Jersey Unreported Judgments

Employment - reasons for dismissing an appeal.

[2023]JRC182

Royal Court

(Samedi)

9 October 2023

Before     :

M. J. Thompson, Commissioner, and Jurats Averty and Le Cornu

 

Advocate L. A. Ingram for the Appellant.

Advocate J. N. Heywood for the Respondent.

judgment

the COMMISSIONER:

1.        This judgment contains the Court's written reasons for dismissing an appeal by the Appellant heard on 28 September 2023 in relation to a decision of the Employment and Discrimination Tribunal dated 20 January 2023 reported at Antonio Vieira v Design Food Ltd [2022] TRE 010 ("the Tribunal Decision").  While leave to appeal the Tribunal Decision was refused by the Deputy Chair in a judgment dated 31 March 2023 reported at Antonio Vieira v Design Food Ltd [2023] TRE 010A, leave to appeal was granted by Deputy Bailiff MacRae in a file and parties judgment dated 28 April 2023.

2.        In relation to the appeal, both parties filed extensive skeletons which we have considered along with the oral submissions made on their behalf.  We have also had the benefit of the transcript of the proceedings and other material before the Tribunal all of which we considered carefully in reaching our decision.

Background

3.        The relevant background to the appeal was for the most part no longer in dispute.  The Tribunal proceedings were brought by Mr Vieira ("the Respondent") who had worked for Design Food Limited ("the Appellant") from around August 2011 until 16 December 2021.  At the time of the dismissal the Appellant operated one café where the Respondent worked. 

4.        The Appellant is a company incorporated under the law of Jersey whose majority shareholder and director was Mr Gino Risoli ("Mr Risoli").   It was common ground that it was Mr Risoli on behalf of the Appellant who made the decision to dismiss the Respondent on 16 December 2021.  We address the detail of the circumstances of that dismissal later in this judgment.  Mr Risoli lived in a flat over the café where the Respondent worked.

5.        The Tribunal, for the reasons set out in the Tribunal Decision, found that the Respondent had been unfairly dismissed.  The Tribunal also found that the Respondent's claim for wrongful dismissal also succeeded.

6.        The Tribunal made other findings relating to failure to provide itemised pay statements and terms of employment, parental leave, unpaid wages and unpaid holiday.  There was no appeal in respect of these other issues.  The appeal was therefore limited to the Tribunal's findings of unfair dismissal and wrongful dismissal.

Grounds of appeal and Appellant's submissions

7.        The Appellant's grounds of appeal can be summarised as follows:

(i)        There was no evidence to support the judge's finding of fact that the conduct of the Respondent, which the Appellant considered justified its decision to dismiss, did not take place.

(ii)       Nor was there evidence to substantiate the finding that Mr Risoli was not telling the truth.

(iii)          The decision of the Tribunal was obviously wrong.

(iv)      Tribunal also failed to have regard to the belief of Mr Risoli that he had reasonable grounds to dismiss the Respondent summarily and therefore failed to direct itself in relation to this belief.

(v)       The Tribunal failed to consider that there were two grounds for dismissal, namely the entry by the Appellant into Mr Risoli's flat and bedroom without permission and his subsequent refusal to leave the premises.  The Appellant contended that in relation to the Respondent refusing to leave the premises, as required by Mr Risoli on behalf of the Appellant, this was a lawful instruction given by an employer which an employee had failed to obey.  The Tribunal had therefore failed to establish whether this was a reason for dismissal.

(vi)      The Tribunal failed to consider whether the Appellant's decision to dismiss went beyond the decision that a reasonable employer might reasonably have taken.

(vii)     The Tribunal erred in law by substituting the Deputy Chair's own view of the facts relating to the Respondent's conduct for the view formed by the Appellant's decision maker, Mr Risoli, of that conduct.

(viii)    The Tribunal further erred in its approach when assessing wrongful dismissal and conflated the different tests required for unfair and wrongful dismissal. 

(ix)      The Tribunal misunderstood and misapplied the law regarding the burden of proof in Article 64(4) of the Employment (Jersey) Law 2003 As Amended ("the Employment Law").  The error was that the judge recorded in the leave decision that the Appellant was required to discharge the burden of persuading the Tribunal that the decision to dismiss was reasonable.

