Jersey Unreported Judgments

[2008]JRC222

royal court

(Samedi Division)

19^th December 2008

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

 

The Plaintiff represented himself.

Advocate D. M. Cadin for the Defendant.

judgment

the COMMISSIONER:

1.        This is an appeal by the defendant against a decision of the Master of the Royal Court to refuse to strike out the plaintiff's claim.

Background

2.        The plaintiff was employed by the defendant as a business systems wiring supervisor.  His contract of employment, dated 22^nd June, 1998, provided in clause 3 that his employment could be terminated by the defendant by the service of one month's written notice.  The contract referred to the staff handbook for procedures in relation to inefficiency and discipline.

3.        On 28^th March, 2000, the defendant terminated the plaintiff's employment on the grounds of his inefficiency and paid him one month's salary in lieu of notice.  Subsequently, the defendant paid the defendant a further two months' salary.

4.        Although the defendant denies that it treated the plaintiff unfairly or improperly, it accepts that in the period leading up to the termination of the plaintiff's employment, it failed to comply with the inefficiency procedure set out in the staff handbook.  That procedure allowed for four stages; stage 1 being a verbal warning; stage 2 being a written warning; stage 3 being a final written warning; and stage 4 being dismissal.  There were no minimum periods for each stage but warnings expired after 6, 9 and 12 months respectively subject to satisfactory performance.

5.        By letter dated the 4^th January, 2001, the plaintiff gave the defendant notice of his intention to pursue a claim for damages for unfair dismissal, wrongful dismissal, loss of opportunity, loss of reputation and breach of contract.  In addition, he indicated he would be claiming for loss of earnings and States of Jersey pension contributions from March 2000, as well as Social Security payments due under Jersey law.

6.        Over 5 years later on 13^th October, 2007, the plaintiff registered a complaint with the Jersey Employment Tribunal under the Employment (Jersey) Law 2003.  That Law came into force on 1^st July, 2005, and did not have retrospective effect.  However, the plaintiff informed me at the hearing that he did not pursue this complaint when he became aware of the limits to the compensation that the Tribunal could award in cases of unfair dismissal.

Pleadings

7.        The plaintiff commenced the action by way of Order of Justice on 24^th May, 2007.  The Order of Justice referred to the sections of the staff handbook dealing with inefficiency and disciplinary procedures and asserted that the defendant was in breach of his contract of employment which led to the plaintiff's "automatic unfair dismissal".

8.        The plaintiff also claimed a refund of the Employer's contributions to the Occupational Pension Scheme, citing clause 3(6)(b)(iii) of the contract of employment which is in the following terms:-

"On termination of employment for any reason ... the Employee shall be entitled to ... the transfer of all Employer's and Employee's contributions to the Employee's account under the Occupational Employment Scheme."

9.        Thus, the plaintiff's claim fell into two categories, firstly a claim for damages for breach of contract leading to unfair dismissal ("unfair dismissal") and secondly a claim for the Employer's pension contributions.

10.      In its answer, the defendant pointed out that a cause of action for unfair dismissal was not tenable in view of the fact that the Employment (Jersey) Law 2003 came into force after the termination of the plaintiff's employment.  No such cause of action was recognised under Jersey customary law.

11.      The plaintiff filed a reply in which he stated that because the Employment (Jersey) Law 2003 was not in force at the time of the termination of his contract of employment, he would refer to UK employment law - "the very same Law which the defendant had used to formulate its own contract of employment, and Terms and Conditions Handbook".  By reference to English Law, he quantified his claim at £910,735 which included £100,000 for breach of contract, £100,000 for unfair/wrongful dismissal, £269,393 compensation for loss of wages from date of dismissal to the Court hearing, loss of States of Jersey contributions to the Occupational Pension Scheme of £114,059.54 and loss of future salary to retirement age of £243,360.

12.      In response to a request for further and better particulars by the defendant, the plaintiff confirmed that all his claims for unfair dismissal were based upon English statutory law, specifically the Employment Rights Act 1996 (a copy of sections of which were appended to his reply).  At the hearing, the plaintiff confirmed to me that the whole of his case in unfair dismissal was based upon English statutory law.  He accepted that he had no remedy under Jersey customary or statutory law.

