Jeanne -v- Jersey Telecom Limited [2009]JCA138

Introduction

This decision, which deals principally with Jersey customary law employment issues, is of interest not only from an employment perspective, but also because it addresses striking out, the role of the court in the development of the Island's law and the question of bias. This summary focuses on the question of unfair dismissal.

Background

The appellant, Jeanne, was dismissed on grounds of inefficiency in 2000, with notice but without, he alleged, the applicable contractual disciplinary procedures having been followed. He appealed against the decision of the Commissioner (found at [2008]JRC222) to strike out the unfair dismissal element of his claim.

The appellant relied on the disciplinary section of his contract, which stated: "This section is based on, and is in the spirit of, the ACAS Disciplinary at Work document…"

On the basis of this provision, the appellant argued that the UK Employment Rights Act 1996 ("ERA") applied to his contract of employment and that he had a "statute Contract", governed by English law. He accepted that he had no remedy under Jersey customary or statutory law, but argued that he should be entitled to pursue a claim for unfair dismissal under the ERA in the Royal Court. This argument was crucial to his claim as no statutory remedy for unfair dismissal existed under Jersey law at the time of his dismissal in 2000, as the Employment (Jersey) Law 2003 (which introduced statutory unfair dismissal to the Island) was not implemented until 1 July 2005.

An unfair dismissal claim would, in theory, have allowed the appellant to pursue substantial additional damages. (It is hard to say exactly how any such claim would have been quantified by the Royal Court, given that it would have been a novel claim, arising under the English and not the Jersey statute.)

Findings of the Court of Appeal

The Court of Appeal rejected the appellant's argument, noting that: "There was a written contract of employment, which was subject to Jersey Law - be that customary law, or statute law. The contract was made in Jersey, with a Jersey employer… and the law of the contract is clearly Jersey law. It is impossible to conclude that the contract was made subject to English statute law."

The court approved the conclusion of the Commissioner: "…the Court must apply the law of the Island and the fact of the matter is that in 2000, the plaintiff, like every other employee in Jersey at that time, had no remedy for unfair dismissal. The defendant was entitled to terminate his contract on notice, even if to do so was unfair."

Accordingly, the appeal was dismissed and the strike-out upheld, Pleming JA noting: "This is not merely a weak case, it is a hopeless case, and if pursued to trial it will fail."