BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of an application by Darius Pearce [2012] JRC 217 (20 November 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_217.html Cite as: [2012] JRC 217 |
||
[New search] [Help]
Employment - application for leave to appeal a decision of the Employment Tribunal.
|
Before : |
J. A. Clyde-Smith, Commissioner, sitting alone. |
IN THE MATTER OF THE APPLICATION OF DARIUS PEARCE (THE APPLICANT) UNDER ARTICLE 94 OF THE EMPLOYMENT (JERSEY) LAW 2003 FOR ELAVE TO APPEAL A DECISION OF THE EMPLOYMENT TRIBUNAL.
Darius Pearce appeared on his own behalf.
judgment
the commissioner:
1. The applicant ("Mr Pearce") applies for leave to appeal against an interim decision of the Jersey Employment Tribunal ("the Tribunal") made on 30th July, 2012, that he was the employer of Miss Kirsty Garcia ("Miss Garcia") who had filed a complaint of unfair dismissal against him.
2. Mr Pearce attended the application for leave before me with no papers at all. He was given time to return to his office to obtain the documents he wished to rely on for the purposes of his application and with the assistance of the Assistant Judicial Greffier a bundle of relevant papers was assembled.
3. Article 94 of the Employment (Jersey) Law 2003 ("the Employment Law") provides that an appeal on a question of law only shall lie from a decision of the Tribunal to the Court with the leave of the Tribunal or of the Court. The Tribunal denied leave in this case.
4. It was held in Voisin-v-Brown [2007] JLR 141 at page 143 that an appeal on a question of law will arise where it can be shown that (a) the Tribunal had misdirected itself in law or misunderstood or misapplied the law; (b) there was no evidence to support a particular conclusion or finding of fact; or (c) the decision was either perverse, in that it was one which no reasonable tribunal directing itself properly on the law could have reached, or was obviously wrong.
5. Miss Garcia filed her complaint with the Tribunal on 3rd April, 2012. In it she named Mr Pearce as her employer giving his address as "Darius Pearce Jewellers" at 73, 74 and 80 the Central Market, St Helier. She stated that her employment had started on 23rd May, 2011, and ended on 2nd April, 2012. Her job was as a jewellery shop assistant/online retailer for shop stock, working 25 hours per week at a gross weekly pay of £162.50. She alleged that on 2nd April, 2012, in circumstances that need not be set out here she had been verbally forced out of the shop. Her claim was for a relatively small sum in unpaid wages and notice pay.
6. The Tribunal wrote to Mr Pearce on 5th April, 2012, notifying him of the receipt of the complaint brought by Miss Garcia and enclosing a copy of the complaint together with the employer's response form (JET2) for him to complete and guidance notes to assist him. For reasons that are not clear, the letter cites as the respondent "Darius Pearce Jewellers Limited" although the complaint itself makes no reference to any such entity.
7. Mr Pearce emailed the Tribunal on 10th April, 2012 ,with the following observations:-
"1) I have and have never had an employee by the name of [Miss Garcia] as she refused to sign a contract of employment, thus the details of our arrangement are outside your purview.
2) Miss Garcia did offer her services to me from time to time on a self-employed basis and left of her own accord.
3) On the 5th April, Miss Garcia informed me that she longer wished to allow me to use her services and left of her own accord. As the balance stands she has been overpaid for the services she provided. I would be grateful if you would arrange for her to repay the monies owed to me at her earliest convenience."
8. The Registrar of Appeals & Tribunals ("the Registrar") replied that in the light of his message, it was assumed he would be resisting the complaint and he therefore needed to complete the JET2 form and include a request that the complaint of Miss Garcia be struck out for the reasons set out in his message.
9. Mr Pearce responded to the Registrar somewhat threateningly as follows:-
"I am stating that you are not empowered under the legislation to become involved in this matter, your remit is between employees and employers exclusively, this complaint does not fit that requirement.
