Jersey Financial Services Commission v Emma Mathew

JurisdictionJersey
CourtRoyal Court
JudgeThe Bailiff
Judgment Date15 September 2020
Neutral Citation[2020] JRC 185
Date15 September 2020

[2020] JRC 185

ROYAL COURT

(Samedi)

Before:

T. J. Le Cocq, Esq., Bailiff

Between
Jersey Financial Services Commission
Appellant
and
Emma Mathew
Respondent

Advocate V. S. Milner for the Appellant.

Advocate A. D. Hoy for the Respondent.

Authorities

Employment (Jersey) Law 2003.

Voisin v Brown [2007] JRC 047.

Jones v Royal Bank of Scotland International [2007] JRC 125.

Broere and Others v Broere and Others [2003] JCA 222.

De Sousa v Danny Yau Limited trading as Princess Garden [2019] JRC 169.

Kelly v Specsavers Jersey Ltd (Case No. 2804-043/08).

Cerberus Software and Rowley [1999] UKEAT 1023_98_1407.

States Employment Board v Alwitry [2019] JCA 134.

Gisda Gida v Barette [2010] IRR 1073

Employment — appeal against the decision of the Employment Tribunal relating to constructive dismissal

The Bailiff
1

This is an appeal by the Jersey Financial Services Commission (“the Commission”) against the interim decision of the Deputy Chairman of the Jersey Employment and Discrimination Tribunal (“the Tribunal”) of the 31 st January, 2020, (“the Judgment”) in which the Deputy Chairman refused to strike out the claim of Miss Emma Mathew (“Miss Mathew”) for constructive dismissal. The Commission argued that the claim had been lodged out of time.

2

Ms Mathew was employed by the Commission as Head of Communications under a contract of employment dated 1 st October, 2014, (“the Contract”). On the 7 th January, 2019, she resigned from that position. The Commission offered to pay her three months' salary in lieu of notice but she declined and wished to remain as an employee of the Commission for the remainder of her notice period. Under the terms of the Contract, that notice expired on the 6 th April 2019. It was agreed and required of Miss Mathew by the Commission that, for her notice period, she was on gardening leave in accordance with the terms of the Contract.

3

Insofar as is relevant, the Contract contains the following provision::-

“;…. the employee shall be prohibited from engaging in activities inconsistent with the employee's continued employment status without the written permission of the Commission.”

4

The Contract also provides:-

“the employee shall not engage in any additional employment ….. without the prior permission of the Human Resources Department”.

5

Ms Mathew had been on sick leave from 3 October 2018, and it is understood that in or about December 2018, she received an offer of employment as Head of Communications from the Justice and Home Affairs Department of the Government of Jersey. Subsequently, she handed in her resignation as referred to above.

6

Notwithstanding the fact that her notice period expired on the 6 th April, 2019, on the 1 st April, 2019, Miss Mathew commenced full-time employment with the Government of Jersey. Miss Mathew did not seek the permission or agreement of the Commission to terminate her employment early, nor did she notify the Commission that she had started another full-time job elsewhere.

7

Miss Mathew brought a claim for constructive dismissal against the Commission. She lodged that complaint within eight weeks of the 6 th April, 2019, but more than eight weeks of the 1 st April 2019. Eight weeks is the period within which such a claim must be lodged.

8

Accordingly, the main issue before me is whether Miss Mathew's employment ceased at the end of her notice period on the 6 th April 2019, or when she commenced full-time employment with her new employer on the 1 st April 2019. Amongst other things, the issue that this case raises is the nature of gardening leave and the obligations that it places upon an employee.

9

The position of the Commission on this matter is quite straightforward. The Commission argues that taking full-time alternate employment is effectively the repudiation of the Contract and accordingly the Contract ended by repudiatory breach on 1 st April 2019. If that is correct then Miss Mathew's claim for constructive dismissal is out of time.

10

On the other hand, Ms Mathew argues that she was entitled to take alternative employment because, in effect, the Contract was effectively ‘defunct’. In essence, so it is argued, the nature of gardening leave is to prevent an employee going to work for a competitor or acting to the detriment of the employer during the notice period. There was no such situation here as the new employer was not in any sense in competition with the Commission, and Miss Mathew's new employment could not be to the Commission's detriment. In the circumstances there was no ‘repudiatory breach’ of the contract of employment.