The Tribunal judgment

8.        The material parts of the Tribunal Decision with which we were concerned are found at paragraphs 6 to 13.  This followed a recitation of the procedural history where a previous judgment of the Tribunal, obtained by default, was set aside.  As the judgment is relatively brief we set out the relevant part in full as follows:

"6.    Understandably the Tribunal heard extensive evidence on this issue, from the Claimant, Mr Risoli on behalf of the Respondent, and Mr Correia on behalf of the Respondent. Mr Correia was at the material time an employee of the Respondent and a colleague of the Claimant. While the evidence on the issue of unfair dismissal was extensive the issue between the parties was in reality simple: the Claimant contended that he had not done anything wrong at all, and to the extent his employer believed he had, he should have been subjected to some form of disciplinary process. It was common ground that this did not take place.

7.    The position of the Respondent was that it was entitled to summarily dismiss the Claimant on account of his gross misconduct. The gross misconduct was that Mr Risoli alleged Mr Vieira, on 16 December 2021, 'barged' in to his flat (which was located above the café where Mr Vieira was employed) uninvited, while he was in bed, and started to verbally abuse him. It is common ground that Mr Risoli also called the police albeit the police took no action against Mr Vieira at any stage. It was at this point that Mr Risoli terminated Mr Vieira's employment.

8.    Mr Vieira denied 'barging' into Mr Risoli's flat, and also denied verbally abusing him. Mr Vieria was clear in his evidence that this simply did not happen and that Mr Risoli was not telling the truth. The submission made on behalf of the Claimant was that Mr Risoli had concocted this version of events after the fact and in the face of receiving a claim for unfair dismissal from Mr Vieira. As above, Mr Correia also gave evidence and indeed there was no dispute that Mr Correia was present at the material time. However, Mr Correia was not able to assist the Tribunal as to the allegations made by and relied upon by Mr Risoli.

9.    It seems to me that the evidential dispute that I am required to resolve is whether or not Mr Vieira did what Mr Risoli alleged, and if he did, whether that would amount to gross misconduct such as to justify a summary dismissal. I had the opportunity to see both witnesses give their evidence, be cross examined and I asked both of them questions myself.

10.  I found Mr Vieira and Mr Correia both to be reliable witnesses. They were both consistent and did not contradict themselves. They both dealt with cross-examination with poise and I was given no real reason to doubt what either of them said. By contrast Mr Risoli was anything but a reliable witness. He was both self-contradictory and aggressive. At one point in his evidence the Tribunal took an unscheduled break to allow Mr Risoli to calm down and to gather himself. Mr Risoli also had to be warned, more than once that the Tribunal had a jurisdiction to strike his case out on account of his unreasonable conduct. Plainly that would be a draconian sanction and one the Tribunal would not impose lightly. The fact that Mr Risoli had to be warned more than once provides an insight as to his unfortunate (in part) conduct.

11.  Unfortunately for Mr Risoli, he was entirely unconvincing in his account of what happened on the morning of 16 December. Indeed, he became very confused and agitated as at one point he seemed to say that he had planned to hold what he called a disciplinary meeting with Mr Vieira at 1000hrs. In another part of his evidence he confirmed that he had already made the decision to terminate Mr Vieira's employment at 0916hrs which raises the question as to what would be the point of the disciplinary meeting, if he truly intended to have such a meeting. In another part of his evidence Mr Risoli conceded that in fact he had never actually told Mr Vieira that his employment had been terminated on account of gross misconduct.

12.  A charitable way to describe Mr Risoli's evidence would be to call it 'confused'. Mr Risoli gave me the impression that he was prepared to say whatever he felt was necessary in the given moment; as above, he was an entirely unconvincing witness. Suffice it to say that I preferred the evidence of the Claimant and I was not persuaded that he had conducted himself as alleged and I was certainly not persuaded that he had done anything that amounted to gross misconduct; I was persuaded by the submission of the Claimant that Mr Risoli's account was engendered by and a response to the claim being filed for unfair dismissal.

13.  Given my finding above, it necessarily follows the Claimant was unfairly dismissed by the Respondent. It also follows that the claim for wrongful dismissal succeeds."

