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Wednesday, 13 February 2013

Side-stepping the Employment Law

In deliberation 
So we are soon to go back to the Employment Tribunal. I am now clear on what exactly it is that has already been established, namely that the Employment Tribunal does have jurisdiction.

What is next to be determined is whether the applicant was an employee or not and who exactly the employer was. I shall also be seeking to show that the applicant has committed perjury and/or misled the tribunal and have requested that they order the production of the sworn statement made to the Social Security department.

I have been reviewing the judgement in the matter of an application by Darius Pearce and trying to see where I allowed the Commissioner to misinterpret the facts of the case before him or perhaps I even confused him because of my unpreparedness.

I was terribly unprepared, which is never a wise move but I had misunderstood the purpose of an application for leave to appeal and what it entailed, a rookie mistake but you can only learn from your errors. I also had missed the relevant part of the Royal Court Rules 2004 during my research which meant that my appeal would fail but I am now that bit more knowledgeable.

Of course they will not want to have so obvious a means of side-stepping the law which is the source of a substantial chunk of government incomes and so widely hated in the Island.

It seems to me that the Commissioner was seeking to define something fixed, whereas the actual relationship as defined by myself was something which was intrinsically mutable and that way very much by design. Whereas a standard contract of employment defines in great detail what is, I merely sought to define what is not, namely that it is not anything that is referred to in the Employment (Jersey) Law 2003.

The best analogy is to ask you define what it is to be human, it is a more complicated process than it first appears, it can be many things at the same time, in fact it is far easier to describe what is not human than what is.

So the first point is that if there is no contract then there is no employment, but if there is a contract (either express or implied) then it must be a contract where one party is a customer of the other. So in my case I was the customer purchasing the services of my alleged employee, rather than an employer.

One of the key points here is that if a person is contracted to execute a service personally or there is specification of how and when it should be done then the likelihood of a Court finding that a person was 'employed' is increased. A contract which does not specify, time, place, person actually undertaking the work etc., is clearly more likely to be regarded a contract on a customer basis.

Of course a Court must consider the intentions of the parties when the contract is formed. A contract can only be entered into knowingly and willingly, so I cannot see how they can prove on the balance of probabilities that I intended to enter into a contract which would fall under the auspices of the Employment Law when my clear intent and focus was that it should not - but let's see what happens.

Now that they have established jurisdiction I have duly complied with the process and submitted the necessary evidence.

I have reviewed the previous cases and all I can say is that this will be breaking new ground.