Role on appeal

13.      The role to be adopted in a hearing of this type was set out by Birt, Deputy Bailiff, in Garfield Bennett v Phillips 2002/214:-

"This is an appeal from a decision of the Master.  In accordance with long established practice in such cases, the Court has therefore considered the matter afresh and reached its own conclusion whilst, of course, taking due note of the decision of the Master and the reasons for his decision.

Thus my function is not limited to considering whether the jurisdiction of the Master was exercised wrongly.  Rather, I have to exercise my unfettered discretion afresh by reference to the material before me, giving due weight to the decision of the Master.

Defendant's summons to strike out

14.      The defendant issues a summons seeking that the plaintiff's claim be struck out on the grounds set out in Rule 6/13(1) of the Royal Court Rules 2004, namely that:-

(i)        It discloses no reasonable cause of action; and/or

(ii)       It is scandalous, frivolous and vexatious; and/or

(iii)      It is otherwise an abuse of the process of the Court.

15.      It is well established that the Royal Court applies the same principles as have been adopted by the English Courts in relation to strike out applications (see In re Esteem Settlement [2000] JLR 119 at page 127).  I was referred, as was the Master, to the following extracts from the Supreme Court Practice 1999:-

"18/19/6          Exercise of powers under this rule - It is only in plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v Wilkinson [1899] 1 QB 86 at 91 (Mayor, etc. of the City of London v Horner (1914) 111 L.T. 512, CA).  See also Kemsley v Foot [1951] 2 K.B. 34; [1851] 1 All ER 331, CA, affirmed [1952] A.C. 345, HL.  It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v Moloney [1965] 1 W.L.R. 1238; [1965] 2 All ER 871, CA).  If there is a point of law which requires a serious discussion, an objection should be taken on the pleadings, and the point set down for argument under O.33, r.3 (Hubbock v Wilkinson [1899] 1 QB 86 at 91).

18/10/10          No reasonable cause of action or defence

(1)       Principles - A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All ER 1094, CA).  So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 QB 185) disclose come cause of action, or raise some question fit to be decided by a Judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out (Moore v Lawson (1915) 31 T.L.R. 418, CA; Wenlock v Moloney [1965] 2 All ER 871, CA); nor is the fact that the Statute of Frauds 1677 (which was merely a provision as to evidence) might be a bar to the claim (Fraser v Pape (1904) 91 L.T. 340, CA).  In such a case application may be made under O.33, r.3, for the trial of a preliminary issue (see, e.g. Addis v Crocker [1961] 1 Q.B. 11; [1960] 2 All ER 629, CA affirming [1960] 1 Q.B. 87; [1959] 3 All ER 773).

18/19/16 "Frivolous or vexatious" - By these words are meant cases which are obviously frivolous or vexatious, or obviously unsustainable, per Lindley L.J. in Att. Gen. of Duchy of Lancaster v L & N.W.Ry. [1892] 3 Ch 274 at 277; Day v William Hill (Park Lane) Ltd [1949] 1 K.B. 632; Law v Dearnley [1950] 1 All ER 124, CA, and in Kellaway v Bury (1892) 66 L.T. 602; Bean v Flower (1895) 73 L.T. 371).  For instance, it is vexatious and wrong to make solicitors or other parties to an action merely in order to obtain from them discovery or costs (Burstall v Beyfus (1884) 26 Ch.D.35; and see Farnham v Milward [1895] 2 Ch 730).  But a judicial discretion must be used in determining whether the proceedings are vexatious (per Halsbury L.C. in Higgins v Woodhall (1890) 6 T.L.R. 1).  The pleadings must be "so clearly frivolous that to put it forward would be an abuse of the process of the Court" (per Jeune P. in Young v Holloway [1895] P.87 at 90; and see Whitworth v Darbishire (1893) 68 L.T. 216).  And action involving gaming debts, even though framed in the guise of an account stated, will be struck out (Day v William Hill (Park Lane) Ltd [1949] 1 K.B. 632, CA, not following Gugenheim v Ladbroke & Co. [1947] 1 All ER 292, CA).

