Maria da Piedade de Sousa v Danny Yau Ltd trading as Princess Garden

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date02 September 2019
Neutral Citation[2019] JRC 169
Date02 September 2019

[2019] JRC 169

ROYAL COURT

(Samedi)

Before:

Sir William Bailhache, Bailiff, sitting alone.

Between
Maria da Piedade de Sousa
Appellant
and
Danny Yau Limited trading as Princess Garden
Respondent

Advocate M. P. Cushing for the Appellant.

Advocate L. A. Ingram for the Respondent.

Authorities

Alwitry v States Employment Board [2019] JRC 014.

States Employment Board v Alwitry [2019] JCA 134.

Employment (Jersey) Law 2003.

Young v Sowney (Claim number 03/18, under reference [2018] TRE 003).

Société Générale, London Branch v Geys [2012] UK SC 63.

London Transport Executive v Clark [1981] ICR 355.

Employment (Qualifying Period) (Jersey) Order 2014.

Johnson v Unisys Limited [2001] 2 WLR 1076.

Article 1184 of the former Civil Code.

Comparative Law in Practice (2016).

( Hamon v Webster unreported 19th July, 2002).

New Guarantee Trust Finance Limited v Birbeck (1977) JJ 71.

Hanby v Moss (1966) JJ 625.

Rossborough (Insurance Brokers) Limited v Boon [2001] JLR 416.

Grove v Baker [2005] JLR 348.

Pothier in his Traité des Obligations.

HRCKY Limited v Hard Rock Limited and another [2019] JCA 123.

Traité du Droit Coutumier.

Cooperative Insurance Society Limited v Argyll Stores (Holdings) Limited [1998] AC 1.

Basden Hotels Limited v Dormy Hotels Limited [1968] JJ 911.

Viscount v Treanor [1969] JJ 1243.

Doorstop Limited v Gilman and Lepervier Holdings Limited [2012] JRC 199.

Employment — appeal by the Appellant against a decision of the Employment and Discrimination Tribunal.

Bailiff

THE

Introduction
1

This is an appeal by the Appellant against a decision of the Jersey Employment and Discrimination Tribunal dated 10 th September, 2018, when the Tribunal (Advocate Michael Preston, Deputy Chairman) dismissed the Appellant's claim for compensation for unfair dismissal arising from the termination of her employment with the Respondent. Leave to appeal was granted by me on 12 th November, 2018 on the papers. The sole ground of appeal on which leave was granted was whether the Tribunal erred in law by failing to direct itself that in order to constitute a resignation from employment, there must be clear and unambiguous communication between the parties so that both parties must understand what has taken place and when the employment is to come to an end.

2

The appeal was listed for 21 st March, and on that day Advocate Ingram on behalf of the Respondent applied for an adjournment on the basis that a new case had been added to the skeleton, namely that of Alwitry v States Employment Board [2019] JRC 014. Advocate Ingram submitted that it was an important decision, albeit that it was then under appeal (that appeal has subsequently been heard and judgment delivered), and he suggested an adjournment was necessary so that contentions from both sides could be re-written and the Court would be assisted by submissions on the Alwitry decision. Advocate Cushing responded that he relied on Alwitry solely for the summary of résolution at paragraph 288 and it was not necessary to have any further round of contentions.

3

In the exercise of my discretion I considered that this appeal should go ahead. The parties would be able to make such submissions as they wished on the Alwitry decision and it was unnecessary to have an adjournment specifically for written contentions on that case.

The facts
4

By the JET 1 and JET 2 forms dated 10 th October, 2017 and 17 th October, 2017, the parties made plain what was in issue. The claimant sought statutory compensation for unfair dismissal, damages for wrongful dismissal, outstanding holiday pay and outstanding pay for public holidays, together with a compensation claim for failing to give the claimant written payslips. The Respondent employer asserted that the employer believed that the Applicant had resigned and was not coming back to work and it employed someone else to carry out the Applicant's role.

5

The judgment of the Tribunal makes it plain that, having heard the evidence of the Applicant and the evidence of the employer, it preferred the evidence of the employer. At paragraph 17 of his judgment, the Deputy Chairman, said that the Tribunal found as a matter of fact that the Applicant told the employer that she was going away for the month of August, and did not mention any illness on the part of her brother. When the Applicant failed to return at the end of August, the employer reasonably assumed she had resigned and was not returning. She did in fact return on 19 th September, by which time the employer had employed someone else to do the Applicant's job. There is a finding of fact by the Tribunal that the employer had tried to contact the Applicant without success after 1 st September.