9.        The remaining parts of the judgment concerned issues of failure to provide itemised pay statements, terms of employment, parental leave, unpaid wages and unpaid holiday pay.

10.      We were also referred to the judgment of the Tribunal refusing leave to appeal.  We set out the relevant parts of the leave to appeal judgment, where necessary to do so, in the section of the judgment setting out our reasoning.

Discussion and decision

11.      In relation to the basis upon which the Royal Court may interfere with the Tribunal's decision, a court can only do so where (i) it can be shown that the Tribunal misdirected itself in law or misunderstood the law or misapplied the law or (ii) there was no evidence to support conclusions or findings of fact, or (iii) that the decision was one that no reasonable tribunal directing itself properly could have reached (see Voisin v Brown [2007] JRC 047 at paragraph 18).

12.      In Voisin v Soares [2014] JRC 004, Commissioner Clyde-Smith clarified that the third limb of the test set out in Voisin v Brown was that the decision was obviously wrong rather than one which was perverse (see paragraph 13).

13.      These are the tests we have applied.

14.      In relation to the appeal against the Tribunal's findings of unfair dismissal, the law related to unfair dismissal is set out in Article 64 of the Employment (Jersey) Law 2003 which provides as follows:

"64.      General

(1)     In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it shall be for the employer to show -

(a)     the reason (or, if more than one, the principal reason) for the dismissal; and

(b)     that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)     A reason shall fall within this paragraph if it -

(a)     relates to the capability or qualifications of the employee for performing work of the kind which the employee was employed by the employer to do;

(b)     relates to the conduct of the employee;

(ba)    is that the employee was required to retire;

(c)     is that the employee was redundant; or

(d)     is that the employee could not continue to work in the position which the employee held without contravention, (either on the employee's part or on that of his or her employer) of a duty or restriction imposed by or under an enactment.

(3)     In paragraph (2)(a) -

(a)     "capability", in relation to an employee, means the employee's capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and

(b)     "qualifications", in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which the employee held.

(4)     Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall -

(a)     depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)     be determined in accordance with equity and the substantial merits of the case.

(5)     Paragraph (4) shall be subject to Articles 63 and 65 to 72."

15.      Article 64(1) and (2) require the employer to satisfy the tribunal that a reason falls within either Article 61(1)(d) or Article 64(2).  We observe that the Deputy Chair did not expressly set out this burden of proof in his judgment.  While we accept that the Deputy Chair is experienced and very familiar with the test for unfair dismissal, it is important that a judgment records that test so that it is clear to the parties that the Tribunal are aware of it and have applied it correctly.

16.      We raise this issue because in the leave to appeal judgment at paragraph (2)(v), the Deputy Chair stated:

"The reality of the position is that the Appellant was required to discharge the burden of persuading the Tribunal that the decision to dismiss the Respondent (see Article 64 of the Law) was reasonable."

17.      However, this is not a correct statement of the law.  The burden on the Appellant is only to show that a reason for dismissal exists.  The burden on the Appellant (as the Respondent fairly conceded) in relation to the decision to dismiss for any reason the employer has established is a neutral one.  In other words, the burden of proof is not upon the Appellant to show that the question of whether a dismissal is fair or unfair and in particular whether the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason to dismiss an employee.

18.      However, it is also clear that the second part of the unfair dismissal test only applies where the employer has, on the balance of probabilities, satisfied a tribunal that a reason for dismissal exists.  This is clear from the introductory wording of Article 64(4) "Where the employer has fulfilled the requirements at paragraph (1)....".  In other words, where the employer has not fulfilled the requirements of paragraph (1) there is no need for a tribunal to go on to consider whether the question of whether or not the dismissal was fair or unfair.  This was recognised in JT Jersey Limited v Wood [2016] JLR 293, where the Court of Appeal at paragraph 46 and 47 stated as follows:

"46.      For Mr Wood's dismissal not to have been unfair, once JT had shown a permissible reason for the dismissal within Article 64(1) of the 2003 Law, there was a further stage for consideration by the Tribunal.  This is set out in Article 64(4) as follows:-

"(4)      Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall-

(a)       depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b)       be determined in accordance with equity and the substantial merits of the case."

