Luxicabs v Baal

CourtRoyal Court
JudgeThe Bailiff
Judgment Date01 April 2011
Neutral Citation[2011] JRC 72
Date01 April 2011

[2011] JRC 72


(Samedi Division)


M. C. St. J. Birt, Esq., Bailiff, and Jurats Clapham and Kerley.

Luxicabs Limited
Mary Baal

Mr W. Prior, Director for the Appellant.

Advocate D. Le Maistre for the Respondent.


Employment (Jersey) Law 2003.

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

Anchor Trust Company Limited v Jersey Financial Services Commission [2005] JLR 428.

Walters v States Housing Authority 24 GLJ at 46 – 47.

Halsbury's Laws of England (4th edition) Vol 44(1).

AG v Corbiere Pavilions Limited (1982) JJ 173.

Re Ostroumoff [1999] JLR 238.

The Bailiff

This is an appeal, with leave of the Deputy Bailiff, against a decision of Advocate P Harris, Relief Magistrate, sitting in the Petty Debts Court on 10th November 2010 when he granted judgment against the appellant (“Luxicabs”) in the sum of £3,622 plus interest and costs. This sum had been awarded by the Employment Tribunal on 21st September 2010 when it ruled that the plaintiff had been unfairly dismissed by Luxicabs.

Factual background

In view of the grounds relied upon by Luxicabs, it is necessary to describe very briefly the factual background to the dispute which came before the Employment Tribunal.


The plaintiff was employed by Luxicabs from 31st March 2008 until 24th November 2009, when she was dismissed for gross misconduct. The events giving rise to her dismissal occurred on Saturday 21st November 2009. That evening she was working as the operator in the Luxicabs control room alongside a Miss Gray, who was working as telephonist. The telephonist takes calls from members of the public ordering taxis and passes messages to the operator who uses a computer software programme to assign the jobs to drivers. The operator's job is tense and difficult, particularly on a Saturday night, which is the busiest night of the week. There is no dispute that during the evening the plaintiff became increasingly stressed by failures of the computer system, which is designed to assign jobs automatically to available and appropriate drivers. Such failures mean that the operator has to repeat processes and sometimes contact drivers by telephone to assign jobs. In the context of a busy Saturday night, such failures can lead to delay, irate customers and drivers and pressure upon the operator.


During the course of the evening the plaintiff became unusually tense and anxious and started to panic. She told Miss Gray to stop accepting new bookings but Miss Gray did not and so the pressure increased further. In due course the plaintiff sent a message through the computer system to all drivers stating “Sorry guys, had enough. Gone home. Thanks for help”. In fact she had not gone home. She asked Miss Gray to call Mr W Prior, the owner of Luxicabs, to come in to help sort matters out. Mr Prior said he would come in.


Before he arrived, another employee, Miss Vicky Leighton came into the control room. She had been telephoned by Mr Prior following the call from Miss Gray and he had asked her to come in to help in an emergency, which she did in her pyjamas. However she was told that she need not stay and accordingly left. At some stage the plaintiff had called her partner, Mr Neale who was a driver for Luxicabs and asked him to come to collect her. He duly arrived after Miss Leighton had left and before Mr Prior arrived. According to his evidence, when he arrived, he stood at the door of the control room watching.


Not long after this Mr Prior, Mrs Prior (his wife) and Mr Michael Beason (his son in law) arrived. Mr Beason took over the role of operator and the plaintiff, who was clearly distressed and unhappy, left with Mr Neale.


There was a disciplinary hearing which took place on 24th November at which the plaintiff was assisted by a Mrs Pestana, who was assigned by the trade union Unite to represent the plaintiff. Following the hearing the plaintiff was dismissed for gross misconduct.


The plaintiff subsequently brought proceedings before the Employment Tribunal for unfair dismissal. The matter was originally listed to come before a panel consisting of three members, namely the Chairman Advocate Le Quesne and two lay members. When the hearing started, the Chairman informed the parties that one of the panel members had a close association with Unite, which was providing support for the plaintiff. Not unnaturally Luxicabs objected to that member forming part of the panel and accordingly the Chairman proceeded to hear the matter alone, as he is entitled to do under the Regulations governing the constitution of the Employment Tribunal. The key issue before the Tribunal was whether, as Luxicabs contended, the plaintiff had abandoned her post in the period between sending the circular message referred to at paragraph 4 above and the arrival of Mr and Mrs Prior and Mr Beason. Her case was that she remained at her post until Mr Beason's arrival doing her best, albeit that she accepted that she was very stressed and not performing very well; Luxicabs case was that she simply abandoned her post and was not performing her work when Mr and Mrs Prior and Mr Beason arrived.


