Jeanne v Jersey Telecoms

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date19 December 2008
Neutral Citation[2008] JRC 222
Date19 December 2008

[2008] JRC 222

ROYAL COURT

(Samedi Division)

Before:

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

Between
Colin Dennis Jeanne
Plaintiff
and
Jersey Telecom Limited
Defendant

The Plaintiff represented himself.

Advocate D. M. Cadin for the Defendant.

Authorities

Employment (Jersey) Law 2003.

Employment Rights Act 1996.

Garfield Bennett v Phillips 2002/214 .

Royal Court Rules 2004.

In re Esteem Settlement [2000] JLR 119 .

Supreme Court Practice 1999.

McDonald v Parish of St Helier [2005] JLR 212 .

THE COMMISSIONER:
1

This is an appeal by the defendant against a decision of the Master of the Royal Court to refuse to strike out the plaintiff's claim.

Background
2

The plaintiff was employed by the defendant as a business systems wiring supervisor. His contract of employment, dated 22nd June, 1998, provided in clause 3 that his employment could be terminated by the defendant by the service of one month's written notice. The contract referred to the staff handbook for procedures in relation to inefficiency and discipline.

3

On 28th March, 2000, the defendant terminated the plaintiff's employment on the grounds of his inefficiency and paid him one month's salary in lieu of notice. Subsequently, the defendant paid the defendant a further two months' salary.

4

Although the defendant denies that it treated the plaintiff unfairly or improperly, it accepts that in the period leading up to the termination of the plaintiff's employment, it failed to comply with the inefficiency procedure set out in the staff handbook. That procedure allowed for four stages; stage 1 being a verbal warning; stage 2 being a written warning; stage 3 being a final written warning; and stage 4 being dismissal. There were no minimum periods for each stage but warnings expired after 6, 9 and 12 months respectively subject to satisfactory performance.

5

By letter dated the 4th January, 2001, the plaintiff gave the defendant notice of his intention to pursue a claim for damages for unfair dismissal, wrongful dismissal, loss of opportunity, loss of reputation and breach of contract. In addition, he indicated he would be claiming for loss of earnings and States of Jersey pension contributions from March 2000, as well as Social Security payments due under Jersey law.

6

Over 5 years later on 13th October, 2007, the plaintiff registered a complaint with the Jersey Employment Tribunal under the Employment (Jersey) Law 2003. That Law came into force on 1st July, 2005, and did not have retrospective effect. However, the plaintiff informed me at the hearing that he did not pursue this complaint when he became aware of the limits to the compensation that the Tribunal could award in cases of unfair dismissal.

Pleadings
7

The plaintiff commenced the action by way of Order of Justice on 24th May, 2007. The Order of Justice referred to the sections of the staff handbook dealing with inefficiency and disciplinary procedures and asserted that the defendant was in breach of his contract of employment which led to the plaintiff's " automatic unfair dismissal".

8

The plaintiff also claimed a refund of the Employer's contributions to the Occupational Pension Scheme, citing clause 3(6)(b)(iii) of the contract of employment which is in the following terms:-

" On termination of employment for any reason ... the Employee shall be entitled to ... the transfer of all Employer's and Employee's contributions to the Employee's account under the Occupational Employment Scheme."

9

Thus, the plaintiff's claim fell into two categories, firstly a claim for damages for breach of contract leading to unfair dismissal ("unfair dismissal") and secondly a claim for the Employer's pension contributions.

10

In its answer, the defendant pointed out that a cause of action for unfair dismissal was not tenable in view of the fact that the Employment (Jersey) Law 2003 came into force after the termination of the plaintiff's employment. No such cause of action was recognised under Jersey customary law.

11

The plaintiff filed a reply in which he stated that because the Employment (Jersey) Law 2003 was not in force at the time of the termination of his contract of employment, he would refer to UK employment law - "the very same Law which the defendant had used to formulate its own contract of employment, and Terms and Conditions Handbook". By reference to English Law, he quantified his claim at £910,735 which included £100,000 for breach of contract, £100,000 for unfair/wrongful dismissal, £269,393 compensation for loss of wages from date of dismissal to the Court hearing, loss of States of Jersey contributions to the Occupational Pension Scheme of £114,059.54 and loss of future salary to retirement age of £243,360.

12

In response to a request for further and better particulars by the defendant, the plaintiff confirmed that all his claims for unfair dismissal were based upon English statutory law, specifically the Employment Rights Act 1996 (a copy of sections of which were appended to his reply). At the hearing, the plaintiff confirmed to me that the whole of his case in unfair dismissal was based upon English statutory law. He accepted that he had no remedy under Jersey customary or statutory law.