47.      At this further stage there is no burden of proof on either party, in the sense that it is neither for the employer nor for the employee to show the reasonableness or unreasonableness of the employer's act of treating its reason for the dismissal as sufficient, or to show where the equity and substantial merits of the case lie.  The Tribunal has to direct itself, as the starting point, by reference to Article 64(4) when deciding on the fairness or unfairness of the dismissal for the reason which the Tribunal has found to be the employer's reason." [Emphasis added]

19.      The further stage does not therefore arise where an employer has not shown a permissible reason for dismissal.

20.      We therefore turn now to consider the Appellant's criticisms of the Tribunal judgment.

21.      The first submission of the Appellant was that there was no evidence to support the finding of fact that the conduct did not take place.  Nor was there evidence to support the findings that Mr Risoli had lied in response to the claim being filed for unfair dismissal and that he had invented an account in order to provide his company with a defence to the claims made against it.

22.      To review the Tribunal's approach, it is necessary to set out the events leading up to the decision to dismiss Mr Vieira on 16 December 2021.  We set these out because they are now not in dispute apart from one particular event explained later in this judgment.

23.      As Mr Risoli accepted in his witness statement at paragraph 19, he had been contacted by the Respondent on 9 November 2021, stating that the Respondent wanted to visit Madeira from 23 November 2021 to 15 December 2021 which request Mr Risoli reluctantly approved.

24.      On 15 December 2021, the Respondent emailed Mr Risoli saying he was back on the island.

25.      On 16 December 2021, the Respondent made three telephone calls to Mr Risoli at 8.17am, 8.19am and 8.20am.  These woke Mr Risoli up, but he did not answer. 

26.      Mr Risoli then rang Mr Correia, another employee, and told Mr Correia to inform the Respondent when he turned up to work to come back at 10am.  It seems from the cross-examination of Mr Correia that this call took place while the Respondent was in the café, having arrived to start work.

27.      What happened then is the dispute at the heart of the case before the Tribunal and this appeal.  It was accepted that the Respondent went upstairs to the flat where Mr Risoli lived but disputed whether the Respondent went into the flat and ,if he did, what took place.  The allegation of the Appellant, as summarised at paragraph 7 of the Tribunal Decision, was that the Respondent had barged into the flat and verbally abused Mr Risoli.  The Respondent, when questioned in cross-examination, denied he ever entered the flat. He accepted that he did not leave the café as he did not understand why he had been asked to leave. Instead he continued working and serving customers.

28.      The next event in the factual chain is that Mr Risoli called the police at around 9.15 a.m. with the police iLog recording the following:

"16-12-2021 Antonio left four weeks ago without giving notice or saying anything, Antonio went to Madeira, he has now returned and has just walked into the premises, he has been told he no longer has a job, but he keeps turning up . Yesterday he walked into Mr Risoli flat without permission and was told to leave, Antonio is back and is inside the takeaway."

29.      The police arrived at around 9.50 a.m. with the iLog stating as follows:

"T - no threats made, H- ex-employee refusing to leave, unknown at this time (sic) , I- officer attending to assist in preventing e breach of pace, V. none, E- male has now left the premises as requested."

30.      The iLog records the following at 10.01a.m.:

"Antonio (the Respondent) was confused as to why his boss wanted leave, Antonio stated he had his boss as to why he had to go to Madeira, his boss wasn't interested in that as he left without saying anything and returned expecting to have his job back. Antonio advised accordingly."

31.      At 10.02 a.m., according to the iLog,  the Respondent left the premises and did not return. Having been asked to leave by the police he concluded he had been dismissed by the Appellant.

32.      We have set out the above sequence of events because, in our view, the Tribunal correctly identified the issue at the heart of the dispute as set out at paragraph 6 of the Tribunal Decision.  This is the factual issue we have described at paragraph 27 above.

33.      The case put before the Tribunal on behalf of the Appellant was also clear as summarised at paragraph 5 of the Appellant's closing submissions as follows:

"5. R dismissed C for gross misconduct. The misconduct being the entry by C into Mr Risoli's flat and bedroom, without permission, shortly after 8.20am and subsequent refusal to leave the premises."

