Jersey Employment and Discrimination Tribunal

Transcription

1 Jersey Employment and Discrimination Tribunal Employment (Jersey) Law 2003 NOTIFICATION OF THE TRIBUNAL S JUDGMENT Applicant: Mr Markus Parker Respondent: Ecoheat Jersey Ltd Date: 22 May 2017 Before: Mrs Hilary G Griffin, Deputy Chairman

2 THE TRIBUNAL S JUDGMENT THE DECISION 1. The Appellant applied to the Tribunal for leave to appeal to the Royal Court against a decision of the Tribunal ( Judgment ) following a full hearing which took place on 17 November 2016 and was chaired by Deputy Chairman, Advocate C Davies. LAW 2. Article 94 of the Employment (Jersey) Law 2003 ("Law") sets out the requirements for a party to appeal a Tribunal decision to the Royal Court.: 94. Appeals (1) A person aggrieved by a decision or order of the Tribunal may, on a question of law only, appeal to the Royal Court by applying to the Tribunal for leave to appeal. (2) An application to the Tribunal for leave to appeal must be made before the end of the period of 28 days beginning with the date of the Tribunal's decision or order. (3) However, the Tribunal may make an order varying the 28 day period (a) of its own motion; or (b) on application by the person aggrieved, which application may be either within the twenty-eight day period or after its expiry

3 3. Therefore, in order to be granted leave to appeal, an appellant must: a) submit the application to appeal within 28 days from the date of the Tribunal s decision; and b) ensure that the appeal is based on a question of law. 4. A question of law will involve only instances where it can be shown that: a) the Tribunal misdirected itself in law or misunderstood the law or misapplied the law; or 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 alternatively, was one which was obviously wrong. [Voisin v Brown 2007 JRC 047; Voisins Department Store Limited v Soares [2014] JRC 004]. 5. This is the first time that the Tribunal has considered whether to exercise its discretion under Article 94(3) of the Law and grant leave to appeal outside the statutory time limits. I therefore looked to English case law involving cases where appellants sought to appeal to the Employment Appeals Tribunal ( EAT ) outside the relevant time limits. The EAT Rules are similar to those set out in Article 94 of the Law and were referred to in the Royal Court case of Voisin v Brown 2007 JRC In the case of Sian v Abbey National plc [2004] ICR 55; [2004] IRLR 185, the then President, Burton J said about the discretion to extend time: 19. I turn then to the exercise of the discretion. This discretion is to be exercised sparingly.

4 7. The leading English law authorities on this issue were considered and summarised in the case of Muschett v Hounslow London Borough Council [2009] ICR The principles which emerge from all the relevant authorities were helpfully summarised as follows in the recent EAT case of J v K & Anor UKEATPA/0661/16/MM: a) both the public interest and the interest of the parties are best served by there being certainty as to, and finality of, legal proceedings; b) in general no distinction is to be drawn between the unrepresented litigant and those who enjoy representation; c) the Tribunal is stricter in the approach to time limits relating to an appeal than other courts and tribunals might be in relation to time limits at first instance where there is yet to be a hearing of the case; d) the adherence to the time limit is fundamental and compliance with it is essential (Woodward v Abbey National plc (No 2) [2005] ICR 1702); e) the time limit will only be relaxed in rare and exceptional cases, for there is no excuse, even in the case of an unrepresented party, for ignorance of the time limits (United Arab Emirates v Abdelghafar [1995] ICR 65) and litigants, whether represented or not, must not expect the procedure to be re-written so as to accommodate their own negligence, incompetence or idleness (Jurkowska v HLMAD Ltd [2008] ICR 841); f) it is unlikely that there will be any acceptable excuse for failure within the time limit to assemble and submit the stipulated suite of documents, which should accompany any appeal, or for failure to explain their absence; 1 The cases referred to in Muschett were Kanapathiar v Harrow London Borough Council [2003] IRLR 571; United Arab Emirates v Abdelghafar [1995] ICR 65; Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111; Woodward v Abbey National plc (No 2) [2005] ICR 1702; Steeds v Peverel Management Services Ltd [2001] EWCA Civ; Chohan v Derby Law Centre [2004] IRLR 685. Subsequent to Muschett itself was the Court of Appeal case judgment in Jurkowska v HLMAD Ltd [2008] ICR 841 and O Cathail v Transport for London [2012] IRLR 1011.

5 g) any application for an extension of time is an indulgence requested from the Tribunal and it is unlikely to be granted because of ignorance of the need to comply with time limits or of the need to submit the stipulated documents; h) consequently before extending time the Tribunal must be satisfied that it has received a full, honest and acceptable explanation of the reasons for the delay (Abdelghafar); i) the Tribunal will have regard to the length of delay, although the crucial issue is the excuse for delay, not whether the delay is long or short (O Cathail v Transport for London [2012] IRLR 1011), and any evidence of procedural abuse or intentional default is likely to result in the indulgence being refused (Abdelghafar); j) an excuse may not be sufficient unless it explains why a Notice of Appeal and the requisite accompanying documents were not lodged during the entirety of the period of the time limited for appealing because those who submit or attempt to submit appeals towards or at the end of the relevant period run the risk that something may be wrong and there by not be time to correct it (O Cathail); k) consequently, the whole period will need to be examined before any indulgence can be granted; l) this does not mean the ability to lodge the correct documents at any time during time period for appeal will necessarily be fatal to granting the indulgence because an analytic approach should be taken to that period and the questions to be asked are (Abdelghafar): i. what is the explanation for the default? ii. does it provide a good excuse for the default? iii. are there circumstances which justify the exceptional step of granting an extension of time? m) prejudice may be a factor, to be considered along with other factors;

