Guernsey Legal Resources

This is an appeal by an employer against a decision of an adjudicator under the Employment Protection (Guernsey) Law 1998, in a matter which is part heard. The adjudicator had to decide when the effective date of termination (“EDT”) of the employment occurred in order to establish whether the application before him had been brought within the time period permitted under s.17(2) of the 1998 Law. For the reasons I explain below, the adjudicator split the hearing into two parts and took the EDT issue in the first part. He has decided the issue in favour of the employee and has said he will give his reasons at the conclusion of the hearing. The employer does not want to have to wait until then to learn the reasons.

“I therefore feel that I have no option but to resign because of the situation I have found myself in through no fault of my own. I have instructed an advocate about the treatment I received, as I feel that I have been constructively dismissed.”

3 On June 27th, 2005, the employee completed form Emprot 1 and lodged with the Department of Commerce & Employment a complaint of unfair dismissal, alleging a constructive dismissal. He recorded the date of termination of his employment as May 31st, 2005.

4 The employer responded by filing form Emprot 2, dated July 14th, 2005, indicating the employer disagreed with the employee’s dates of employment. The employer stated that the employment commenced on May 3rd, 1996 and terminated on February 28th, 2005. The employee had noted the date of commencement of employment as June 1996, but no significance attaches to that discrepancy. The adjudicator had to determine whether the EDT was February 28th or May 31st.

5 The complaint was set down for hearing before the adjudicator on November 11th, 2005. On the eve of the hearing, the employee’s counsel withdrew from acting further for him. Although I was not given the reasons for the withdrawal, I was assured that it was through no fault of the employee himself, and certainly the employer was not to blame for the withdrawal. The advocate concerned appeared at the start of the hearing on the morning of November 11th to explain the situation to the adjudicator and to request an adjournment. By then, a different firm of advocates, Collas Day, had been instructed, and the adjudicator was informed that Advocate Richardson would be available to attend in the afternoon. The adjudicator therefore adjourned the hearing until the afternoon in order not to waste the day. He was aware that some of the witnesses to be called on behalf of the employer had travelled from Switzerland to be present.

6 The EDT issue involved questions of law and fact, and the adjudicator decided to commence by hearing evidence and legal submissions on that issue. The hearing was not concluded on the 11th and continued on December 1st, 2005.

7 On December 6th, the adjudicator issued, through the secretary to the adjudicators, his decision, in which he concluded that the EDT took effect on May 31st, 2005 and that, therefore, the Emprot 1 application form was submitted in time. The notification continued:

“[G]iven this conclusion, and taking guidance from the ruling by the Court of Appeal in the judgment of Garenne v. Falla, it is the decision of the adjudicator that the hearing should now proceed to the substantive issue of the alleged unfair dismissal at the earliest convenience of all the parties.

The adjudicator is mindful that his decision as to the EDT is founded

8 Advocate Roland wrote on behalf of the employer on December 20th, 2005, requesting the adjudicator’s reasons. The secretary to the adjudicator replied on December 23rd, 2005 in the following terms:

“I refer to your letter dated December 20th, 2005, whereby you requested the reasons for the adjudicator’s decision on the applicant’s effective date of termination, a copy of which was forwarded to the adjudicator. The adjudicator’s response is as follows:

    ‘The adjudicator has considered the request by the respondent to receive detailed reasons for the decision on the effective date of termination, which has been considered as a preliminary issue prior to moving on to the substantive issue of an alleged unfair dismissal, and that, further, the respondent has indicated that they reserve the right to appeal this decision prior to the hearing proceeding to a consideration of the substantive issues.

    The adjudicator would refer both the respondent and the applicant to the judgment of Garenne v. Falla by Southwell, J.A. on February 15th, 2002 in the Court of Appeal in Guernsey. In this case, the issue of the definition of continuous employment was considered as a preliminary issue and then appealed prior to consideration of the substantive issue. Southwell, J.A. ruled in para. 26(1) that “no preliminary issue should have been taken. The whole matter should have been heard and decided by the adjudicator before any appeal to the Royal Court was heard.”