34.      In the transcript at the bottom of page 74, Mr Le Cornu for the Appellant stated:

"That is the technical legal position, but our primary position is that yes, it's the intimidation, it's the entry into the flat, into the bedroom, and that is what leads to the summary dismissal."

35.      At page 76 of the transcript, Mr Le Cornu stated "The actual dismissal occurs because of what happened upstairs in Mr Risoli's bedroom" which was repeated at page 77 of the transcript.

36.      The approach taken by the Deputy Chair was therefore to determine the case that the Appellant, through its representative Mr Le Cornu, had put before it.  No fault can be found by him taking this approach.  A court or tribunal is entitled to ascertain, from a representative of a party, what that party's case is, and to make its determination in reliance on the case advanced by that representative.  It is not for a tribunal to ferret out what a party's case might be or to find other grounds that the party has not advanced.

37.      To the extent it was suggested on appeal that there was more than one reason for dismissal, namely the Respondent's alleged entry into the flat and the separate failure on the part of the Respondent to leave when required, this was not the case put before the Tribunal.  No explanation has been put to us to justify why a different argument is now raised by the Appellant.  Nor has the Appellant explained why the issue now raised was not raised before the Tribunal even though Advocate Ingram was instructed by the same representative who had appeared in the Tribunal for the Appellant.  We address this further when considering the second reason now relied on by the Appellant.

38.      In relation to the first reason relied upon, namely the incident in the flat, it is clear that this was dealt with by the Tribunal.  The Tribunal had the benefit of seeing the witnesses and their answers in person or over a video link whereas we only have the transcript. 

39.      Having looked at all the material before us, in particular the transcript, we have concluded that the Tribunal was entitled to reach the conclusions set out in paragraph 11 of the Tribunal Decision. The Appellant's submissions do not reach the threshold permitting us to interfere with that decision.  We have read the transcript carefully and we consider that the Deputy Chair was entitled to reach the conclusion set out in paragraph 11.  In reaching this conclusion, while we accept Mr Ingram's criticism that Mr Risoli in his evidence did not intend to refer to a disciplinary meeting but only a meeting to discuss the Respondent's intentions, this submission does not alter the thrust of the conclusions reaching in paragraph 11.  What the Deputy Chair identified were inconsistent accounts in Mr Risoli's evidence which entitled the Tribunal to prefer the evidence of the Respondent over that of Mr Risoli.

40.      In relation to the criticism that Mr Risoli's account was engendered by a response to the claim being filed for unfair dismissal, Mr Risoli was cross-examined on the original response of the Appellant to the Respondent's claim before the Tribunal.  Again we are satisfied that there was sufficient material for the Deputy Chair to form the view he did in light of this part of Mr Risoli's cross-examination and the explanation he gave as to why he drafted the original defence in the way he did.

41.      The notes to the police are also significant because Mr Risoli told the police that the Respondent had already left his employment which was not true.  The police note also recorded Mr Risoli saying that the Respondent no longer had a job but that was not the communication made to the Respondent.  The communication made was to return at 10am.  Thirdly, the suggestion the Respondent kept turning up after having been dismissed was also untrue. Advocate Ingram quite properly did not challenge that Mr Risoli had made untrue statements to the police.  In light of these untrue statements, the Deputy Chair was entitled to take them into account in evaluating the differences between the Respondent and Mr Risoli to decide whose evidence he preferred.  This is what he did at paragraphs 11 and 12 of the Tribunal Decision.

42.      The Appellant has not therefore persuaded us that the decision of the Tribunal in relation to the incident in the flat is one where this Court should interfere.  There is no error of law or misdirection in law, there is evidence to support the conclusions the Tribunal reached and the decision was one which a reasonable tribunal directing itself properly on the law could have reached. 

43.      The next ground of appeal relied upon by the Appellant was that the Tribunal failed to consider the belief of Mr Risoli.  The basis for this argument was the decision of the Court of Appeal in Abernethy v Mott and Others [1974] ICR 323, where Lord Justice Cairns said:

"A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness ..."