18/19/18          "Abuse of the process of the Court" - Para. (1)(d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court."  This term connotes that the process of the Court must be used for bona fide and properly and must not be abused.  The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v Murray (1875) 10 Ex. 213; Dawkins v Prince Edward of Saxe Weimar, Willis v Earl Beauchamp (1886) 11 P.59, per Bowen L.J. at 63).  See also "inherent jurisdiction" para. 18/19/26.

The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose consideration of public policy and the interests of justice may be very material."

16.      Before turning to the decision of the Master and the submissions of the parties to me, it is helpful to set out the position under Jersey customary law, which is set out in the judgment of Birt, Deputy Bailiff in McDonald v Parish of St Helier [2005] JLR 212.  In that case, the employee's contract of employment entitled the employer to terminate the contract on a week's notice, but also provided for a disciplinary procedure to be followed if misconduct were alleged, a procedure which was ignored.  Birt, Deputy Bailiff, dealt with the established law as follows:-

"15 Under the established law, damages for dismissal in breach of contract are limited to the amount the employee would have earned had he been given proper notice as provided for in the contract.  The reason for this is that the employer has an unfettered freedom to dismiss an employee at will, with or without reason, provided that the contractual notice period is given.  The employer can act unreasonably or capriciously if he so chooses but the dismissal is valid (per Lord Reid in Malloch -v- Aberdeen Corporation (1971) 2 All ER 1278 at 1282).  To any claim by an employee that he has been dismissed without the proper notice or otherwise in breach of contract and that he should have damages for loss of earnings extending beyond the notice period, the employer can reply that he has the legal right to dismiss on notice at any time (with or without reason or without having to give any reason) so that the employee cannot prove on the balance of probabilities that his employment would have continued beyond the notice period.  On the contrary, given that, by definition, the employer has decided to dismiss the employee, the high probability is that the employer does not wish the employment to continue and would therefore exercise his right to dismiss on notice if this were necessary."

17.      His judgment then went on to deal with a situation where an employer dismisses an employee without following the agreed disciplinary procedures:-

"That principle also applies, with minor modification, where the contract provides for a disciplinary procedure to be followed but the employer dismisses the employee without following the agreed disciplinary procedure.  In Gunton -v- London Borough of Richmond upon Thames (1980) IRLR 321, the contract of employment was expressed to be terminable upon one month's notice but there was also an agreed disciplinary procedure.  The Borough dismissed the employee on one month's notice but without following the agreed disciplinary procedure.  The High Court held that the dismissal was in breach of contract and the employee was entitled to damages assessed on the basis that he was entitled to remain in the Borough's employment until normal retirement age subject to the usual contingencies.  The Court of Appeal allowed the Borough's appeal.  Shaw L J referred to the general right of an employer to dismiss on notice for any reason or for none and held that the disciplinary procedure did not have the effect of varying that right to dismiss on notice.  The majority (Buckley L J and Brightman L J) held that the disciplinary procedure did disenable the Borough from dismissing the plaintiff on disciplinary grounds until the disciplinary procedure had been carried out.  But the disciplinary procedure modified the power to dismiss on notice only to the extent that the two provisions were irreconcilable.  Accordingly the existence of the disciplinary procedure did not affect the employer's right to dismiss on notice for any reason (including for no reason) other than a disciplinary one.  For the purpose of calculating the loss suffered by the employee as a result of the breach of contract, it was to be assumed that the employer would have dismissed on notice immediately following the conclusion of the disciplinary procedure.  It followed that the employee was only entitled to damages for lost wages in respect of the contractual period of notice (one month in that case) plus the additional period during which he would have remained in employment had the disciplinary procedure been concluded."

18.      The judgment set out a convenient summary of the position of Morrison J in Janciuk v Winerite Ltd (1998) I.R.L.R. 63 as follows:-

"It seems to us that the following principles apply:

(i)    Where a contract of employment is terminable upon notice, the measure of damages to which the employee is entitled on summary dismissal is the amount which the employer would have been bound to pay had his contract been terminated lawfully, less any receipts by the employee during that period earned by way of mitigation of his loss.  The employee is entitled to be put in the position he would have been in had the contract been performed.  It is assumed for this purpose that the employer would have dismissed the employee by notice given at the very moment that the summary dismissal was effected. 

