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Sunday, 10 March 2013

JACS serves neither employee or employer but tyranny

So the Employment Tribunal has come and gone and having taken the advice of my legal friend I have been fleeced of some £487.50 by a highway-woman with the willing assistance of JACS and the Employment Tribunal.

Of course it has cost the taxpayer some £10,000 to rob me of £487.50 so I'm sure that that is your money well spent.

However the process did drag on for some eleven months, quite unnecessarily but I was dealing with an incompetent, not only an incompetent applicant but an incompetent JACS.

The standard procedure for resolving disputes, that would be the procedure adopted by a reasonable man is quite simple. You write a letter stating your grievance in full, as part of stating that grievance a sum expressed in terms of legal tender that is required to settle the matter should be included. The respondent (the person who is responding to your grievance) should then reply to you and state any areas of your grievance which he disagrees with, and which areas of your grievance he agrees with, make any counter grievances and offer any solutions, additional matters to consider and in all likelihood a counter-offer to your claim.

It should be in the interests of both parties to reach agreement without recourse to a tribunal.

This process is very much mirrored in the Court process and in all proceedings of natural justice.

The trouble is that it is not in the interests of anyone else for agreement to be reached to quickly - JACS need work to justify their existence, the Tribunal is on £2,000 per session. If you have lawyers of course then the £500 per hour for Court work or £350 per hour for out of Court work

The reason that this process dragged on for 11 months was because of the failure of the applicant to properly adduce their case and at no point was the value of the claim calculated.

It remains my assertion that this failure is a breach of natural justice.

This assertion was rejected by both the Employment Tribunal and the Royal Court but just in case the applicant did not accept the offer of a full settlement I submitted the following application to the tribunal

APPLICATION FOR DISMISSAL OF PROCEEDINGSThe non-compliance of the case before the tribunal with the demands of Natural Justice and Article 6 of the European Convention on Human Rights. 
When a case is submitted before judicial (or quasi-judicial) proceedings there are certain requirements in order that the proceedings comply with the demands of Natural Justice and therefore Article 6 of the European Convention on Human Rights. 
Natural Justice comprises three basic rules: 1.    The hearing rule demands that a decision maker must give an opportunity to a person whose interests may be adversely affected by their decision the opportunity to be heard.
 2.    The bias rule demands that the decision maker should be disinterested and/or unbiased in the matter to be decided. Justice should not only be done but be seen to be done. If fair minded people would reasonably apprehend/suspect the decision maker has prejudged the matter, the rule is breached (often referred to as ‘a reasonable apprehension of bias’).
 3.    The no evidence rule means, in essence, that the decision that is eventually made must be based on logical evidence (proven on the balance of probabilities - that is, the alleged behaviour is more likely to have occurred than not).
 It is also important that in making decisions, administrative decision makers: 
·   take into account relevant considerations;
·   do not take into account irrelevant considerations;
·   act for a proper purpose; and
·   that the decision is not unreasonable in the sense that no reasonable
decision maker could have reached such a decision. An administrative decision maker is under a dual duty; to take account of relevant considerations and not take into account irrelevant ones. 
The proceedings to date have contravened Rule 1 of those listed above in the following manners; firstly a case has never been fully disclosed by the Applicant I am still not clear what exactly the claim of the applicant is and the value of the claim has never been submitted forcing me to try and guess the value of the claim, additional evidence has been adduced by the Applicant in advance of the hearing scheduled for the 6th March in the form of a letter which clearly states that the employer was Nigel Pearce & Son, Jewellers and therefore not Darius Pearce as named in the application – had this evidence been adduced at previous hearings then the tribunal might have reached an alternative conclusion. There is still no case adduced to support the claim of the applicant that there was an instance of constructive dismissal, a claim should be adduced in full before the respondent can be expected to respond to it. 
Rule 2 of the list above has been contravened in that the tribunal has not expected the applicant to act in an honourable manner and respond to the advances of the respondent who has three times made offers of settlement to the applicant to which no response has been forthcoming, no discussion has been possible which might have assisted the tribunal to progress matter more swiftly as some points of disagreement might have been concluded outside of a hearing. That the applicant has been allowed to act dishonourably provides a reasonable apprehension of bias on the part of the respondent. 
Rule 3 of the above list has been breached in that the tribunal reached its conclusion solely based on the testimony of the applicant and in a manner that is contrary to all of the evidence adduced by the applicant to support her case. No account was taken of the cessation of Social Security payments, the letter on headed paper from a person other than the respondent, and now further letters from the Social Security department clearly stating the identity of the applicants employer for the period to 31st December 2011. 
On the grounds stated above I apply to the tribunal to dismiss the case.