44.      The Appellant's complaint was that the Tribunal did not consider whether there was a genuine belief on the part of Mr Risoli that the Respondent was guilty of the alleged misconduct, namely the failure to leave the flat, and whether that belief was reasonably founded even if the Tribunal considered that the conduct complained about did not take place.  Advocate Ingram drew to my attention various authorities where the tribunal fell into error by considering what actually happened rather than what the employer believed had happened (see Fuller v The London Borough of Brent [2011] EWCA Civ 267 at paragraph 52 by way of example).

45.      The Respondent described this submission as coming from the other side of the looking glass.  We agree. This part of the Appellant's case is based on cases where an employee is alleged to have committed an act or acts of misconduct, that conduct is then investigated by a representative of the employer who produces a report leading to a decision taken by a directing mind of the employer to dismiss following a disciplinary hearing.  In such circumstances, as it was put in Fuller v London Borough of Brent, the tribunal has to consider:

"...whether there was a genuine belief on the part of the employer that the employee was guilty of the alleged misconduct, whether that belief was reasonably founded (in the present case whether it had carried out a reasonable investigation as the basis for its conclusions) and whether a reasonable employer could have dismissed for that misconduct."

46.      The context of this observation, however, is that the individual taking the decision to dismiss was not involved in the conduct that led to the dismissal but was rather reaching a decision to dismiss based on material before the decision maker as to what is said to have happened.

47.      Where however the person making the decision to dismiss is directly involved in the conduct rather than having a belief that some form of conduct occurred due to information provided by another individual, a tribunal is entitled to determine whose account it should prefer, that of the employee or the representative of the employer involved in the conduct and who dismissed the employee as a consequence. This distinction is particularly important for small employers where they may well not have the resources to conduct an investigation and to differentiate between those involved in the conduct, those carrying out the investigation and those making the decision to dismiss.

48.      In the present case, the Tribunal was faced with a direct conflict of evidence between the only two individuals involved in the dismissal of the Respondent.  The Tribunal was therefore fully entitled to determine whose evidence it preferred and to reach a decision. The question of belief simply does not therefore apply to the facts of this appeal and was hopeless.

49.      In relation to the refusal of the Respondent to leave when directed to by Mr Correia, this alternative case could have been put before the Tribunal as noted above but was not.  During the Tribunal hearing, the Deputy Chair sought clarity on the reasons relied upon for the dismissal and was given that clarity both orally and in writing, it is therefore inequitable to permit a party to go behind the case it has previously adopted, absent special circumstances.  Otherwise, there would never be finality to proceedings.  To hold otherwise would allow an aggrieved party a second bite of the cherry and would undermine the whole purpose of having tribunals with limited rights of appeal.  No circumstances or explanation have been advanced in the submissions, written and oral, made for the Appellant to justify why the Appellant should be allowed to raise this new ground at this stage.  This ground is not therefore a basis to interfere with the Tribunal's Decision.

50.      If we are wrong on the above conclusion, we accept the Tribunal did not consider the second reason for dismissal now relied upon, namely the Respondent's refusal to leave the premises when directed to do so.  We further accept that this was a lawful instruction given which was not obeyed.  A failure to obey a lawful instruction is capable of amounting to conduct for which an employee can be dismissed.  Accordingly, we are satisfied that the Appellant has established before us a reason for dismissal, namely the refusal of the Respondent to leave the premises when directed to do so.

51.      However, given the material before us, we do not consider it necessary to remit this matter to the Tribunal to consider whether this reason and the decision to dismiss as a consequence is a fair dismissal. This is because the events that happened on 16 December were explored extensively in cross-examination. A further hearing would not produce any additional material needed for a determination to be made.  Accordingly, we were able to determine whether or not treating the Respondent's refusal to leave was a fair dismissal. 

52.      In reaching our conclusions, we have treated this dismissal as entirely separate from what happened in the flat.  This reason for dismissal is therefore on the basis that the Respondent had not committed any other act or conduct which the Appellant could rely upon as part of the decision to dismiss.

53.      We concluded that no reasonable employer would have dismissed the Respondent for not leaving the café. In reaching this conclusion, we accept that the business was a small one.  However, the dismissal for this reason was never communicated to the Respondent.  The Respondent was not told he was dismissed by Mr Risoli and only realised he had been dismissed when he was asked to leave by the police.  There was no discussion at all between Mr Risoli and the Respondent about why the Respondent did not leave the café when asked to do so by Mr Correira.  There was no form of disciplinary hearing where Mr Risoli sought to understand why the Respondent had not left.  Mr Risoli also failed to consider that the Respondent had simply stayed working, serving customers, had not caused any difficulty and, when asked to leave by the police, he did so without protest.

