"1.4 Contract of Employment
The Tribunal finds that Mr Huet was not given a copy of his contract signed on the 2 May 2005 as required by Article 3 of the Law. This constitutes an offence under Article 9 of the Law punishable by a fine. However, as this appears to be an oversight by Ms Keadall and not a deliberate failure to comply with the Law and that this is a new offence under a relatively new law, the Tribunal have decided to fine the respondent the sum of £100 only for this offence. The Tribunal, in deciding upon this amount has taken into consideration the size of the Respondent's business and the overall awards made against it in this judgment. It should be noted that the Tribunal is empowered to levy a fine of up to £5,000 for this offence".
This judgement of the Tribunal does not explain the basis upon which it claims to have power to prosecute, convict and fine offenders under this Article.
As a statutory body, the Tribunal only has the powers granted to it under the Law or other legislation. A power to prosecute, convict and fine offenders for offences created under the Law would have to be given expressly and unambiguously. There is no such power vested in the Tribunal within the Law, and I was not made aware of any other legislation under which the Tribunal is so empowered. Miss Milner drew to my attention Article 89 of the Law, dealing with procedure, as possibly providing the basis upon which the Tribunal might seek to justify its position. It is in the following terms:-
"89 Procedure
(1) The Tribunal shall have, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in the Royal Court and, without limiting the generality of the preceding provisions of this Article, may -
(a) issue a summons to any person (including a party to the proceedings) requiring the person to appear at the time and place mentioned therein to testify to all matters within the person's knowledge relative to the subject or proceedings before the Tribunal, and to bring with him or her and produce any document, book or papers that the person has in his or her possession or under his or her control relative to such subject;
(b) administer oaths and examine any person on oath, affirmation or otherwise; and
(c) require a party in writing to furnish to the Tribunal a written answer to any question if it considers -
(i) that answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and
(ii) that it would be likely to assist the progress of the proceedings for that answer to be available to the Tribunal before the hearing,
and appoint the time within which the answer is to be furnished.
(2) In this Article "document" includes information held in electronic form".
However this Article merely gives the Tribunal all of the procedural powers that are vested in the Royal Court that are necessary and proper for the due exercise of its existing jurisdiction. It does not give the Tribunal the jurisdiction to prosecute, convict and fine offenders.
By way of contrast, the Tribunal and its officers are given the power under the Law to make or impose financial awards and penalties, other than for offences, namely under Article 24(2) (failure to allow access to records), Article 27 (enforcement notice for payment of minimum wage), Article 29 (non compliance with enforcement notice) , Article 33 (awards in respect of a detriment), Article 54 (payment of un-notified deductions) , Article 77 (awards for unfair dismissal) and Article 88 (awards in respect of non observation of terms and conditions). However these articles set out the powers given to the Tribunal and its officers respectively expressly and unambiguously. If such awards or penalties are made or imposed, they are recoverable before the civil courts and of course do not constitute a criminal conviction for an offence.
In conclusion, there can be no doubt that the Tribunal has no power to prosecute, convict and fine offenders for offences created under the Law. I have to say that I find it difficult to understand how the Tribunal assumed to itself the powers of a criminal court, which it must have done without first taking the precaution of obtaining advice from the Attorney General over whose exclusive jurisdiction it has impinged.
I therefore declare that the Tribunal had no power by its decision of 29 th November 2007 to fine the representor £250.
Remaining Grounds of Appeal
Although it is not necessary for me to consider the remaining grounds of appeal, a number of observations arise immediately from the Tribunal's reasons set out in paragraphs 27 and 28 of its decision (set out above) for imposing a fine. The relevant provisions of the Law are as follows:-
(i) Article 3(2)(9)(vi) of the Law requires a written statement of the terms of employment to contain particulars of disciplinary and grievance procedures, if there are any. There is no requirement to have such procedures.
(ii) Article 4 of the Law provides that if there is a change in the terms of employment, the employer shall give to the employee a written statement containing particulars of the change at the earliest opportunity and in any event, not later than four weeks after the change in question.