    And, further, in para. 26(2), Southwell, J.A. stated: “In my judgment, the Bailiff should have decided not to hear the appeal until the whole matter had been heard and decided by the adjudicator.”

    It is the firm conclusion of the adjudicator that this ruling should guide his decision in this present case. The adjudicator is also mindful that his decision as to the “effective date of termination” may subsequently be appealed, and he has already communicated to both parties that his judgment will include his reasoned arguments for this decision and, indeed, any other decisions that arise from this hearing.

    As already communicated to both parties on December 6th, 2005, the adjudicator has decided to progress to the substantive issue(s) and, in the interests of prompt resolution, would now request that we move with speed and expedition to conclude the hearing.’

    In light of the adjudicator’s comments above, please would you let me know as soon as possible of the days when you will not be available between January 10th, 2006 and February 10th, 2006.”

Following a further request from Advocate Roland, the adjudicator later ruled, despite opposition from Advocate Richardson, that the proceedings before him be stayed pending the outcome of this appeal.

    (i) to order the adjudicator to give reasons for his decision;

    (ii) to remit the case to another adjudicator to hear the entire matter; or

    (iii) to hear the EDT appeal and resolve the EDT issue after hearing evidence.

10 I suggested that there is a fourth alternative, namely, to adjourn the hearing of the appeal until after the conclusion of the proceedings before the adjudicator, and after he has given his reasons.

11 At an earlier directions hearing, I had questioned whether there is a right of appeal against a decision of an adjudicator which, had the same decision been made in the course of Royal Court proceedings, would have been considered interlocutory and, hence, an appeal would only have lain with leave of the presiding judge or the Court of Appeal (under s.15(e) of the Court of Appeal (Guernsey) Law 1961).

“It is apparent from the terms of the 1998 Law that the adjudication procedure is not intended to mirror that of the Royal Court, and is intended to be less formal, less legalistic and speedier. The complainant’s rights are to be determined with the reasonable speed and efficiency which is consistent with giving each party a reasonable opportunity to be heard by the adjudicator.”

13 The right of appeal is in s.23(1) of the 1998 Law: “A person aggrieved by a decision or award of an Adjudicator on a question of law may . . . appeal therefrom to the Royal Court . . .”

14 There is no distinction between a decision which amounts to a final determination of the issues between the parties and an interlocutory decision. It might be considered that “a decision or award” means only a final decision or award. However, I note that in Garenne Group Ltd. v. Falla (2), an appeal was pursued against a decision by the adjudicator on a preliminary point. I also note that in this case, the secretary to the adjudicator’s letter, dated December 6th, 2005, referred to the “decision” of the adjudicator. I therefore accept, somewhat reluctantly, that there is a

15 If the Department of Commerce & Employment considers that such appeals frustrate part of the intention of the 1998 Law by making the procedure more open to legal intervention, more costly and less speedy, and if it considers it appropriate that leave be obtained before an interlocutory decision can be appealed, it could seek to amend the 1998 Law.

16 Does the Royal Court have discretion to stay the appeal pending the outcome of the substantive hearing before the adjudicator? Southwell, J.A. was of the view that the Royal Court had such a discretion in Garenne Group Ltd. v. Falla (2). In refusing leave to appeal to the Court of Appeal, he said: “In my judgment, the Bailiff should have decided not to hear the appeal until the whole matter had been heard and decided by the adjudicator.”

17 Advocate Roland submitted those comments were obiter dicta. As they are the comments of a single judge rather than the full Court of Appeal, it may anyway be questionable as to whether they are binding on the Royal Court. But even if they are not binding, I see no reason why I should not be guided by Southwell, J.A.’s decision. The legislation and the relevant rules do not say that I cannot stay the appeal, and I therefore accept that I have discretion to do so.