54.      In our view, no reasonable employer would have dismissed an employee when an employee was asked to leave for a short period of time and return later in the day but did not do so and did not commit any other act of misconduct.  In our view, a reasonable employer would have raised the issue with the employee, would have evaluated his responses, but would not have dismissed an employee based on the evidence contained in the transcript.  A reasonable employer might have given the Respondent some form of warning to make it clear that he should comply with lawful instructions given by the employer and not question the reason why.  Accordingly, this ground of appeal fails.

55.      In relation to the submission that the Tribunal submitted its own view of the facts relating to the Respondent's conduct for the view formed by Mr Risoli, this ground also fails.  While there are cases which make it clear that a tribunal must not substitute its own view about whether an investigation reveals reasonable grounds to establish a reason for dismissal, or whether an employer's decision to dismiss fell within a range of reasonable responses, (see Fuller v London Borough of Brent [2011] EWCA Civ 267 at paragraph 12 and Foley v Post Office [2000] ICR 1283 at page 192 line H21293 line C), in this case we are satisfied that the Tribunal Decision did not substitute the Deputy Chair's view of what happened for the view of a reasonable employer.  Rather, the Deputy Chair correctly noted at paragraph 9 that it had to resolve the direct conflict of evidence between the Respondent and Mr Risoli.  He did so and for the reasons we have already given there is nothing in his reasoning which suggests that any form of substitution has arisen. 

56.      In relation to the Appellant's submission that the Tribunal conflated the different tests applicable to wrongful dismissal and unfair dismissal, Advocate Ingram rightly accepted when addressing us orally that if an employer failed to establish gross misconduct, to justify that a dismissal was fair for the purposes of Article 64(1) of the Employment Law, then it had to follow that an employee in such circumstances had been wrongfully dismissed because the employee had not been given notice under the terms of that employee's contract of employment.  This is the approach the Deputy Chair took as recorded in the Tribunal Decision and so this ground of appeal falls away.  However, we should make it clear that we agree with the Appellant that there are different tests applicable to determine whether an employee has been unfairly dismissed or wrongfully dismissed.  This point was determined in Voisin v Soares [2014] JRC 004 where Commissioner Clyde-Smith stated the following at paragraphs 77 and 78:

"77. In addition to his claim for unfair dismissal, Mr Soares brought a claim for notice pay on the basis that he had been wrongfully dismissed. The jurisdiction of the Tribunal to entertain such a claim is quite separate from its jurisdiction to entertain claims for unfair dismissal. The former is brought under Article 86 of the Employment Law, which provides under Article 86(1) and (3) that proceedings may be brought before the Tribunal in respect of an individual employment dispute which involves a claim in respect of which a court in Jersey would under the law for the time being in force have jurisdiction (subject to certain exceptions).

78. The two jurisdictions are thus quite separate and require different approaches. Claims under Article 86 require the Tribunal to make findings of fact and to make decisions on the contractual claim, as made clear by the English Court of Appeal in Boardman v Nugent Care Society and Another [2013] ICR 927 where it was held:-

" ... in considering a claim of wrongful dismissal, the employment tribunal was not confined to a reviewing role, and it was not only appropriate, but necessary, for the tribunal to make its own findings of fact as to whether the claimant had breached her contract in such a way as to justify summary dismissal;"."

57.      For all these reasons we dismissed the Appellant's appeal.  The question of costs was left over until delivery of these written reasons.

Authorities

Antonio Vieira v Design Food Ltd [2022] TRE 010.

Antonio Vieira v Design Food Ltd [2023] TRE 010A. 

Employment (Jersey) Law 2003 As Amended. 

Voisin v Brown [2007] JRC 047. 

Voisin v Soares [2014] JRC 004. 

JT Jersey Limited v Wood [2016] JLR 293. 

Abernethy v Mott and Others [1974] ICR 323. 

Fuller v The London Borough of Brent [2011] EWCA Civ 267

Foley v Post Office [2000] ICR 1283