Jeanne v Jersey Telecoms

JurisdictionJersey
CourtCourt of Appeal
JudgePleming JA,Jones JA,Montgomery JA
Judgment Date08 July 2009
Neutral Citation[2009] JCA 138
Date08 July 2009

[2009] JCA 138

COURT OF APPEAL

Before:

M. S. Jones, Esq., Q.C., President; N. Pleming, Esq., Q.C., and; Miss C. Montgomery, Q.C..

Colin Dennis Jeanne
Applicant
and
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 Rights Act 1996.

Employment (Jersey) Law 2003.

Jersey Steel Co Ltd v. Holdyne Ltd (1972) JJ 2009 .

Dawnays Ltd v. F.G.Minter Ltd [1971] 1 WLR 1205 .

Jersey Law Commission Consultation Paper No. 5 “The Jersey Law of Contract” published in 2002.

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

Malloch -v- Aberdeen Corporation [1971] 1 WLR 1578 (HL) .

Focsa Services (UK) Ltd v Birkett [1996] IRLR 325 .

Wise Group v Mitchell [2005] ICR 896 .

Janciuk v. Winerite Ltd [1998] IRLR 63 .

Johnson v. Unisys Ltd [2001] UKHL 13 , [2003] 1 AC 518.

Eastwood v. Magnavox Electric plc , and McCabe v. Cornwall County Council [2004] UKHL 35, [2005] 1 AC 503.

In re Esteem Settlement [2000] JLR 119 .

O'Brien v Marett [2008] JCA 178 .

Pleming JA

Introduction

1

This is an appeal against a decision of the Royal Court on 19th December 2008 (“the Decision”). The Commissioner's decision was to strike out the whole of the Plaintiff's claim contained in the Order of Justice, save for the refund of the employer's contributions under the Occupational Pension Scheme. That aspect of the Appellant's claim continues and is not considered further in this judgment.

2

The Appellant appeals on the following grounds (taken from the Notice of Appeal):-

  • (i) The Commissioner of the Royal Court has completely ignored the Plaintiff's statutory Contract of Employment as well as contractual statutory Terms and Conditions Agreement; and

  • (ii) The Commissioner has denied the Plaintiff his right to use the same principles applied to his Contract, as used by the Defendant, to compile the Contract considering the local Laws are silent on this issue; and

  • (iii) That common law rights of the parties are restricted by the terms of the agreement made between the Defendant and the Plaintiff; and

  • (iv) That the Plaintiff believes there is clearly a conflict of interest in the case.

3

The Appeal has been conducted on the basis of the following written submissions:-

  • (i) The Appellant's Notice of Appeal, and Grounds, together with a bundle of documents (Bundle 1);

  • (ii) The Respondent's contentions, together with Bundles 2, 3 and 4;

  • (iii) The Appellant's response to the Respondent's Bundle 4.

4

The Appellant's written arguments are also set out in some detail in his pleaded case, the Order of Justice dated 24th May 2007, the Reply dated 29th May 2008, and the Answer to Defendant's Request for Further and Better Particulars dated 7th July 2008.

The factual background

5

A brief summary of the facts relating to the Appellant's employment can be taken from paragraphs 2 to 5 of the Decision, retaining the reference to plaintiff and defendant:-

  • 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

The test on an application to strike out is well-established. It is only where it is plain and obvious that the claim cannot succeed that recourse should be had to the court's summary jurisdiction to strike out. On an application to strike out under sub-paragraph (a) of r.6/13(1) of the Royal Court Rules 2004 (that there is no reasonable cause of action) evidence is not admissible. However, where an application is made under subparagraph (b) (scandalous, frivolous or vexatious), or sub-paragraph (d) (abuse of process), or where the application to strike out invokes the inherent jurisdiction of the court, evidence is admissible, and may be considered by the court. See Trant v Attorney General [2007] JLR 231 at paras 22 and 23. The application in this case was made under sub-paragraphs (a), (b) and (d) – and therefore evidence would be admissible. However, it seems to be that in this case the appropriate approach for the court to take is to consider the appeal broadly on the basis that the Appellant can establish his factual case at trial.

The Appellant's Arguments on Grounds of Appeal (i) to (iii)

7

In his Notice of Appeal, the Appellant takes issue with the Commissioner's decision, paragraph by paragraph. The Appellant's main complaint is that the dismissal was in breach of the Grievance and Disciplinary Procedures referred to in clause 12 of the Contract of Employment and set out in the Jersey Telecoms/AEEU Staff Agreement Book (“the Agreement”) incorporated into the contract by clause 14. The Appellant relies on Section 10 of the Agreement headed Discipline and Conduct (in a later version of the Agreement with the Court's papers it is headed “Discipline Inefficiency and Conduct”), referring in particular to paragraph 2.5:-

No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice”.

8

The Appellant's case is that there was a breach of this paragraph (and other paragraphs) of Section 10 of the Agreement. In his pleadings, the Appellant also relies on Section 12 of the Agreement, which deals with Inefficiency, and sets out an “Inefficiency Procedure” which could, but may not, lead to dismissal. It is clear, even on the pleaded case, that this is an “inefficiency” case, not a “misconduct/discipline” case. The appropriate procedures under that heading are set out in Section 12 of the Agreement (later in Part 2 of Section 10). However, as the Appellant relies on Part 1 of Section 10, and to test the argument, I will concentrate the analysis on the discipline provisions.

9

Paragraph 1 of Section 10 of the Agreement is as follows:-

Purpose and scope

This procedure is designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and job performance. This procedure applies to all AMALGAMATED ENGINEERING & ELECTICAL UNION employees of Jersey Telecom with the aim of ensuring consistent and fair treatment for all.

THIS SECTION IS BASED ON, AND IS IN THE SPIRIT OF, THE ACAS DISCIPLINE AT WORK DOCUMENT, COPIES OF WHICH ARE HELD BY GROUP MANAGERS, SHOP STEWARDS AND IN THE LIBRARY.”

10

Based on the words in capitals in Section 10 of the Agreement (although they do not appear in Section 12) the Appellant argues that there has been an express incorporation of the provisions of English statutory law into the Contract of Employment. He summarises this aspect of the appeal in the following extracts from paragraphs 6 to 9 of the Notice of Appeal:-

  • (i) The Plaintiff has a statute Contract, Terms and Conditions agreement with the Defendant which is a legal document signed by both parties which should be upheld by Law.

  • (ii) As there was no statutory Contract Law in Jersey in 2000, the Plaintiff is basing his claim for Breach of Contract, Unfair Dismissal and Wrongful Dismissal on the UK English case Law and principles, the very same Law and principles used by the Defendant to compile its own Contract document. The UK Employment Rights Act (1996), BERR and ACAS have clear guidelines with regards to claiming damages for Breach of Contract, Unfair and Wrongful Dismissal that have been in practice for over 13 years (and now imported and adopted by Jersey in 2003) and have proved effective in settling such claims/disputes, but the States of Jersey Royal Court is refusing the Plaintiff his right to use guidelines and principles in use from the UK English Civil Courts.

  • (iii) In the past the States of Jersey Royal Court has “cherry-picked” guidelines and principles from other jurisdiction (mainly the UK) to settle cases where statutory Law is silent in Jersey, but is refusing the Plaintiff that right to do the same considering that Jersey did not have statutory Employment Laws to protect people with Contracts, which is both unfair and unjust and considering that these Contracts are compiled purely using UK principles and guidelines.

  • (iv) The Plaintiff will argue that it is a fact (and stated in the Plaintiff's Contract) that the Defendant has compiled its own Employment...

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