Voisins Department Store Ltd v Rui Antonio Candoso Soares

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date08 January 2014
Neutral Citation[2014] JRC 4
Date08 January 2014

[2014] JRC 4

ROYAL COURT

(Samedi)

Before:

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

Between
Voisins Department Store Limited
Representor
and
Rui Antonio Candoso Soares
Respondent

Advocate M. Preston for the Representor.

Advocate A. Kistler for the Respondent.

Authorities

Employment (Jersey) Law 2003.

Royal Court Rules 2004.

Planning and Building (Jersey) Law 2002.

High Hedges (Jersey) Law 2002.

Royal Court (Appeals from Petty Debt Court) Rules 2004.

Court of Appeal (Jersey) Law 1961.

Royal Court (Jersey) Law 1948.

Court of Appeal (Civil)(Jersey) Rules 1964.

Barker v Barclays Bank Plc [1989] JLR Notes 2B .

Voisin v Brown [2007] JRC 047 .

Luxicabs Limited v Baal [2011] JLR 208 .

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 .

Soares v Voisin 11 th June 2013–79/2012.

J Sainsbury PLC v Hitt [2003] ICR 111 .

Foley v Post Office and HSBC Bank Plc v Madden [2000] 1 CR 1283.

Jersey Advisory Conciliation Service Code of Practice.

Jersey Advisory and Conciliation (Jersey) Law 2003.

Hussain v Elonex Plc [1999] IRLR 420CA .

Meek v City of Birmingham District Council [1987] IRLR 250CA .

Boardman v Nugent Care Society and Another [2013] ICR 927 .

BSC Sports & Social Club v Morgan [1987] IRLR 391 .

Osbourne v Spellbound Holdings 16th September 2009–0801–002/09.

Baal v Luxicabs 13th September 2010–0501–005/10.

Knox v Alex McAulay Limited 16th July 2013–153/2012.

Employment — appeal against the decision of the Jersey Employment Tribunal — unfair dismissal.

THE COMMISSIONER:
1

This is an appeal by the representor (“Voisins”) against the decision of the Jersey Employment Tribunal (“the Tribunal”) of 17 th July, 2013 that the respondent (“Mr Soares”) had been unfairly dismissed by Voisins, and its award of £9,375 in respect of unfair dismissal and £5,480.79 in lieu of notice pay.

2

Article 94(1) of the Employment (Jersey) Law 2003 (“the Employment Law”) provides that appeals from decisions or orders of the Tribunal shall only lie on a question of law and shall only be brought with the leave of the Tribunal or the Court. In the absence of any rules relating to appeals from decisions of the Tribunal, the appeal was brought by way of Representation.

Application for Leave
3

The Tribunal has set down a time limit of 28 days for the bringing of an application for leave before it but there is no time limit either under the Employment Law or under the Royal Court Rules 2004 or Practice Directions issued thereunder for the making of applications for leave before the Court, so that in theory applications before the Court could be made months if not years after the decision.

4

In this case, the decision of the Tribunal was issued on 17 th July, 2013. The award was expressed as being payable within 21 days. On 19 th August, 2013, Mr Soares wrote to Voisins demanding payment of the award within 7 days. By e-mail of 22 nd August, 2013, Voisins gave notice to Mr Soares that it would be appealing the decision and asking for a stay of the award, pending the outcome of the appeal. A stay was not agreed and in the end Voisins filed its Representation with the Court on 30 th August, 2013, some 44 days after the decision.

5

Mr Kistler accepted that the Court had a discretion as to whether or not to grant leave, but in doing so he submitted that the Court should have regard to the time limits imposed on appeals generally so as to provide consistency:–

  • (i) Under Rule 15 of the Royal Court Rules a period of 28 days is laid down for the bringing of an appeal under the Planning and Building (Jersey) Law 2002 and the High Hedges (Jersey) Law 2002.

  • (ii) Under Rule 20 of the Royal Court Rules appeals from decisions of the Judicial Greffier have to be brought within 10 days.

  • (iii) Under Article 4 of the Royal Court (Appeals from Petty Debt Court) Rules 2004, applications for leave to appeal must be made within 7 days.

6

The 44 days taken by Voisins to file its representation exceeds all of the above limits and because of this delay, the prejudice to Mr Soares and the absence of any explanation, Mr Kistler submitted that leave should be refused.

7

Furthermore Mr Kistler submitted that leave should first have been sought from the Tribunal within the 28 days it had laid down for such an application. By way of analogy, Article 13(1) (e) of the Court of Appeal (Jersey) Law 1961 provides that on appeals against interlocutory decisions leave can be sought from either the Court below or from the Court of Appeal but Practice Direction CA05/1 provides:–

“Appellants in civil appeals who require leave to appeal must henceforth first make the application to the lower court …”

The Tribunal exists, he said, in order to lessen the burden on the Royal Court and improve access to justice. The Royal Court will be assisted by its views on whether leave should be granted and Voisins should have made its application for leave to the Tribunal in the first instance, and only renewed that application to the Royal Court if the Tribunal had declined to grant leave. He submitted that failure to follow this proper procedure was an additional factor to be considered in determining whether to grant leave.