Any attempt by you, or any person purporting to act within the relevant legislation, to exceed your legal authority will result in a commercial lien being placed upon you personally, as should you act outside the terms of your employment (i.e. in a manner which contravenes statute) then there is no vicarious liability on the part of your employer for the damages arising from your actions.
When you have shown that there is a case to answer, then I shall answer it. I will not make any further answer until you establish jurisdiction.
I would suggest that the best way forward is to seek some form of proof to confirm the statements made by [Miss Garcia]. A contract of employment would be a good place to start, not that it is my place to tell you how to do your job.
I, of course, know that you will not be able to provide one as there is not, nor has there ever been one." (his emphasis)
10. On 11th April, 2012, Mr Pearce e-mailed the Registrar saying that although he was unwilling to fill in the form JET2 as it was not relevant, he wished to make a statement which he was willing to swear on oath and which can be summarised as follows:-
(i) Miss Garcia worked on premises which he rented in the market, on the basis that "her sister, Fiona Garcia, was an employee of mine until 31st December 2011, at which point she became contracted exclusively under the jurisdiction of the common law."
(ii) As Miss Garcia was finding it difficult to find work and as a favour to her sister he allowed the sister "to sub-contract her contractual obligations to [Miss Garcia] on an ad hoc basis." He offered Miss Garcia a contract in her own right but she was unwilling to work on Saturdays.
(iii) Miss Garcia and her sister are part of the same family unit sharing residential accommodation and therefore any arrangement between them is beyond the scope of the Employment Law,
(iv) He drew up a memorandum of understanding which "as it placed no obligation whatsoever on [Miss Garcia], cannot be considered a contract, let alone a contract of employment." Part of that memorandum was that payment would be made direct to Miss Garcia rather than through her sister.
In circumstances which again it is not necessary to set out in this judgment, he said Miss Garcia had a temper tantrum on 2nd April, 2012, and walked out of her own accord".
11. On 13th April, 2012, the Assistant Judicial Greffier e-mailed Mr Pearce again suggesting that the form JET2 should be completed. Mr Pearce responded that he was happy to complete the form (although he did not do so), but did not see any basis on which the Tribunal could have any authority to act on the matter. Without proof of that authority the question of jurisdiction was unclear and he did not believe could be established. He asked whether Miss Garcia could respond to his questions and substantiate her allegations. He then went on to say this:-
"For the purposes of clarity I do not consent to these proceedings at this time and will not without a clear demonstration that the proceedings are proper within the context of the Law and/or Statute, and that an attempt to reach an agreement without a hearing has been attempted as is required by the demands of natural justice, but naturally I will comply with any Lawful order that a Court might issue.
However as 'a labourer is worth his hire' I should point out that this will leave you liable to settle my bill which will be in the sum of £250 per hour spent dealing with this matter or £2,500 per hour if my liberty is at all impeded, this includes being ordered to attend Court or any place at a specified time. This is per my standard fee schedule which has been submitted to the States and is now cured."
12. The Assistant Judicial Greffier responded with advice clarifying the function of the Tribunal and explaining that it was not her task to present Mr Pearce's questions to Miss Garcia. Mr Pearce responded in an e-mail which included the following:-
"Many thanks for your invaluable assistance. I have reviewed the law and it quite clearly states that it is only applicable to employers and employees and thus is clearly not applicable to me nor any of the persona that I may adopt from time to time.
Therefore in the absence of any evidence provided whatsoever, to suggest that the law MAY be applicable to me nor to any one of the legal persona I may adopt from time to time, and in the absence of any Lawful order to the contrary by a Court or similar body, I decline your invitation, at this stage, to voluntarily assist proceedings, however I do give conditional acceptance to your offer to the extent that should this change in the future, I will review my position."
13. A case management meeting was held at the Tribunal on 16th July, 2012, which Mr Pearce did not attend, although the Chairman was satisfied that he had been notified of it. The Chairman noted Mr Pearce's assertion that Miss Garcia was not employed by him "or any of his businesses" and accordingly an interim hearing was convened for 26th July, 2012, at 2:30pm "for the purpose of establishing if the Applicant was an employee of the Respondent or any of his businesses."