11

The Judgment dismissed the Commission's application to strike out Ms Mathew's claim on the following basis:-

  • (i) the Tribunal acknowledged that by undertaking “additional employment” without the Commission's permission do so, there was a breach of the contract. That, so the Judgment determined, and was indeed confirmed before me, was not in dispute;

  • (ii) however, commencing new employment had not been proven to be detrimental to the Commission;

  • (iii) further evidence would be required to determine if the contract provisions that prohibit her from working elsewhere applied during the period of gardening leave;

  • (iv) further evidence was required to determine whether the contract had been varied by reason of Ms Mathew not being required to work during the gardening leave period;

  • (v) a test for a repudiation of the contract of employment had not been met as Ms Mathew had no longer been required to provide services. The Commission did not require her to work and, accordingly, there was no ‘bad faith’ on her part;

  • (vi) the breach was not serious enough to be a repudiatory breach.

The Law
12

Article 94(1) of the Employment (Jersey) Law 2003 (“the Law”) provides:-

“An appeal on a question of law shall lie from the decision or order of the Tribunal to the Royal Court with the leave of the Tribunal or the Royal Court.”

13

It is common ground that the test to be applied in an appeal on a question of law, is as set out by this court in Voisin v Brown [2007] JRC 047 at paragraph 18. In that judgment the court said that there was no power to interfere with the Tribunal's decision unless it established:-

“(a) that the Tribunal misdirected itself in law or misunderstood the law or misapplied the law; or (b) that there was no evidence to support a particular conclusion or finding of fact; or (c) that the decision was either perverse in that it was one which no reasonable Tribunal, directing itself properly on the law, could have reached or alternatively, was one which was obviously wrong….”

14

The Judgment was an interlocutory decision and therefore this Court will be slow to intervene. In Jones v Royal Bank of Scotland International [2007] JRC 125, Clyde-Smith Commissioner, citing Broere and Others v Broere and Others [2003] JCA 222, stated:-

“I would normally be slow to grant leave to appeal on a matter of discovery. Such matters are principally for the discretion of the court at first instance and…. leave should only be granted in such interlocutory matters where there is a clear case of something having gone wrong [see Glazebook v Housing Committee [13th November 2002] Jersey Unreported [2002/217]].”

15

The Commission's appeal is primarily on the basis that the Deputy Chairman misunderstood or misapplied the Law, and accordingly leave to bring this appeal, as required by Article 94(1) of the Law, was granted by the Tribunal.

16

A number of authorities have been placed before me in dealing primarily with the question of repudiatory breach and the law relating to gardening leave.

17

The first was the case of De Sousa v Danny Yau Limited trading as Princess Garden [2019] JRC 169 in which the Court, considering amongst other things the failure by an employee to return to work on a particular date as agreed, said:-

“41 … The heart of this appeal is not a legal question but a factual one – was the conduct of the appellant to be treated as a repudiation by her of the Contract, and therefore, for the purposes of the Law as a resignation; or was it merely a breach which meant that the Contract subsisted and the employer had a choice between dismissing the appellant by the repudiating the contract itself as a result of the breach or alternatively suing for resolution and/or damages .

42 The factual issue therefore falls to be determined by analysing who brought the contract to an end in accordance with the Jersey law of resolution” .

At paragraph 50, the Court said:-

“The present case …. requires me to consider whether a breach of contract can amount to a repudiation of it such that the contract automatically comes to an end. In my judgment, where the implied duty of good faith in an employment contract is destroyed, that goes to the heart of the contract and the party who causes that state of affairs to come about cannot assert against the innocent party that the contract continues.”

At paragraph 38 of the judgment the Court said that:-

“…. a party to an employment contract who deliberately breaches that duty does by that conduct leave herself exposed to the assertion that she has terminated it.”

and, at paragraph 56, the Court said:-

“It is noteworthy that there is a dismissal by the employer in circumstances where either the employer gives notice or otherwise terminates the contract of employment, or where the employee terminates it with or without notice in circumstances in which the employee would be entitled to terminate it without notice by reason of the employer's conduct. What is absent from the definition of the circumstances in which an employee is dismissed is the circumstances where the employee terminates the contract with or without notice for reasons of his or her own which are unrelated to the employer's conduct.”

At paragraphs 52 and 53, the Court said:-

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