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Tuesday, 20 November 2012

The judgement is handed down

Well the judgement has been finalised, I did not win (yet), but I have to say that the Royal Commissioner has once again given a fair judgement which I cannot really argue with, other than to say that the Law is wrong to limit appeals simply to points of law but allow erroneous conclusions to stand simply because they can be arrived at.

It is this matter which will be the point of appeal to the European Court of Human Rights.

To sum up the judgement the Commissioner basically says, "it is your own fault for refusing to turn up to the hearing".

The highlights of the judgement are as follows (name of applicant has been changed to Miss Z, as a courtesy):

3. Article 94 of the Employment (Jersey) Law 2003 (“the Employment Law”) provides that an appeal  on a question of law only shall lie from a decision of the Tribunal to the Court with the leave of the Tribunal or of the Court. The Tribunal denied leave in this case. 
4. It was held in Voisin v Brown [2007] JLR 141 at page 143 that an appeal on a question of law will arise where it can be shown that (a) the Tribunal had misdirected itself in law or misunderstood or misapplied the law; (b) there was no evidence to support a particular conclusion or finding of fact; or (c) the decision was either perverse, in that it was one which no reasonable tribunal directing itself properly on the law could have reached, or was obviously wrong.
24. Mr Pearce seeks leave to appeal against the decision of the Tribunal on the grounds as set out in his document e-mailed to the Assistant Judicial Greffier on 24th October 2012 as follows: -
(ii) In order to claim jurisdiction, the Tribunal must establish “beyond all reasonable doubt” the existence of a contract. 
That is clearly incorrect – the standard of proof is that which applies in all civil proceedings, namely the balance of probabilities.

The point of contention here will be that the Tribunal must establish its own right to sit beyond reasonable doubt under Article 8 of the European Convention, even when the subsequent proceedings may be decided on the balance of probabilities.
(iv) Mr Pearce asserted that Miss Z had sworn a statement to the Social Security Department that she was employed by Nigel Pearce & Son Jewellers. 
This statement was not produced either to the Tribunal or indeed to this Court and therefore no conclusions can be drawn from it.
So it is for me to bring an action to the Royal Court against Miss Z for committing perjury or for misleading the tribunal.
29. Mr Pearce challenged the jurisdiction of the Tribunal on a number of grounds including that he was not “a member of the Island of Jersey and its dependencies” and therefore he was not subject to its rules and regulations. To become subject to such rules and regulations required, he said, a voluntary act on his part. He told me it was for this reason that he had not attended the hearings as to do so would have given the Tribunal jurisdiction over him. He had attended the application for leave as “a child of God” whose jurisdiction was the only one he recognised. At the same time he confirmed that he lived in Jersey.
30. Articles 76 and 86 of the Employment Law are clear as to the Tribunal’s jurisdiction in this matter. Article 101 (1) provides that the Employment Law shall only apply to employment “where the employee works wholly or mainly in Jersey”. It was not in dispute that Miss Z worked wholly in Jersey. 
So there we have it, physical location is a determinant of jurisdiction as far as the Royal Court is concerned in the case of the Employment (Jersey) Law 2003
31. Mr Pearce informed me at the hearing that he declined to complete the form JET2 as requested by the Tribunal because, having seen the error as to the identity of the respondent in the letter from the Tribunal (there was no such error in the actual complaint which he also received), he wanted the time period for the filing of complaints to expire, thus preventing Miss Z from bringing a further complaint. Even after that time had expired, he made a conscious decision not to appear before the Tribunal or to produce any of the evidence on which he now wishes to rely. In conducting himself in this way, he cannot now complain about the decision reached by the Tribunal on the evidence that was actually before it.