The Chairman had to resolve this dispute of fact. In support of the plaintiff, he heard the oral evidence of the plaintiff and Mr Neale to the effect that she had remained at her seat until the Prior family arrived; in support of Luxicabs, he heard the evidence of Mr and Mrs Prior and Mr Beason to the effect that she had left her post by the time of their arrival. He commented that it was unfortunate that Luxicabs had not called Miss Gray or Miss Leighton, although it appears that he was in possession of a witness statement from the former, which he concluded he should ignore as hearsay, as the plaintiff did not have the opportunity of cross examining the witness. He ruled that he was not persuaded on the balance of probabilities that the plaintiff had deserted her post before the arrival of the Prior family or that she was not still at her desk when the Prior family arrived. In the circumstances, this being the sole gross misconduct relied upon, he held that the plaintiff had been unfairly dismissed. He also found that the disciplinary process carried out the following Tuesday was unfair. He accepted the evidence of Mrs Pestana to the effect that Mr Prior had not appeared interested in the plaintiff's answers and had not given her a fair hearing. He awarded the plaintiff the sum of £3,622 as mentioned previously.


Following receipt of the award, Luxicabs wrote seeking leave to make an application under Article 77F of the Employment (Jersey) Law 2003 (“the Law”) for a reduction of the award on the grounds that the conduct of the employee before dismissal had contributed directly to dismissal and was such that a reduction of the award was just and equitable. However, the Chairman refused to re-open the matter and declared that the Tribunal's award was final, which indeed was what had been said on the face of the award itself.


Following that decision, Crill Canavan, on behalf of the plaintiff, wrote on 22nd October seeking payment of the award within 7 days, failing which they indicated that proceedings would be issued in the Petty Debts Court without further notice. Luxicabs did not pay the award and accordingly the plaintiff duly instituted such proceedings.


The matter came before the Petty Debts Court on 10th November 2010. We have a transcript of the proceedings. Mr Matthew Prior (“Mr Prior junior”), the son of Mr Prior and also a director of Luxicabs, represented the company. He had also done so before the Employment Tribunal. When the matter was first called on, he indicated that Luxicabs wished to defend the claim. The matter was then put to the end of the list at which time Advocate Le Maistre, on behalf of the plaintiff, argued that there could be no defence to the claim because it was simply seeking enforcement of an award made by the Employment Tribunal. Mr Prior junior explained that Luxicabs disagreed strongly with the award of the Tribunal and wished to dispute its finding. The Relief Magistrate held that it was not possible to do so and that the only remedy available to Luxicabs was to appeal against the Tribunal's decision to the Royal Court. As he could see no defence to the action, he declined to put the matter on the defended list and gave judgment in the amount of the Tribunal's award.


It is against that decision that Luxicabs now appeals.

The appellant's submissions

A new matter arose during the course of the hearing and we shall refer to that later. For the moment we shall summarise the ground of appeal put forward by Luxicabs.


The foundation of Mr Prior's contentions on behalf of Luxicabs is that the decision of the Tribunal was erroneous and unreasonable and he should have been allowed to re-open the Tribunal's findings before the Petty Debts Court.


As to his criticisms of the Tribunal, we would summarise these as follows:-

  • (i) The Chairman disclosed bias by inviting a member of Unite to sit as a member of the Tribunal when he was aware that the plaintiff's case was being funded by Unite. In those circumstances this was not cured by the Chairman sitting alone once this problem had been identified. Indeed, Mr Prior said that he felt pressurised to agree to the Chairman sitting alone as he was told by the Chairman that, if he did not, it might be a considerable time before the case could be heard due to the workload of the Tribunal and it would cause significant inconvenience to the process and all concerned.

  • (ii) The Tribunal's conclusion that the plaintiff had not left her work station before the arrival of the Prior family was simply untenable in the light...

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