6

Against that background of facts found to have been established, the Deputy Chairman decided that the employer was reasonably entitled to assume that the Applicant had resigned and would not be returning. In those circumstances the claim for unfair dismissal failed and, given the finding of fact that the Applicant had resigned, the claim for wrongful dismissal failed as well.

7

This summary, which appears in the decision giving leave on 12 th November, 2018, was agreed by Advocate Cushing as accurate for the purposes of this appeal. He informed the Court that his client disagreed with the factual findings made by the Tribunal, but he and the Appellant were aware that this was an appeal on a point of law.

8

In effect, the appeal was on a narrow point of law – was the Tribunal wrong to find as a matter of law that the Appellant's failure to turn up for work between 1 st and 19 th September, 2017, amounted to a resignation? In this context, I recall the comments of Crow JA in States Employment Board v Alwitry [2019] JCA 134 at paragraph 30 that where an appellate court is conducting an evaluative exercise on facts which are admitted or have been established in the tribunal below, the court does not need to be as deferential to the lower tribunal as is required in relation to findings of primary fact, but the views of the tribunal are nonetheless given some weight.

9

The issue involves not just contract law but also whether there had been what amounts to an unfair dismissal and therefore a breach of the statutory rights created by the Employment (Jersey) Law 2003 (“the Law”).

The contract
10

I start with the position as a matter of the law of contract. The contract in this case provided for the employment of the Appellant as a kitchen porter, setting out her basic duties and responsibilities, her hours of work each week, her salary and her holiday entitlement. The contract provided for sick leave, termination of employment, confidentiality, disciplinary procedures and dismissal. The relevant provisions of the contract are set out below:-

“Termination of Employment

Four weeks' notice must be given.

The employer reserves the right to pay your basic salary in lieu of notice instead of requesting that you work your notice period. In these circumstances, you may not be employed by any other person or company whilst receiving pay in lieu of notice.

The employer reserves the right to dismiss you without notice in cases of serious breach of the terms of your employment, gross misconduct or gross negligence by you.

Disciplinary procedures:

Minor problems will be dealt with and resolved informally.

In cases of more serious problems, depending on the seriousness of the breach of terms and conditions of contract or conduct and performance of your duties, one of the following disciplinary actions may be taken.

Verbal warning which will be confirmed to you in writing and recorded in your personnel file for a period of six months.

A first written warning, which will be confirmed to you in writing and recorded in you (sic) personnel file for a period of 12 months.

A final warning which would be confirmed to you in writing advising that further misconduct could lead to dismissal and recorded in your personnel file for a period of 12 months.

Dismissal

In cases of gross misconduct there will be no period of notice given.

Before any of these actions are taken you will receive a letter setting out the details of the alleged misconduct and inviting you to a meeting to discuss the matter. You will have the right to be accompanied to the meeting by a work colleague or trade union representative. After the meeting, you will be informed if any further action will be taken. You have the right to appeal but must do so within 10 working days of receipt of the notification of the decision.”

The decision appealed against
11

The decision of the Tribunal can be found in two paragraphs of the Deputy Chairman's judgment:-

“3. The finding of the Tribunal is that the Claimant resigned or that the respondent was reasonably entitled to treat her conduct as a resignation. As such, the Claimant was not unfairly dismissed and that her claim is not successful; the Respondent did not wrongfully dismiss the Claimant in breach of contract and so no notice was due; the Claimant failed to prove that she was owed any holiday pay or pay in respect of Public Holidays; and, the Respondent did not provide written pay slips and so no compensation was payable in this respect. As a consequence, no award is made in her favour .

17. As indicated above, the Tribunal preferred the evidence of the Respondent to that of the Claimant. The Tribunal finds as a matter of fact that the Claimant told Mr Wan that she was going away for the month of August and that there was no mention of the fact that the Claimant's brother was ill. When the Claimant did not return, without giving any information to the Respondent, Mr Wan reasonably assumed that she had resigned and was not returning. There was evidence that he had tried to contact her without success. On the facts, this was a case where the Claimant resigned and was not dismissed. As...

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1 cases
  • Jersey Financial Services Commission v Emma Mathew
    • Jersey
    • Royal Court
    • 15 September 2020
    ...[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......

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