(ii)     When, for the purposes of calculating compensation, the court considers what would have been the loss had the contract been performed, the court assumes that the contract breaker would have performed the contract in a way most favourable to himself.  This principle prevents the employee from recovering a windfall payment.  If there were two lawful ways of performing the contract, the employee will be compensated on the basis that the employer will have chosen to perform the contract in the way which was least burdensome to him: Laverack -v- Woods of Colchester (1967 1 QB 278.  Therefore, in a simple wrongful dismissal case, the court does not ask what might have happened had the employer known that he had no right to determine the contract summarily, and then calculate compensation on a loss of a chance basis.  The assumption is the employer would have chosen to have terminated the contract lawfully at the very moment that he had brought [or sought to bring] the contract to an end unlawfully in breach of contract.

(iii)    Some contracts of employment require the employer to follow a disciplinary procedure before notice of dismissal can be given.  In other words, the disciplinary procedure acts as a brake on the giving of notice.  In such a case, the employer would be acting in breach of contract if he gave notice terminating the contract without first having followed the correct procedure.  The measure of the loss for that breach is based upon an assessment of the time which, had the procedure been followed, the employee's employment would have continued.  Again, that does not require an analysis of the chances that had the procedure been followed the employee might never have been dismissed.  At this stage the court is engaged on a process of quantifying damage suffered by a dismissed employee.  The court is concerned to know what would have happened, contractually, if instead of unlawfully dismissing the employee the employer had not broken the contract, bearing in mind the Laverack -v- Woods principle.  For this purpose, the assumption that must be made is that the employer would have dismissed the employee at the first available moment open to him; namely after the procedure had been exhausted.  The court is not concerned to enquire whether the employee would have been dismissed had the contract been performed, but rather for how long would the employee have been employed before the employer was contractually entitled to give notice.  This is on the assumption that the employer had not been accused of acting in bad faith where other principles might apply.  Authority for this proposition comes from Gunton -v- London Borough of Richmond upon Thames; Boyo -v- London Borough of Lambeth; and Focsa Services (UK) Limited -v- Birkett."

19.      Birt, Deputy Bailiff, found no authority for the penultimate sentence from the judgment of Morrison J concerning bad faith in cases to which he had been referred:-

"On the contrary, given that the law is clear that an employer may dismiss on notice capriciously, unreasonably or for no reason at all, it seems hard to see where any question of bad faith may be relevant."

20.      I have set out the customary law position fully in this way in order to make it clear that under our customary law an employer can dismiss on notice unfairly, in particular where he is in breach of disciplinary procedure set out in the contract of employment.  In McDonald, heard when the Employment (Jersey) Law 2003 had been passed by the States but not brought into force, Mr Le Quesne for the employee argued strenuously that the customary law should be developed to address this unsatisfactory situation:-

"In his eloquent and powerful written and oral submissions, Mr Le Quesne argued that the established law was no longer suitable in the present day and did not adequately protect an employee against high-handed or wrongful conduct by an employer.  Given that employment was a highly significant component of an individual's life and that, following dismissal, there was in reality often an on-going loss in terms of continued loss of income because of a failure to find a similarly paid job, it was unjust that damages should be artificially restricted to the period of notice provided for under the contract, no matter how unfair or unreasonable the dismissal by the employer had been.  The inadequacy of the common law had been recognised by Parliament in England which had introduced the remedy of unfair dismissal.  The Jersey courts should take the opportunity of developing the law in accordance with modern day requirements."

21.      This submission was firmly rejected by the Court:-

"We do not think that this would be an appropriate way in which to proceed.  The fact is that, although the statute may not yet actually be in force, the legislature has made a decision as to how it wishes to proceed.  The legislation has been passed and is ready to be implemented.  In our judgment it would not be proper for the Court, in these circumstances, to develop the customary law in a manner which it knows is quite inconsistent with the path chosen by the legislature.  It would be a recipe for chaos for the Court to proceed as Mr Le Quesne suggests.  It would be different if the States had simply been at the consultation stage, with no certainty as to what, if any, legislation might be enacted.  In those circumstances, if the Court were to develop the customary law, the States would be able to take note of this and decide whether the customary law as developed met the needs of society or whether a statutory remedy was still required.  The statutory remedy would be structured to take account as necessary of the developed customary law.  But that is not the case here."

