Hyacinth Downer v LV Care Group Limited (1) Tracey Gentry (2) Alexandra Granger

IN THE JERSEY EMPLOYMENT AND DISCRIMINATION

TRIBUNAL

BETWEEN

HYACINTH DOWNER

APPELLANT

AND

LV CARE GROUP LIMITED

TRACEY GENTRY

ALEXANDRA GRANGER

RESPONDENT (1)

RESPONDENT (2)

RESPONDENT (3)

LEAVE TO APPEAL JUDGMENT Reference: [2023] TRE 04 Before: Advocate I C Jones, Deputy Chairman

DECISION The Claimant’s application for leave to appeal is refused.

DECISION The Appellant's application for permission to appeal against the decision of the Tribunal dated 23rd January 2024 (the "Judgment") is refused.

1.

INTRODUCTION 1.1. The Appellant seeks leave to appeal pursuant to Article 94(1) of the Employment (Jersey) Law 2003 (the “Law”) which states as follows: "A person aggrieved by a decision or order of the Tribunal may, on a question of law only, appeal to the Royal Court by applying to the Tribunal for leave to appeal." [EMPHASIS ADDED] 1.2. Accordingly the Appellant will not be granted leave to appeal unless the ground of appeal raises a 'question of law'. The Tribunal has previously considered the nature of a 'question of law' generally and in the context of Article 94(1) of the Law, recently in Parker -v- Ecoheat [22nd May 2017], which characterises a 'question of law' as follows: (i) the Tribunal has misdirected itself in law or misunderstood the law or misapplied the law; and / or (ii) there was no evidence to support a particular conclusion or finding of fact; and / or (iii) the decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached, or alternatively, was one which was obviously wrong. I can see no reason not to adopt the above definition or otherwise qualify / modify it. I note that the Appellant does not address the relevant tests set out above and which one (or all) that she seeks to rely on. 1.3. The Appellant also makes an application for an extension of time to file her notice of appeal

and supporting grounds pursuant to Article 94(1)(3) of the Law. The stated basis of that application is as follows: “Although I sent in my application yesterday, there is many points that I wish to say, but I just quite frankly ran out of time…” The difficulty with this application is twofold: (i) the Appellant has in fact provided extensive grounds of appeal via email; and (ii) even if that were not the case, in my view, and with the greatest of respect to the Appellant, simply ‘running out of time’ is not a proper basis upon which to obtain an extension of time. The statutory time limit within which to file a notice of appeal is on the face of it ample time within which to formulate and file grounds of appeal; hence why such time limit was fixed by the legislature. Put another way, the time limit is there for a reason and the Tribunal has made it clear on previous occasions that the time limit will be enforced and / or adhered to unless proper and compelling reasons are put forward that amount to exceptional circumstances arising. 1.4. The Appellant does not put forward compelling reasons at all for an extension; in truth she puts forward no reasons at all and there is certainly no identifiable circumstances that could be described as exceptional. The circumstances seeminly relied on are anything but exceptional and in the absence of any reason as to why the Appellant ‘ran

out of time’ there is no basis upon which to grant the extension that she seeks. The application is accordingly refused. 1.5. Substantively, the Appellant contends that the the Tribunal: (i) had no evidence to support a conclusion or a finding of fact; (ii) made a decision that no reasonable tribunal could have made or reached a decision that was obviously wrong; and / or (iii) did not follow the correct procedures.

2. THE GROUND(S) / DISCUSSION 2.1. From a close review of the appeal contentions filed by the Apellant, it is not a straight-forward task to identify what the ground / grounds of appeal are, by reference to the above-captioned tests or otherwise. Being as fair to the Appellant as possible, what she seeks to do is challenge the evidential findings that have been made against her by reference to the evidence the Tribunal had before it. 2.2. The Appellant also seems to accuse the Tribunal and the various witnesses of ‘perjury’ albeit this is not explained at all coherently. What the Appellant seems to be arguing as a consistent theme / ground throughout her contentions is that the witnesses for the Respondent ‘lied’ when giving their evidence. The Appellant also considers that the Tribunal also ‘lied’ albeit it is not altogether clear how the Tribunal when making its findings could be understood as lying. 2.3. The starting point for considering an application for leave to appeal is firstly the test set out above and then the headline grounds as identified by the Appellant and as recorded at paragraph 1.5 above. 2.4. As to ground (iii) the grounds do not identify how the Tribunal failed to follow the correct procedures. Nor do the grounds explain why the Appellant takes this point. 2.5. As to grounds (i) and (ii), for the purposes of this application in my view these grounds are