For the record here is my submission to the tribunal in my 'defence' albeit one against a case which was not properly adduced and therefore one which could not be responded to.

1.    Despite my repeated insistence that I was not an employer, this tribunal found that in the application of Miss Garcia that I was. 
2.    The evidence upon which this finding was based is as follows:
(1)        Miss Garcia’s verbal testimony
(2)        A letter from the director of Jersey Online Traders Limited t/a Nigel Pearce & Son, Jewellers which made an offer of employment which Miss Garcia herself indicates she did not actually comply with, and therefore did not accept, which the tribunal erroneously attributed to Darius Pearce (who is a separate legal person).
(3)        The entries on the bank statements of Miss Garcia which said ‘dariuspearce, salary’ but which the tribunal re-worded as ‘Darius Pearce, Salary’ and erroneously indicated that this was consideration paid by Darius Pearce, when in fact the source bank account was that of Jersey Online Traders Limited. 
3.    The Commissioner of the Royal Court has made two important observations
(1)        That based on the evidence before the tribunal it was possible to reach the conclusion that it did.
(2)        That the tribunal does have the power to add parties to the hearing who should have been named. 
4.    Therefore it is imperative that I demonstrate that Miss Garcia has misled the tribunal and that the tribunal consider whether this was intentional or whether these statements were made recklessly based upon the knowledge and recent statements of the applicant. 
5.    On the th May 2012 Miss Garcia made a statement under oath and on pain of perjury to a sworn officer of the Social Security Department. In this statement she affirms on pain of perjury that her employer was Jersey Online Traders Limited. Yet just a few weeks later she makes a contrary statement to this tribunal that her employer was the natural person Darius Pearce. It is not for me to suggest that she deliberately misled the tribunal although this may have been the case as it may simply be that she has committed perjury or that she really does not know and understand what the situation was/is. In either case I would suggest to the tribunal that her testimony cannot be relied upon and that any future evidence that she might wish to give should be treated as similarly suspect. 
6.    I invite the tribunal to re-review the letter already submitted by Miss Garcia and would draw their attention to the company name which is clearly shown on the letter, as noted by the Commissioner of the Royal Court. 
7.    I append bank statement showing the source of the funds which were deposited into Miss Garcia’s account and draw attention to the name of the account holder. 
8.    Clearly whilst the tribunal could have reached the conclusions it has previously reached that was only enabled by the false and misleading evidence presented by the applicant. 
9.    I draw the attention of the tribunal to Article 95 of the Employment (Jersey) Law 2003 and ask them to consider whether the applicant in making a statement contradictory to a sworn statement made the month immediately preceding the original hearing has not contravened Article 95 (1) (a) (ii) or Article 95 (1) (a) (i) 
95    Offences(1)          A person who without reasonable excuse –
(a)             in proceedings before the Tribunal –
(i)                makes a statement which the person knows or believes to be false, misleading or deceptive in a material particular,
(ii)             recklessly makes a statement which is false, misleading or deceptive in a material particular, or
(iii)           produces or furnishes or causes or permits to be produced or furnished any information or document which the person knows or believes to be false, misleading or deceptive in a material particular; 
10. Should the tribunal decide that the false statements were solely made due to the applicants misunderstanding of the situation then I would ask the tribunal to consider the validity of any and all other testimony that the applicant may make. 
11. I would also remind the tribunal that a contract is only a contract if entered into knowingly and willingly, if the applicant was unaware of the nature of the contract entered into, there was no contract at all. 
12. The Employment (Jersey) Law 2003, as amended defines an employer and an employee in Article 1A (as follows): 
1A      “Employer” and “employee”(1)          In this Law –
(a)             employer” means a person who employs another person; and
(b)            employee” means a person who is employed by an employer.
(2)          For the purposes of paragraph (1), a person is employed by another person if the first person works for the second person under a contract of service or apprenticeship with the second person.
(3)          For the purposes of paragraph (1), a person is also employed by another person if the first person enters into any other contract with the second person under which –
(a)             the first person undertakes to do, or to perform personally, work or services for the second person; and
(b)            the status of the second person is not that of a client or customer of any profession or trade or business undertaking that is carried on by the first person. 
13. It is necessary to consider the period in question in terms of two distinct periods of time, the first being that which concluded on the 31st December 2011 during which period Miss Fiona Garcia was an employee and whilst it was impossible to conclude contractual negotiations with the applicant the legal person Jersey Online Traders Limited to all intents and purposes acted as her employer (paying social security contributions, providing employers’ liability insurance, completing the requirements of the Regulations and Undertakings Law, etc.) 