8

Mr Kistler also stressed the importance of finality in proceedings especially from the point of view of employees for whom the awards made by the Tribunal would be of great importance, in many cases representing funds upon which they have to rely to live.

9

Mr Preston relies upon the express wording of the Employment Law which imposes no time limit for the making of an application for leave and which gives Voisins the right to apply for leave either from the Tribunal or from the Court. It is simply exercising its right to apply to the Court.

10

It is for the Superior Number to make Rules of Court pursuant to Article 13 of the Royal Court (Jersey) Law 1948 and for the Bailiff to give Practice Directions under Rule 20/11 of the Royal Court Rules but I agree that finality in litigation is important and the Court should take into account delay in the bringing of an application for leave, if that application is not brought within a reasonable period. In my view 28 days from the decision is a reasonable period and if the application is brought after that time, then the Court should apply the same principles that it does to applications for leave for the enlargement of time for appeals under the Court of Appeal (Civil)(Jersey) Rules 1964, Rule 16(1), and as laid down by the Court of Appeal in Barker v Barclays Bank Plc [1989] JLR Notes 2B, namely that in the exercise of its discretion, the Court will take into account factors such as the extent of the delay, any explanation for it, the prospects of the success of the appeal and the risk of prejudice to the other party to the proceedings.

11

In this case, the delay has been short, and although no explanation has been provided by Voisins for that delay, there is merit in the appeal for the reasons set out below and accordingly I grant leave.

Test on Appeal
12

The ambit of an appeal on a question of law was considered in Voisin v Brown [2007] JRC 047 where Birt, then Deputy Bailiff, said this at paragraphs 18 and 19:–

“18. The wording of Article 94 mirrors that of the equivalent English legislation which confers a right of appeal on a question of law from an Employment Tribunal to the Employment Appeal Tribunal. Mr Preston accepted that Harvey on Industrial Relations and Employment Law set out the position accurately at Division T, para 1630:–

‘An appeal from the employment tribunal lies only on ‘a question of law’ (ETA 21(1)). Accordingly, the EAT will have no power to interfere with a tribunal's decision unless it can be shown: (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 ….”

19. I would add that there has been some disagreement in the English courts as to whether the alternate formulation of ground (c) “…or alternatively, was one which was obviously wrong …” is accurate. Thus May LJ in Hereford and Worcester County Council v Neale [1986] IRLR 168 at 174 said that neither the EAT nor the Court of Appeal should disturb a decision of an employment tribunal ‘unless one can say in effect: “my goodness, that was certainly wrong”. On the other hand Lord Donaldson MR in Piggot Bros & Co Limited v Jackson [1991] IRLR 309 at 312 preferred to stay with the test that the decision of the tribunal must be perverse, in the sense that it was one which no reasonable tribunal, directing itself properly on the law, could have reached. We do not need to resolve this conflict today as Mr Preston's main argument is that the Tribunal erred in law” .

13

That disagreement as to ground (c) would appear to have been resolved in Luxicabs Limited v Baal [2011] JLR 208 where the Court held that if a party considered that the Tribunal had erred on the facts, he could only appeal if he could contend that the Tribunal's decision was Wednesbury unreasonable (i.e. so unreasonable that no reasonable tribunal could have made it) in which event it would become a matter of law. Both counsel agreed that this was the test to apply under category (c).

The facts
14

The department store at Voisins includes a number of concessions which are managed by staff employed by Voisins. The basic facts (I will go into more detail in due course) were described by the Tribunal in its judgment in this way:–

“2. The basic facts of this case were not disputed. The Applicant had been employed by the Respondent...

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3 cases
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    • 10 July 2019
    ...v Northern Ireland Health Services Board [1957] 1 WLR 594. Ridge v Baldwin [1964] AC 40. Voisins Department Store Ltd v Soares [2014] JRC 004. Boardman v Nugent Care Society [2013] ICR 927. Janciuk v Winerite Ltd [1998] IRLR 63. Kerslake v North West London Hospital NHS Trust [2012] EWHC 1......
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    ...v AE Drayton Services Ltd [1988] AC 344. Employment Rights Act 1996. Voisin v Brown [2007] JLR 141. Voisins Department Store Ltd v Soares [2014] JRC 004. Luxicabs Ltd v Baal [2011] JLR 208. Abernethy v Mott, Hay and Anderson [1974] ICR 323 (CA). Foley v Post Office [2000] ICR 1283. Cresswel......
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    ...Services Ltd [1987] 3 All ER 974. Meek v City of Birmingham District Council [1987] IRLR 250. Voisins Department Store Limited v Soares [2014] JRC 004. UCATT v Brain [1981] ICR 542. Employment Protection (Consolidation) Act 1978. Employment Tribunal-application for leave to appeal against ......

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