18 Advocate Roland also submitted that it would be unjust to adjourn the appeal because the employer wants to know why it lost on this issue so that it can decide whether to continue with its defence of the complaint. The adjudicator may have questioned the credibility of the two witnesses called on behalf of the employer (its director of human resources and its operations director); they will be essential witnesses for the employer on the substantive issues. The employer needs to take a commercial decision as to whether to continue. The further hearing is estimated to last two days, and the amount of damages claimed is approximately £13,000. Garenne (2) is distinguishable because in that case the adjudicator gave his reasons, Garenne was in no doubt why it lost and, in any event, there was no substantive defence, only a technicality.

19 In response, Advocate Richardson argued that the thrust of the decision in Garenne is that adjudicators should decide their own procedure and be allowed—and encouraged—to hear the complaint as they think best and in a manner that is reasonably speedy and cost-effective. The problem has arisen partly because only a single day was set aside for the hearing, whereas a whole week would have been more realistic. I note in passing that, in the light of what has happened here, those who set down complaints for hearing before adjudicators may wish to consider whether it would be better, especially in cases where either or both of the parties

20 I must decide whether the adjudicator’s decision, communicated in the letter from the secretary to the adjudicators, dated December 23rd, 2005, namely, that he will defer giving his reasons on the EDT issue until the conclusion of the hearing, was reasonable.

21 I remind myself that appeal lies to this court on a point of law only (s.23(1) of the 1998 Law). Having regard to the analysis by Beloff, J.A. in Walters v. States Housing Auth. (3) of the different categories of unreasonableness, I should only interfere with the adjudicator’s decision if it is ultra vires or Wednesbury unreasonable.

22 The adjudicator has the power to decide his own procedure under para. 1(1)(m) of the Schedule to the 1998 Law. Although Advocate Roland has relied on cases where a tribunal has given no, or inadequate, reasons, I do not regard the adjudicator as having refused to give his reasons. He has said he will give them in his judgment at the conclusion of the hearing. In my opinion, that is a procedural decision well within the powers of the adjudicator.

23 Should I interfere with the adjudicator’s exercise of his discretion? The letter dated December 23rd, 2005 states that the adjudicator had looked to the decision of Southwell, J.A. in Garenne Group Ltd. v. Falla (2) for guidance. I am satisfied that he was entitled to do so. Indeed, I have done the same in this judgment.

24 The reasons the adjudicator gave for not giving his reasons at this stage were “in the interests of prompt resolution” and with a request that “we move with speed and expedition to conclude the hearing.” In my opinion, those are proper matters to consider, and they show that he approached the exercise of his discretion in a correct manner. His decision to move on with the hearing is not irrational. I am therefore satisfied that there are no grounds on which I could interfere, on a point of law, with the adjudicator’s decision. Consequently, I do not propose to order him, at this stage, to give his reasons. There is no need for me to hear the EDT issue in his place.

25 Advocate Roland has asked me to remit the matter to a different adjudicator. In the judgment of the English Court of Appeal in Barke v. SEETEC Business Tech. Centre Ltd. (1), Dyson, L.J. warned ([2005] IRLR 633, at para. 46) that—

“as Burton, J. recognised in Burns at para. 13, there are dangers in asking the original tribunal for further reasons where the ground of appeal is inadequacy of reasoning. It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of

26 This is not a case where the tribunal has refused to give any reasons for its decision, as the adjudicator has said he will give reasons at the end of the case. Nor is it a case where he has given reasons which are inadequate. The employer has not persuaded me that, in the circumstances of the present case, there is any danger that the adjudicator will tailor his reasons either deliberately or subconsciously. He is an experienced adjudicator and is to be trusted for his professionalism and integrity.

27 For the reasons I have given, I order that the matter be remitted to Mr. Woodward for him to continue the hearing and to give his decision and reasons after the conclusion of the hearing.