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.
You seem remarkably calm about it all, almost nonchalant. How come you are not screaming injustice or unfair?
ReplyDeleteBecause that is not the course that a reasonable man would take. The Commissioner has kindly explained in great length his reasoning. So first you take it all in and then you see if and where his reasoning is at fault.
ReplyDeleteWhere I do not agree, I decide if I will just have to agree to disagree, or if there is actually a counter argument which can be made which might cause either the Commissioner or another judge to reach a different conclusion.
If the Commissioner had actually made an error, which by the time you hit the Royal Court is exceptionally rare, then you can appeal and have the verdict overturned.
Now I may not agree that physical location is a determinant of jurisdiction and we can all argue the point till kingdom come but as indicated the law itself says that it does and the Commissioner is required to follow the law to the letter.
The Commissioner did not enact the law and the Commissioner never says whether he agrees with the law or not, for all I know he may agree with me that it is a terrible law, but he is bound by it.
And let's not forget that I have now exhausted all domestic remedies which means that I can go to Strasbourg...
ReplyDeleteAt Strasbourg I can make further arguments such as that the elections which were held to elect the legislative assembly were not compliant with the demands of the Convention and so the Law is not valid... I just happen to have a folder full of research on the non-compliance of Jersey elections with the convention ready from last year.
Every action has more than one purpose.
Who was the Commissioner?
ReplyDeleteJulian Clyde-Smith (former partner to the Bailiff when in practise)
ReplyDeleteCouple of points: first, you appear to have applied for leave to appeal on the grounds that there was no contract between you and Miss Z (the relationship being with Nigel Pearce & Son Jewellers). I'm not sure if Nigel Pearce is an incorporated company, but if it is then this seems to have been a valid point of law. No employer/employee relationship between claimant and respondent (ought to) preclude application of Employment (Jersey) Law 2003.
ReplyDeleteAlso, liability under the Employment (Jersey) Law 2003 does not depend on the physical location of the respondent; it appears only the physical location of the claimant is relevant: was Miss X working in Jersey for a legal person named Y (the Respondent)?
From the text posted above, it also appears J C-S side stepped the "Freeman" argument and said, according to our law, the Tribunal had jurisdiction because Miss Z "created" it.
It would, I think, be worthwhile reviewing the case law on "Freeman" style arguments. The US v Wesley Snipes is quite interesting to read. Wesley Snipes lost a fair amount of property, apparently, to challenging the validity of mortgages etc. I have not said this to undermine your interest in the "Freeman" arguments but simply to suggest that you need to be very careful in the way that you frame and present them as the average judge is not likely to want to entertain a challenge to his jurisdiction lightly.
Well I applied on the grounds that there was no contract whatsoever, as she would never agree to any offer that was ever put to her. But that if they were going to imply a contract then it should be with Jersey Online Traders Ltd t/a Nigel Pearce & Son, Jewellers as only that person had ever given any monies to Miss Z (no consideration, no contract).
ReplyDeleteThe Commissioner agreed that the tribunal was wrong, but simply said that as the evidence that was before them allowed the possibility that I was the employer (in other words Miss Z's testimony) and as I gave no testimony of my own at the hearing, he could not intervene.
Now we go back to the tribunal on the following points:
a) to decide if she was dismissed or walked out (she walked out but claims she was felt forced to walk out and so was 'constructively dismissed').
b) the identity of the respondent still refers to a 'non-person' namely Darius Pearce t/a Darius Pearce Jewellers and/or t/a Jersey Online Traders. Neither of these are actually registered business names (the shop sign says Darius Pearce and Jersey Online Traders Ltd is the company name but all shop receipts and internet trading is in the name Nigel Pearce & Son, Jewellers) so it will be interesting to see how they get out of having compounded their error as to the identity of the respondent.
c) The incompatibility of the statements of Miss Z to the Employment Tribunal and the Social Security Department. Which should now mean that any testimony she now offers should be considered unreliable.
I just think that the Employment Tribunal is there to f*** employers and discourage us from taking people on, but then unemployment is the highest priority for our government.
I am not sure of the current stage of proceedings in the Tribunal, but it is possible that the Tribunal has not in fact decided that a contract exists; it has simply given directions on the assumption that the contract exists.
ReplyDeleteIf that is the case, you may be able to run the no-contract argument before the Tribunal again - as most of the provisions relating to unfair dismissal talk in terms of contracts and employers. Indeed, you may be able to apply to strike out the employee's claim on that basis. It very much depends on what has gone before.
The Tribunal often seems to make truly ultra vires decisions. I reviewed CI Fire v Browning not so long ago. In that case, following a previous decision, the Tribunal had assumed to itself the power to prosecute criminal offences.
Personally, I'd leave "Freeman" arguments at home for the time being: the Tribunal has difficulty enough applying the statute and relatively common principles of law let alone anything more novel particularly given its composition as a combination of lay persons and a single legally qualified person.
I can imagine, though, that the aggravation factor associated with a case of this kind is significant.
The full judgement makes interesting reading. What was the reason for moving Miss Z from employment to subcontractor in December 2011? (I presume it had something to do with maximizing her take-home pay or something along those lines?).
ReplyDeleteJ C-S shows his true colors in the last two paragraphs, reference Article 95. He seems to want you prosecuted for alleged false statements.
I am not sure how helpful the "Freeman" arguments were to you on this occasion though I can see your point of view and I can also see hers. I am surprised you spent the time on the matter that you have given that the claim relates to "a relatively small sum in unpaid wages and notice pay" but, if there was a contract of employment and she walked out she would still have to show breach going to the root of the contract on your part to claim damages (as in notice pay etc). The unfair dismissal issue is more complex and is presumably why you have challenged the claim (the Tribunal can hear certain contractual claims and unfair dismissal).
"Every last inch of me shall perish. Except one. An inch. It's small and it's fragile and it's the only thing in the world worth having. we must never lose it, or sell it, or give it away. We must never let them take it from us.”
ReplyDelete“It was my integrity that was important. Is that so selfish? It sells for so little, but it's all we have left in this place. It is the very last inch of us...but within that inch we are free."
Principally it was because I have philosophically concluded that the employer/employee relationship is that of master/slave (which is a negative relationship of dependence) and that henceforth I only want to be an enabler.
ReplyDeleteThere is nothing wrong with master/slave, it just depends on who the master is. Anyway, hope the problem gets sorted amicably. You don't need aggravation like this when you're running a business.
ReplyDeleteAll I know is that I do not want to be the master of anyone, that is my choice, so that is how it will be, because I am slave to no man.
ReplyDelete