Please note one of these cases (the Guernsey one) uses explicit language (reported from the judgement). Therefore, please do not read this if the use of explicit language offends you.
As mentioned earlier, case law is few and far between at the moment. There have not been many judgements released over the last quarter, but here is a summary of those released at the time of writing.
Jersey – Mrs R Grzes vs La Siesta Limited – Unfair Dismissal and Unpaid Notice and Wages – Dismissed
The applicant, a waitress, claimed unfair dismissal, notice pay and unpaid wages during her employment. The respondent denied the applicant was dismissed but resigned and counterclaimed for notice pay because the applicant resigned in breach of contract.
At an interim hearing (curiously, no judgment available), the Tribunal held the applicant had indeed resigned, and the respondent had waived its right to notice, and duly struck out the applicant’s claim for unfair dismissal and notice pay along with the respondent’s counterclaim for notice.
The full merits hearing dealt with unpaid wages alone. The tribunal held the burden of proof was on the applicant and that she did not discharge this burden to prove her claim. Further, if she felt that she was underpaid, she should have spoken to the respondent whilst employed.
Whilst, strictly speaking, failure to assert breach of contract is no bar to pursuing one (the limitation period is ten years), the case is a good reminder of the dangers of having to argue ‘who ended the employment’ as, in the absence of written records, the respondent was put to the costs and inconvenience of attending court to argue its word against another’s.
Further, whilst it is heartening to see the burden of proof as regards alleged contractual claims falling on the right person, keeping accurate records of hours for roles where hours vary is a sure-fire way to head off alleged unpaid wages, and although not applicable in this case, employers should remember, where hours are such that rate of pay could fall beneath minimum wage, strict obligations and/or penalties re record keeping of hours apply.
Jersey – Mr M Le Lay vs States Employment Board – Out of Time Constructive Unfair Dismissal – Dismissed
The applicant (who was represented throughout the whole period of the dispute by his lawyer) resigned on 16 December alleging the respondent had failed to deal with concerns the applicant had with another employee. The respondent offered him a ‘cooling off period’ asserting surprise at the applicant’s resignation.
After a delay over the festive period, on 16 January 2015, the applicant finally re-confirmed his resignation and asserted constructive unfair dismissal and submitted a data subject access request (“DSAR”). The applicant was ill through the duration of his notice period and the respondent paid him in lieu of the notice (date unknown), which would have ended on 9 April 2015.
The applicant submitted his tribunal claim on 4 June 2015, five months after his resignation, and an interim hearing was convened to hear whether the claim was out of time for being outside of the 8 weeks’ limitation period for claims of this nature.
The respondent argued the claim was out of time whether one took the effective date of termination (“EDT”) as being the initial resignation date, the re-affirmation of resignation date or the date notice would have expired had the payment in lieu of notice not been given (which is not correct law anyway).
The applicant offered three reasons for the delay:
- His lawyer advised him to wait for the DSAR before filing his claim; and
- Both he and his lawyer were busy; and
- He was unwell at the time suffering from stress.
The Tribunal determined the EDT to be the time of the applicant’s initial resignation date (16 December) and held the ‘cooling off period’ did not affect the EDT. Applying the reasonably practicable test, the Tribunal also held the alleged obstacles to filing to be unreasonable and, therefore, the applicant’s claim for constructive unfair dismissal was struck out by the Tribunal.
This case is not new law: one would expect a lawyer to know that waiting for discovery or being busy is not reasonable obstacles to filing, and although medical conditions can constitute reasonable grounds for failing to file, the evidence here must have not supported that contention here. What is unusual is the inconsistency in judgments as, unlike this case, several other Tribunal judgments have visited the failings of an advisor on the respondent and held an applicant should not be denied justice because his advisor was in the wrong. It is difficult to see any distinction and LAW hopes this case marks the recognition that, as pitiful as the employee’s situation is, his recourse is against his adviser, not his former employer.
Guernsey – Pagliarone vs Immuno Biotech Limited – Unfair Dismissal and Sex Discrimination – Upheld in part
The applicant was originally employed as personal assistant to the CEO, Mr N of a company offering drugs to cancer sufferers. After one week’s employment she was reassigned into an administrative/client supporting role. She successfully passed her probation period but was summarily sacked within three months without being given any written reason for dismissal, although the applicant attributed her dismissal to the fact she had raised concerns as to the legality of herself and other staff administrating injections to clients.
The applicant claimed sex discrimination and automatic unfair dismissal (she did not have sufficient qualifying service to claim unfair dismissal) and adduced witness and documentary evidence alleging Mr N harassed her in his verbal and written comments which included:
- “You’ll need to help me do everything on this list. It took the useless bitch before you three fucking months to get an advocate on board”;
- “Well, we can’t hire her as she is ugly and overweight and I only employ beautiful women”;
- “How can we hire her, did you see what she was wearing and the size of her, we can’t have someone on the front line representing GcMAF looking like that”
- “Fucking stupid woman”;
- “You’re fucking useless, if I need anything done in this place I am better off doing it myself”; and,
- On application forms : “Red lipstick, heels, tattoos, do not approve; wearing a dress, excellent”.
Further in a heated altercation, the applicant claimed Mr N said, “Everybody hates you, Beate, Jessica, Lorraine and I all hate you. You are shit at your job and are the most unorganised useless fucking woman I have ever met. Your mother-in-law is a horrible fucking woman and we want nothing to do with her either. If I had my way you would have been sacked in the first fucking week. I want you out now, get the fuck out of my office now, you best resign now. I don’t care what you do, I can treat you how I like; I’d give you 12 months’ pay if you get out of my office now. No one wants you here, you either resign or I will sack you”.
The respondent denied any sexist culture and stated that the idea that there was any open hostility to woman was a total variance with reality as demonstrated by the fact the office employed more women than men.
The respondent submitted that in its opinion “these complaints were being brought by an embittered and disgruntled employee to abuse the reputation of a good man and a good company”. They stated that the reason for the termination of employment was due to the applicant’s negligence when taking orders, her inability to take instructions, her use of foul and abusive language and that she failed in her duty of care towards their clients.
Mr N said he could not recall the log of events of sexist comments that he was alleged to have said, confirmed that he did lose his temper in the office on occasions and stated “that after 25 years in marketing he might not give the Tribunal the answer it expected in terms of required non-discriminatory practices.”
Applying the test for sexual harassment, the Tribunal found the applicant had endured unwanted conduct related to sex (namely women) which had violated the applicant’s dignity or created an intimidating, humiliating and hostile working environment for the applicant. With no defence available once harassment is proven, the Tribunal concluded that the applicant suffered a detriment which was an unlawful act which constituted a breach of the Sex Discrimination (Employment) (Guernsey) Ordinance 2005, as amended, and awarded £10,500.
The Tribunal dismissed the applicant’s claim for unfair dismissal holding that the applicant had not shown she was dismissed on the grounds of sex and therefore her claim for unfair dismissal failed for lack of eligibility to claim.
This case, perhaps, needs no commentary and is a repost to those who question why the Channel Islands needs anti-discrimination law. What is curious though is that if the applicant had resigned in circumstances of constructive unfair dismissal, she could have argued her dismissal was related to sex and brought herself into the Tribunal’s jurisdiction. Moreover, the case to include protected disclosures/whistleblowing as an exception to the one year qualifying period rule grows – as if the applicant’s concerns as to the legality of injecting very ill people was in good faith, she ought not to suffer loss of livelihood for having the temerity to raise it.