The heading to paragraphs 27 and 28 refers to failures under Article 3 of the Law to provide a written statement of terms, whereas the end of paragraph 27 refers to the respondent not being informed of alterations as required by Article 4 of the Law. Paragraph 28 says "this is an offence" but is it referring to failures under Article 3 or Article 4? In its conclusion the Tribunal fined the respondent for failure to comply with Article 3 of the Law.
It is difficult to see from the Tribunal's own findings how there was a breach either of Article 3 in that there was a written statement of terms and there is no requirement for disciplinary and grievance procedures or of Article 4 in that the respondent had been informed of the introduction of the JACS disciplinary procedures by the letter of 21 st November 2006 which was addressed to him.
The Tribunal was very critical of the representor introducing the JACS disciplinary procedure part way through the disciplinary process it had commenced against the respondent. At paragraph 24 of its decision, it said this:-
"The Respondent was clearly aware of JACS because evidence was heard that it contacted them for advice and indeed finally adopted their disciplinary procedure. JACS provide free, accessible advice on employment matters: there is no excuse not to use their services. The Tribunal will overlook badly written letters and inadvertent breaches of procedure by small businesses with no specific employment law training where no real harm is caused, but it cannot overlook an apparent lack of interest to learn or abide by new processes and laws in place". (The Tribunal's emphasis)
Miss Milner submitted, with some justification in my view, that the comments of the Tribunal come perilously close to elevating disciplinary and grievance procedures into a legal requirement, when it is quite clear from Article 3 that they are not. The absence of a disciplinary and grievance procedure within the respondent's contract of employment heavily influenced the conclusion of the Tribunal's judgement dealing with the award, which was in the following terms:-
"The importance of a fair disciplinary procedure cannot be overemphasised by the Tribunal. Such procedures exist not only for the protection of employees to ensure that they are dealt with in a fair and consistent manner but also to assist employers in terminating the employment of unsatisfactory employees. In this case the employer had reason to be concerned about the conduct of its employee. Such conduct did not warrant instant dismissal but instead of following an established process involving investigating complaints, establishing complaints, hearing the other side, taking appropriate action and allowing appeals to be made, the Respondent appears to have adopted an ad hoc procedure which incorporated none of these principles of equity and fairness. There is no reason why a fair process of dismissal was not followed. Mr Browning may not have been a perfect employee but he was dealt with unfairly by the Respondent and for this reason the Tribunal finds him unfairly dismissed". (my emphasis)
I endorse the Tribunal's comments as to the desirability of disciplinary and grievance procedures being adopted but as it is not a legal requirement, the absence of such procedures cannot, of its own, be held against an employer. It is the fairness of the process actually followed by the employer that may be relevant to the Tribunal's determination under Article 64 of the Law.
As to the representor's Convention rights, Article 6 provides that everyone charged with a criminal offence has the minimum right, inter alia, to be informed promptly of the nature and cause of the accusation against him, to have adequate time and facilities to prepare his defence and to defend himself. The representor would appear to have been given no notice whatsoever of the charges against it under Article 9 of the Law. The first it knew of the possibility of criminal sanction was when it received the written judgement of the Tribunal. There can be no doubt therefore that, had the Tribunal the power to prosecute, convict and fine offenders, the Convention rights of the representor would have been infringed.
Indeed the manner in which the Tribunal appears to have exercised the powers of a criminal court that it had assumed to itself, can only be described as extraordinary in that:-
(i) It gave the representor no notice of the charge against it;
(ii) It denied the representor any opportunity to defend itself;
(iii) It denied the representor the opportunity of addressing it in mitigation before any penalty was imposed.
In other words all the basic safeguards that natural justice requires be afforded to defendants in criminal cases appear to have been ignored.
Authorities
Employment (Jersey) Law 2003.
European Convention on Human Rights.
Health and Safety at Work (Jersey) 1989.
Regulation of Undertakings and Development (Jersey) Law 1973.
Social Security (Collection of Contributions)(Jersey) Order 2001.
Social Security (Jersey) Law 1974.
Criminal Justice (Standard Scale of Fines)(Jersey) Law 1993.
Attorney General v Devonshire Hotels Limited [1987-1988] JLR 577.
Police Force (Jersey) Law 1974.
Huet v Les Ruisseaux Holdings Limited Case No. 0109010/05.