14. Any claim against Jersey Online Traders Limited in respect of the termination of that employment would have had to have been initiated by the applicant by the 31st March 2012. 
15. The second period deals with the period between the 1st January 2012 and the day of Miss Garcia’s temper tantrum. 
16. I have clearly demonstrated that it was my intent that any contract that was entered into with Miss Garcia, or her sister or that Miss Garcia entered into indirectly to me whilst undertaking the tasks appointed to her sister to complete should solely fall within the purview of Article 1A (3) (b) and any relationship with the applicant be strictly on a client or customer basis. 
17. The elements of a contract are:
(1)        Mutual Assent (offer and acceptance),
(2)        Intention to create legal relations,
(3)        Consideration 
18. As it was not my intention to create any legal relations that would give rise to the status of employer for myself, or the status of employee to the Applicant, there can be no contract which would afford such status. 
19. There was no attempt to define precisely the relationship between the three persons concerned, as the relationship was deliberately left fluid and mutable, as the relationship was not intended to be covered within the Employment (Jersey) Law 2003 there is no legal requirement to do so. The only definition it was possible to make was to define that which it was not. 
20. I was largely working alone in the shop, whilst the applicant and her sister were left to operate the online part of the business in a different room, the applicant was under the direct control and supervision of her sister at all times. 
21. The understanding with the applicant’s sister was that she would be paid a percentage of the turnover of the online business, but that should that fail to match a minimum then additional sums would be given as charitable donations whilst she established herself as a businessperson. 
22. No stipulation was made on the applicant’s sister as to what she did, when or how she did it and whether it was her who did it or another person – this other person included the applicant. 
23. I was mindful in the setting up of the arrangement of the provisions of Article 79 (1) of the Employment (Jersey) Law 2003 
79    Restrictions on contracting out(1)          A provision in a contract (whether a relevant agreement or not) shall be void in so far as it purports –
(a)             to exclude or limit the operation of any provision of this Law; or
(b)            to preclude a person from bringing any proceedings under this Law before the Tribunal,
(c)             except as permitted by this Law. 
24. And I therefore defined the relationship by way of a notice of understanding and intent rather than by way of a contract in order to preclude any possibility that the arrangement might fall foul of this article of the law. 
25. There is no guidance offered by JACS on avoiding the jurisdiction of the Employment (Jersey) Law 2003 and whilst my actions may appear extreme, this is the only method that I could conceive of, I am not a man of Learning, after several weeks of deliberation, by which to remain within the Law and yet not be bound to the Employment (Jersey) Law 2003. 
26. Whilst it is not the place of the tribunal to consider whether the Employment (Jersey) Law 2003 is right or wrong, it is clear to me that it is destructive to employment, prevents job creation and is therefore damaging to the community. 
27. It is a law whose application is unfairly imbalanced and biased favouring employees over employers and therefore creates distrust in a relationship which must be based upon trust. 
28. It is further disadvantageous in the grander scheme of things to both employers and employees ultimately serving the ends of government bureaucracy alone. The foundation stone of its overarching tyranny; a foundation upon which numerous greater tyrannies are ultimately dependent. 
29. Avoiding such oppression is a perfectly legitimate and reasonable aim. It is also the moral duty of any reasonable man to seek to protect others from such tyranny. I would argue that to fail to do so, is to fail in the responsibilities placed upon each man by God himself and all failures of this nature must be accounted for at His final judgement. I, a God fearing man, could not in good conscience act in any contrary manner and thereby knowingly allow the Government to use me as an agent of oppression and thereby cement its tyranny.
However I took the trouble to do the applicant's work for her and tried to adduce her case as follows:
The claims of Miss Garcia are as follows:
That Miss Garcia was employed by an employer from the 26th May 2011 to 2nd April 2012 when she was unfairly dismissed.
Based on an hourly rate of £6.32 at 25 hours per week the full claim is as follows:
For two hours pay: £12.64
For a week's notice: £158.00
For four week's for unfair dismissal: £632.00
Miss Garcia further claims she was not given holiday pay for the period 26th May to 2nd April which is less than one year, but acknowledges that she received payment for the first two weeks in January 2012 when she did not work. Which by my calculation means that she has been overpaid in respect of holidays by 28+25/365 days or 11.78% of two weeks or 1.65 days or 8.25 hours. Which would make a deduction of £(52.14). Records also show that two week's paid leave were taken in 2011 which would make a further deduction of £(316.00)
So the total value of the claim is: £12.64+£158+£632-£52.14-£316 = £434.50
I therefore offer this full amount in settlement.