14. Mr Pearce was notified of this by letter dated 16th July, 2012, but in the correspondence and in the formal notice of the interim hearing, the respondent was now described as "Mr Darius Pearce, trading as Darius Pearce Jeweller & Jersey Online Traders". It is not clear from the papers why these particular trading names were added to his name. The formal notice required Mr Pearce to attend the interim hearing explaining how documents he wished to refer to at the hearing should be provided to the Tribunal office.
15. On the 16th July, 2012, Mr Pearce emailed both the Registrar and the Deputy Judicial Greffier complaining that "the Tribunal has changed the respondent to a person that I represent from time to time, without informing me and without the permission of the previous respondent (Darius Pearce Jewellers Ltd) who as far as I am aware does not exist". The proper procedure, he said, was for the complaint to be dismissed and for a new complaint to be issued by Miss Garcia, the time for which had unfortunately now expired.
16. Later that day, he sent a further e-mail to the Registrar saying that in view of the expiration of the time limit on applications to the Tribunal, he could now make the following statement which I would summarise as follows:-
(i) On numerous occasions, Miss Garcia was offered a contract with Jersey Online Traders Limited, trading as Nigel Pearce & Son, Jewellers, of which he was a director but not the beneficial owner, on condition that she worked on Saturdays, which she consistently refused.
(ii) In spite of this, Jersey Online Traders Limited made Social Security payments on behalf of Miss Garcia for the period from June - December, 2011. Any contract which the Tribunal may deem to have existed with Jersey Online Traders Limited terminated on 31st December, 2011.
(iii) Thereafter, as Miss Garcia lived with her sister she was to be a sub-contractor to her sister. This was fully explained to her.
(iv) From 1st January, 2012, he traded in his own name from the premises in the Central Market and therefore should the Tribunal decide that he was an employer, Miss Garcia would have been employed for less than the qualifying period of six months.
17. On 17th July, 2012, Mr Pearce e-mailed the Assistant Judicial Greffier, stating that the interim hearing could not proceed until the Royal Court had ruled on whether it was lawful to substitute the name of the original respondent. He asked for the hearing to be adjourned sine die. The Assistant Judicial Greffier responded accepting that there was some confusion as to who Miss Garcia's employer was when the original complaint was forwarded to Mr Pearce, but no formal response was made by him and therefore the name of the respondent has not been ascertained. In the circumstances "it can probably not be said that the name of the original respondent has been substituted." At the directions hearing the Chairman had tried to establish through Miss Garcia who she worked for. The company's register showed that Jersey Online Trading Limited was a registered private company and therefore the name of the respondent would be amended, but it would be of assistance to the Tribunal for Mr Pearce to confirm exactly how the respondent should be referred to in all documents and correspondence referring to this matter. The Assistant Judicial Greffier said that if he had attended the case management hearing then the question of who the respondent is and any queries concerning the directions could have been dealt with there and then. If he wished to have the hearing adjourned or the complaint dismissed then he must apply directly to the Tribunal. He was strongly advised to attend the interim hearing on 26th July, 2012.
18. On 18th July, 2012, Mr Pearce e-mailed the Assistant Judicial Greffier saying that he would attend the interim hearing but solely to represent the position with regard to non-compliance and ask for the case to be dismissed. If the Tribunal denied his application, he would immediately seek an adjournment to bring an action to the Court. In the event that both of these applications were denied, he required Miss Garcia to produce a bank statement showing the payments received. He did not see what evidence he could produce to prove "the non-existence of something".
19. Mr Pearce did not attend the interim hearing or submit any evidence but he filed a skeleton argument in which he relied on the following provisions of the Employment Law:-
(i) Article 1(6) which he said specifically states that where the employer is a family member and resides at the same address as the employee the Employment Law should not apply.
(ii) Article 1A(3) which he said states that where a contract between two parties is that of client or customer the Employment Law shall not apply.
(iii) Article 1A(2) which indicates that the Employment Law applies where there is a contract of service or apprenticeship.