22.      That Employment (Jersey) Law 2003 has now been implemented and the reasons put forward by the Court for not developing the customary law therefore apply with even greater force.

Decision of the Master

23.      The central finding of the Master is set out in the following extract from his judgment:-

"The plaintiff's Order of Justice although it does refer at paragraph 4 to "automatic Unfair Dismissal" clearly establishes the cause of action as one in breach of contract.  In considering the application under this ground I must not, of course, have regard to any evidence put before me (see Rule 6/13(2) of the Royal Court Rules).  The plaintiff in his Reply and Further and Better Particulars does elaborate on the grounds on which he claims damages for unfair dismissal.  Notwithstanding that fact, however, I am satisfied that the Order of Justice as framed does establish a reasonable cause of action in seeking damages for breach of contract.  I decline, therefore, to strike out the plaintiff's claim on that ground.  I should add that I have given very careful consideration as to whether I should strike out any part of the plaintiff's Reply and Further and Better Particulars (with particular reference to the issue of unfair dismissal).  Taking into account the fact that the plaintiff is not legally represented and looking at matters broadly I do not consider it is necessary or appropriate for me to take that course of action.  I do not, however, express any view on the merits of that aspect of the plaintiff's claim especially in the light of the decision in the McDonald case.  Although there may be weaknesses and flaws in the plaintiff's claim I am satisfied that the Order of Justice does raise a cause of action and questions fit to be decided by the Royal Court."

24.      Clearly the Master had in mind striking out that part of the plaintiff's claim which related to unfair dismissal but declined to do so principally because the plaintiff was not legally represented.

Submissions - unfair dismissal

25.      Mr Cadin, for the defendant, made it clear that the defendant was not playing procedural games.  He submitted that the plaintiff's claim as a matter or law was obviously unsustainable and unarguable on all of the facts.  It was wholly misconceived.  The plaintiff acknowledges that he had no remedy under Jersey law for unfair dismissal and instead seeks to assert a claim based solely on English statutory law.

26.      Whilst recognising that the Court may give litigants in person some leniency, he argued that allowing claims based entirely on English law to continue is both wrong in law and fails to manage the legitimate expectations of the parties.  It merely gives the plaintiff false hope and requires the parties to incur significant costs.  A claim, doomed to fail, brought by a litigant in person, for £910,000 is most unlikely, he said, to settle.

27.      I accept these submissions.  Allowing a litigant in person to continue with a claim which is obviously unsustainable is unfair to the defendant in that it is required to incur costs in defending the claim, costs it may be unable to recover, and unfair to the plaintiff in that it exposes him to a serious risk as to costs.  The level of costs payable in a Royal Court action of this kind could be financially disastrous to a litigant of ordinary means.

28.      I also agree that the plaintiff's claim in unfair dismissal is obviously unsustainable:-

(i)        The contract of employment was between a Jersey corporation carrying on business in Jersey and a Jersey resident and the employment was to be performed in Jersey.  The employment had no connection with the English jurisdiction.

(ii)       Although the contract contains no express governing law clause, it is governed by Jersey law being a jurisdiction with which it is most closely connected.  Indeed it has no connection with any other jurisdiction.

(iii)      Save as set out below, the plaintiff accepts that there is nothing in the contract either expressly or by way of implication to indicate that English statutory law was to apply.

29.      The plaintiff's argument relates to clause 12 of the contract of employment which refers to and therefore incorporates into the contract the staff handbook.  Section 10 of the staff handbook, dealing with Discipline and Conduct, has the following introduction

"This section is based on, and is in the spirit of, the ACAS discipline at work document, copies of which are held by group managers, shop stewards and in the library."

30.      It is this reference to ACAS (the United Kingdom Advisory Conciliation and Arbitration Service) upon which the plaintiff relies for his contention that the defendant used the Employment Rights Act 1996 to formulate the contract of employment and accordingly that Act is to apply to the contract.

31.      Leaving aside the fact that this reference to ACAS applies only to Section 10 of the staff handbook on Discipline and Conduct and is not contained in Section 12 on Inefficiency Procedure, the procedure applicable in the plaintiff's case, this argument is plainly and obviously hopeless.