very much related. The Appellant in each of her grounds seeks to argue that the evidential findings made by the Tribunal are either based on no evidence or were unreasonable in that based on the evidence that was heard it was not open to the Tribunal to make the findings that it did. 2.6. In my judgment the Appellant has two insuperable difficulties in this approach: (i) as is detailled in the Judgment, there was ample evidence upon which to make the findings that the Tribunal did make. The Tribunal was made up of a Deputy Chair and two panel members each of whom assessed the evidence, discussed it following the hearing and reached determinations as a result of that process; (ii) as is set out in the Judgment, the Appellant made the decision not to ask any questions of the witnesses called by the Respondents (or the vast majority of them) and so in the main the evidence presented by the Respondents was unchallenged. 2.7. As set out in the Judgment (at section 4): “Unfortunately for Ms Downer, her own conduct made it somewhat easier for the Respondents to resist / answer the claims that were being made than it otherwise might have been. The Tribunal has given careful consideration to this dynamic which, while it should never be allowed to afford the Claimant an advantage, it was still important to ensure that the process was fair to the Respondent, notwithstanding that much of

what is set out above is either agreed or was not substantially challenged by Ms Downer. The Tribunal has taken into account that Ms Downer did not raise any real challenge to the evidence called by the Respondents as well as serious concerns as to her own credibility: [EMPHASIS ADDED] (i) there seems to be little doubt to the Tribunal either that Ms Downer lied to LV Care in her application form (in relation to the ‘dormant asthma’ when she declared that she did not have this condition) or was lying to the Tribunal in the hearing when she gave evidence that she did have this condition. It is significant that Ms Downer, despite having a medical background chose to present no medical evidence on this important point. That decision did not help Ms Downer. Indeed, Ms Downer was on this point (and in general) vague and evasive which has counted against her in terms of her credibility; (ii) Ms Downer was not prepared to disclose who (or what) made the referral / complaint about her to the NMC. As above that is material information and is certainly relevant to these proceedings. Ms Downer offered no good explanation for failing to do this. Again she was entirely evasive on the point; (iii) Ms Downer failed to do what the Tribunal had asked of her (and thereby failed to assist herself) and again offered no good reason for this failure. Indeed at this point Ms Downer had decided to

stop participating in the process at all but again, this reflected poorly on her. In the final analysis, the question for the Tribunal was whether or not Ms Downer had proved her case. The Tribunal had very little hesitation in concluding that Ms Downer had come nowhere close to discharging her burden in that regard. Indeed, the Claimant fell so far short of the mark that the Tribunal ultimately agreed with the submissions made by Counsel for the Respondents, that this was a tactical claim that on the balance of the evidence was doomed to failure. In Mr Flynn’s submission this claim was an artifice which was designed to exert pressure on LV Care to invite Ms Downer back into their employ. The Tribunal agrees.” 2.8. In my view the grounds of appeal relied on by the Appellant amount to an attempt to challenge factual findings of the Tribunal. Indeed, I would go further and say they amount to an attempt to relitigate points either that were not properly pursued by the Appellant at the final hearing or were not pursued at all owing to the choice she made not to participate in the process. 2.9. It is not open to the Appellant to seek to challenge factual findings of the Tribunal in circumstances where those findings were made on the basis of the evidence that was heard and in the main not subjected to any challenge. It is axiomatic that an appeal has no prospect of succeeding if the

basis of that appeal is that a particular witness lied when giving evidence but the backdrop of that contention is one where the evidence was never challenged in the first place. 2.10. With the greatest of respect to the Appellant, to the extent that any of the points made in her appeal contentions are good points, they are points that should have been made properly during the final hearing through examination of witnesses and submission. As detailed in the Judgment, in the main the Appellant chose not to examine any witnesses and made no attempt to make any submissions. 2.11. The truth of the matter is that the Tribunal had grave concerns as to the credibility of the Appellant and her motivations for bringing the claim that she did and in the final analysis she failed to discharge the burden of proof she was required to. An appeal is not a re-hearing but a review by the Royal Court as to errors of law. The Appellant identifies no errors of law, outside of her disagreement and dissatisfaction with the findings of the Tribunal. Leave to appeal is accordingly refused. 2.12. For completeness I note that the Appellant also seemingly appeals against the decision not to find in her favour in relation to an unpaid wages claim and in relation to a claim for statutory compensation as to her not receiving her payslips. While no identifiable grounds whatsoever are set out as to these

appeals, the position is as follows: (i) in relation to unpaid wages, by the time of the hearing this had been resolved and Ms Downer confirmed that any unpaid wages etc. had been received. Accordingly this claim was not pursued before the Tribunal; and (ii) in relation to pay-slips while it was accepted (by the Respondent) that there had been a technical breach of the Law, the fact of the matter was that Ms Downer had received her payslips. I note that Ms Downer was employed for less than 1 month and pursuant to the Law and the guidance / policy of the Tribunal it was well within the discretion of the Tribunal not to award the Appellant any compensation in this regard.

ORDERS

ACCORDINGLY Advocate Ian Jones, Deputy Chair Date: 28 Februrary 2024