’ .

77 The official passages in the Royal Court's judgment have been quoted in Paragraphs 16(ii) & (ii) above. In our judgment, they display a logical flaw. The Royal Court said that having already found that the relationship between the hospital management and Mr Alwitry ‘had not been irreparably damaged by his conductit must follow that his working relationships with them had not fundamentally broken down’ (paragraph 341, emphasis added). That is a non sequitur. The question of responsibility for the breakdown is entirely separate from the question of fact whether there had indeed been a breakdown .

78 The unavoidable conclusion is that, rightly or wrongly, the relationship between Mr Alwitry and hospital management had irretrievably broken down by 13 November 2012, and the decision to terminate the Contract is proof of that breakdown, as is (for example) Mr Downes's threat to resign. Under this heading, it is important to repeat that responsibility and culpability for the breakdown are irrelevant: the question is simply whether the relationship had gone, and the truth is that it had .

79 This conclusion is not altered by the fact that the Royal Court commented (paragraph 341) that ‘Mr McNeela had always been happy to work with him and there is no evidence that working relationships with other members of staff employed at the General Hospital had fundamentally broken down’ .

80 Reaching this stage of the analysis brings us to the issue addressed in paragraphs 332 – 338 of the Royal Court's judgment. In circumstances where the true reason for an employee's dismissal is (alleged) misconduct, can the employer ‘side-step’ the consequences of classifying it as such by relying instead on ‘some other substantial reason’? The decisions in Lauffer (supra) and Kerslake v North West London Hospital NHS Trust [2012] EWHC 1999 (QB) suggest that the answer is ‘no’. I...

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