32.      The plaintiff is aggrieved at the failure of the defendant to follow the inefficiency procedures set out in the staff handbook.  He feels strongly that he has been treated unfairly in this respect.  The contract of employment, in his view, is there to fully protect his interests and because he has no remedy under Jersey customary or statutory law, he is asking the Court to import English statutory law in the interests of justice.  However, the Court has no such power.  It cannot import statutes from foreign jurisdictions to remedy defects it may perceive in the laws of Jersey.  It is for the legislature to remedy such defects, which it has subsequently done through the Employment (Jersey) Law 2003.  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.

33.      If you go through the exercise, declined by the Master, of removing that part of the plaintiff's claim for unfair dismissal based on English statute, there is in fact nothing left, as acknowledged by the plaintiff.  He brings no claim either in breach of contract or for unfair dismissal under Jersey customary law or Jersey statutory law.

34.      In paragraph 16 of his judgment, the Master made the observation that Mr Cadin's submissions ignored the last sentence of McDonald, cited in paragraph 17 above which addresses the circumstances where an employee may be entitled to damages for lost wages both for the contractual notice period and for the additional period during which he would have remained in employment had the disciplinary procedure been followed.  Mr Cadin said that submissions were made to the Master in this respect but, more importantly, no claim is brought by the plaintiff for any additional period during which he would have remained in employment had the disciplinary procedure been followed.  Furthermore Mr Cadin pointed out that the staff handbook does not provide for any minimum periods for compliance with the warnings and therefore under the procedure an employee may be dismissed in a matter of days or weeks and certainly well within the equivalent of 3 months' notice given.

Submissions - Claim for the return of the Employer's Pension Contributions

35.      The plaintiff accepts that under the provisions of the Occupational Pension Scheme, he had two options, namely:-

(i)        A refund of his own contributions only, with 3% per annum interest less 10% being the tax levied by the Comptroller of Income Tax in regard to tax relief which may have been enjoyed when the contributions were paid; or

(ii)       A transfer value (which would have comprised employer and employee contributions) to another pension scheme.

36.      On 14^th November, 2001, the plaintiff opted for the first option and received a refund of the contributions made by him.

37.      The plaintiff's argument is that, notwithstanding the provisions of the Occupational Pension Scheme, the defendant is contractually obligated under Clause 3(6)(b)(ii) to transfer to him the amount of the employer's contributions.

38.      At the hearing, the plaintiff expanded his submissions by referring to Clause 3(6)(b)(i) of the contract of employment which provides that the employee is entitled to salary and benefits to the date of termination of employment.  He argued that the term "benefit" included pension contributions paid into the Occupational Pension Scheme by the defendant.

39.      Advice was obtained by the administrator of the scheme from Carey Olsen who in their letter of 22^nd July, 2004 pointed out that neither the expression "employee's account" nor "Occupational Pension Scheme" is defined in the contract of employment and accordingly that there would appear to be conflict between the provisions of the employment contract and the scheme regulations.  They make the point that if the employer has undertaken contractual obligations and made promises under the contract of employment, it is for the employer to meet those obligations and not the scheme.

40.      Mr Cadin submitted that this claim is based upon the plaintiff's misreading and misinterpretation of this clause of the contract of employment.  The clause uses the word "transfer" and not "refund" and it is a transfer to the "employees account" under the "Occupational Pension Scheme".  The plaintiff was given the option of transferring that value to another scheme but opted instead for a refund of his own contributions.

41.      Whilst I acknowledge the force of Mr Cadin's arguments, in my view the plaintiff's case raises a question of interpretation fit to be decided by the Court.

Decision

42.      For the reasons set out above, I therefore allow the appeal and overturn the Master's decision to this extent, namely that I strike out the whole of the plaintiff's claim contained in the Order of Justice other than the claim for the refund of the employer's contributions under the Occupational Pension Scheme.

Authorities

Employment (Jersey) Law 2003. 

Employment Rights Act 1996.

Garfield Bennett v Phillips 2002/214.

Royal Court Rules 2004.

In re Esteem Settlement [2000] JLR 119.

Supreme Court Practice 1999.

McDonald v Parish of St Helier [2005] JLR 212.