Role on appeal
13

The role to be adopted in a hearing of this type was set out by Birt, Deputy Bailiff, in Garfield Bennett v Phillips 2002/214:-

" This is an appeal from a decision of the Master. In accordance with long established practice in such cases, the Court has therefore considered the matter afresh and reached its own conclusion whilst, of course, taking due note of the decision of the Master and the reasons for his decision.

Thus my function is not limited to considering whether the jurisdiction of the Master was exercised wrongly. Rather, I have to exercise my unfettered discretion afresh by reference to the material before me, giving due weight to the decision of the Master.

Defendant's summons to strike out
14

The defendant issues a summons seeking that the plaintiff's claim be struck out on the grounds set out in Rule 6/13(1) of the Royal Court Rules 2004, namely that:-

  • (i) It discloses no reasonable cause of action; and/or

  • (ii) It is scandalous, frivolous and vexatious; and/or

  • (iii) It is otherwise an abuse of the process of the Court.

15

It is well established that the Royal Court applies the same principles as have been adopted by the English Courts in relation to strike out applications (see In re Esteem Settlement [2000] JLR 119 at page 127). I was referred, as was the Master, to the following extracts from the Supreme Court Practice 1999:-

" 18/19/6 Exercise of powers under this rule - It is only in plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley M.R. inHubbuck v Wilkinson [1899] 1 Q.B. 86at 91 ( Mayor, etc. of the City of London v Horner (1914) 111 L.T. 512, CA). See alsoKemsley v Foot [1951] 2 K.B. 34; [1851] 1 All ER 331, CA, affirmed [1952] A.C. 345, HL. It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action ( Wenlock v Moloney [1965] 1 W.L.R. 1238; [1965] 2 All ER 871, CA). If there is a point of law which requires a serious discussion, an objection should be taken on the pleadings, and the point set down for argument under O. 33, r.3 ( Hubbock v Wilkinson [1899] 1 Q.B. 86at 91).

18/10/10 No reasonable cause of action or defence

(1) Principles - A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688 ; [1970] 1 All ER 1094, CA). So long as the statement of claim or the particulars ( Davey v Bentinck [1893] 1 Q.B. 185) disclose come cause of action, or raise some question fit to be decided by a Judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out ( Moore v Lawson (1915) 31 T.L.R. 418, CA; Wenlock v Moloney [1965] 2 All ER 871, CA); nor is the fact that the Statute of Frauds 1677 (which was merely a provision as to evidence) might be a bar to the claim ( Fraser v Pape (1904) 91 L.T. 340, CA). In such a case application may be made under O. 33, r.3, for the trial of a preliminary issue (see, e.g.Addis v Crocker [1961] 1 Q.B. 11; [1960] 2 All ER 629, CAaffirming [1960] 1 Q.B. 87; [1959] 3 All ER 773).

18/19/16 "Frivolous or vexatious" - By these words are meant cases which are obviously frivolous or vexatious, or obviously unsustainable, per Lindley L.J. in Att. Gen. of Duchy of Lancaster v L & N.W.Ry . [1892] 3 Ch. 274 at 277; Day v William Hill (Park Lane) Ltd [1949] 1 K.B. 632; Law v Dearnley [1950] 1 All ER 124, CA, and in Kellaway v Bury (1892) 66 L.T. 602; Bean v Flower (1895) 73 L.T. 371). For instance, it is vexatious and wrong to make solicitors or other parties to an action merely in order to obtain from them discovery or costs ( Burstall v Beyfus (1884) 26 Ch.D.35; and see Farnham v Milward [1895] 2 Ch. 730). But a judicial discretion must be used in determining whether the proceedings are vexatious (per Halsbury L.C. in Higgins v Woodhall (1890) 6 T.L.R. 1). The pleadings must be "so clearly frivolous that to put it forward would be an abuse of the process of the Court" (per Jeune P. in Young v Holloway [1895] P.87 at 90; and see Whitworth v Darbishire (1893) 68 L.T. 216). And action involving gaming debts, even though framed in the guise of an account stated, will be struck out ( Day v William Hill (Park Lane) Ltd [1949] 1 K.B. 632, CA, not following Gugenheim v Ladbroke & Co. [1947] 1 All ER 292, CA).

18/19/18 "Abuse of the process of the Court" - Para. (1)(d) confers upon the Court in express terms powers which the Court has...

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1 cases
  • Jeanne v Jersey Telecoms
    • Jersey
    • Court of Appeal
    • 8 July 2009
    ...Jersey Telecom Limited Respondent The Appellant in person. Advocate D. M. Cadin for the Respondent. Authorities Jeanne v Jersey Telecoms [2008] JRC 222 . Trant v Attorney General [2007] JLR 231 . Industrial Relations Act 1971. Employment Protection Act 1975, as amended by the Employment Rig......

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