It is perhaps unnecessary to point out that the Applicant had in fact been overpaid by more than two weeks prior to bringing her claim.

So the day of the tribunal arrived, the applicant had not responded to my offer and I simply asked the tribunal why we were there. Advocate Santos-Costa kindly pointed out to the Applicant that if she did not accept the offer then they would be required to reduce the final claim because the settlement had already been offered.

JACS was called up and negotiations proceeded, Miss Garcia claimed she was paid £6.50 per hour rather than £6.32 and even though that did not compute mathematically with the amount she had received I did not argue but paid over the £487.50.

In the interim however the JACS officer bought me a document of settlement to sign, which clearly stated that the dispute arose from her employment, when I asked for the wording to be changed as the applicant was never my employee she stormed out and called the tribunal in. Apparently the JACS officer is not competent to change the wording on standard forms to suit the individual settlement (which would simply have been the addition of 'alleged' before contract of employment). And the tribunal were called back in, however as there was agreement between the parties there was very little they could do to proceed.

Why did they want me to admit a 'contract of employment', well quite simply a contract of employment is their ticket to rob you of taxes, social security and to tell me off for not doing all the things the Employment Law says you must do if you employ someone.

The lesson here for employees though is that you should try to resolve matters with your (alleged) employer prior to bringing a case. I know of cases where RBC employees have been given three months additional severance pay because this cost is a lot less than paying a lawyer to represent them at a tribunal hearing.

Going to the tribunal has negative results for an employee - you gain a reputation as a troublemaker and a number of application forms now ask whether you have ever been a party in a tribunal case (including the States of Jersey) and therefore you will have difficulty getting another job unless you commit fraud and lie. You have to ask yourself is stealing £487.50 worth a life on benefits?

The tribunal has negative results for Jersey - no one is employing unnecessarily, you are likely to find yourself laid off within the first six months and many jobs are being seconded overseas.

Were you in the UK then your local political party would be able to assist you in matters such as these, just one of a number of benefits we in Jersey miss out on because the Civil Service does not want things resolved quietly and cost effectively when they can be wasting tax payer money on not providing the same service.

Reform Day is September 28th, it is time we had a real political party in Jersey.