6 n) if a legal adviser has been at fault that might be a consideration to be considered along with others (Chohan v Derby Law Centre [2004] IRLR 685); o) the merit of the proposed appeal may be a consideration (Aziz v Bethnal Green City Challenge Co Ltd [2000] IRLR 111). FACTS 8. At the Hearing on 17 November 2016, the Appellant submitted that he was unfairly dismissed by the Respondent and that he should receive compensation for unfair dismissal and a redundancy payment. According to the Judgment, the Appellant withdrew a claim for notice pay (wrongful dismissal) at the beginning of the Hearing, although the Appellant denies this and submits in his appeal that he should be granted notice pay. 9. In its Judgment, the Tribunal rejected the Appellant s claims and concluded that the Appellant resigned from his employment. He was therefore not entitled to any compensation or redundancy payment. 10. The Judgment was signed and dated by the Deputy Chairman on 18 January 2017 and the Tribunal sent the Judgment to the parties by on the same day. The Tribunal also sent a hard copy of the Judgment to the parties by post on 19 January 2017, which included a date stamp stating that the Judgment was sent to the parties on 19 January The copy of the Judgment which was sent to the parties on 18 January 2017 was signed but did not include a date stamp. 11. The Tribunal s covering letter gave the following information to the parties: An appeal to the Royal Court can only be made in accordance with Article 94 of the Employment (Jersey) Law This means that you can only appeal against the Tribunal's

7 decision on a question of law. If you intend to appeal please inform the Registrar to the Tribunal, in writing, before the end of the period of 28 days beginning with the date of the Tribunal's written judgment." 12. Given that the hard copy of the Judgment included a date stamp of 19 January 2017, I concluded that in the circumstances I should take, the latter of the two dates (ie 19 January 2017) as the date on which the Judgment was sent to the parties in accordance with Article 94(2) of the Law. This being the case, the deadline for the Appellant to submit an application for leave to appeal was 15 February 2017 ( the Deadline ). 13. The Tribunal received the Appellant s application for leave to appeal ( Application ) on 16 February Consequently, the Appellant submitted the Application one day outside the 28 day time limit as set out in Article 94(2) of the Law and the Registrar therefore rejected the Application. 14. The Appellant has now requested that the Tribunal exercise its discretion under Article 94(3) of the Law and grant him leave to appeal notwithstanding the late filing of the Application. Based on the circumstances, I did not consider it to be necessary or proportionate to convene a further hearing in order to hear evidence under oath from the Appellant. 15. The Appellant submitted that the reasons for his default were: a) he and JACS miscalculated the Deadline; and b) he was awaiting the outcome of his former colleague s Tribunal claim before deciding whether or not to seek to appeal against the Judgment.

8 CONCLUSION 16. Having considered all the information provided to me by both the Appellant and by JACS, I make the following findings of fact: a) the Appellant miscalculated the date by which he should have filed the Application. He failed to include in his calculation the date on which the Judgment was sent to the parties (ie 19 January 2017); b) the Appellant purposely chose to delay filing the Application until the end of the 28 day time limit in order to await the outcome of his former colleague s case; c) the Appellant first visited JACS regarding his appeal on 13 February 2017, only two days before the Deadline. Other than arranging the meeting with JACS a few days previously, the Appellant made no attempt to progress the Application before 13 February 2017; d) the adviser at JACS calculated the Deadline based on the Judgment being sent to the parties on 18 January The adviser did make a calculation error but, as it happens, gave the correct Deadline if one bases the calculation on 19 January The Appellant therefore did not suffer any prejudice in this regard. 17. Based on the facts and in the light of the guidance provided by the relevant case authorities, I do not consider the Appellant to have provided a good excuse for the default. The statutory time limit exists to ensure certainty and finality in legal proceedings. It would only be in the most exceptional of circumstances that the Tribunal would exercise its discretion and extend the time limit to enable an appellant to file an application for leave to appeal beyond the 28 days provided under Article 94(2) of the Law. These were not exceptional circumstances.

9 18. Furthermore, I noted the guidance in Aziz and, having read the Appellant s grounds for his proposed appeal, I was unable to identify any appeal point on a question of law. The grounds for the Appellant s proposed appeal arise entirely out of a refusal on the part of the Appellant to accept the Tribunal s findings of fact. Put quite simply, the Appellant does not agree with the Tribunal s decision. However, simply disagreeing with the Tribunal s decision does not entitle a party to appeal the decision to the Royal Court. The Royal Court is confined to hearing appeals on points of law only. Therefore, in the absence of any point of law in the grounds of appeal, the Application will necessarily fail. 19. In view of the above, I am satisfied that the circumstances of this case do not justify the exceptional step of exercising my discretion because: a) the Appellant failed to submit the Application within the requisite statutory time limit; and b) the Appellant s grounds of appeal do not relate to a question of law. 20. The Appellant s Application is therefore rejected. Signed: Mrs H G Griffin, Deputy Chairman Dated: 22 May 2017 Judgment and Reasons sent to the parties on 22 May 2017 For the Tribunal Office