Taking these provisions into account, his skeleton argument went on to say that it would be necessary for Miss Garcia to show:-
"that either there was a Contract of Service, or that there was another Contract in which neither party held the status of client and it will be necessary to show that the other party to the contract was not FIONA ELAINE GARCIA (hereinafter referred to as "the Employer")."
The sister was thereafter referred to as "the employer".
20. Miss Garcia, he argued, had named the respondent as Darius Pearce Jewellers Limited which was not a legal entity and the correct procedure on being advised of her error would have been to dismiss the case. Any failure of the Tribunal to do this would be a breach of his rights under Article 6 of the European Convention on Human Rights. Miss Garcia had, he said, failed to attempt a resolution of the matter prior to initiating proceedings and was therefore "in dishonour and the case should be dismissed on any or all of the following grounds:-
"a. That the Applicant has instituted proceedings without making any attempt at resolution, and without making any response to the attempts of the Employer to reach a settlement.
b. That the Respondent to the proceedings does not exist.
c. That the Applicant has not adduced a case before the tribunal, and certainly not one which can be responded to.
d. That the action is frivolous, trivial and/or vexatious
That if the Tribunal was not minded to dismiss the case that it must provide reasons and that the case be adjourned sine die in order that I may appeal to the Royal Court."
21. In its judgment of 30th July, 2012, following the interim hearing, the Tribunal dealt with a number of initial issues as follows:-
(i) With reference to Article 1(6) of the Employment Law it noted that this exception only applied where the employee in question participates in the running of a family business. There was no suggestion in the evidence that Miss Garcia's sister was a member of Mr Pearce's family business.
(ii) In relation to Article 1A(3) of the Employment Law, the Tribunal pointed out there was no evidence that Mr Pearce was Miss Garcia's client or customer.
(iii) The Tribunal expressed itself as satisfied that Mr Pearce had been kept fully up to date with the progress of Miss Garcia's complaint and indeed, it was in response to his complaint that the respondent had not been properly identified that the hearing had been convened. Mr Pearce had been invited to attend the hearing and knew its purpose. If the Tribunal ruled that Miss Garcia's employer was a party not related to Mr Pearce, then her application would indeed be dismissed.
(iv) Miss Garcia was under no obligation in law to attempt to conciliate or settle any issue arising under the Employment Law before filing her complaint and the Tribunal refused to dismiss her complaint on that ground.
22. At the interim hearing the Tribunal had the following evidence before it:
(i) The evidence of Miss Garcia. She informed the Tribunal that her sister worked for Mr Pearce at the time she commenced her employment and indeed, still works for him. Her sister suggested to Mr Pearce that Miss Garcia would be willing to work for him, as they needed assistance with the online orders. She contacted Mr Pearce about working at the shop and they spoke on the telephone. Mr Pearce described to her the hours of work, the rate of pay and the start date. She explained that she was on income support at the time and needed a letter from her future employer to hand to the Social Security Department confirming her employment and its terms, which Mr Pearce provided. The letter dated 12th May, 2011, is worded as follows:-
"NIGEL PEARCE & SON
JEWELLERS
Darius Pearce
Nigel Pearce and Son, Jewellers
73, 84 & 80 Central Market
JERSEY
JE2 4WL
Thursday, 12 May 2011
Dear Sir,
INCOME SUPPORT REF JY338149C KIRSTY LOUISE GARCIA
I am writing to confirm that I have offered employment to Miss Garcia on a full time basis commencing on the 23rd May 2011, salary will be paid monthly in arrears with the first payment in respect of this contract will be made on or before the 30th June 2011.
Miss Garcia will be paid an initial salary of £776 per month, she will be working 30 hours per week at an equivalent hourly rate of £6.50 per hour.
Kind regards
Darius Pearce"
The foot of the letter contains the following "Jersey Online Traders Limited t/a Nigel Pearce & Son, Jewellers 73,74 & 80 Central Market, Jersey JE2 4WL."
Miss Garcia told the Tribunal that she considered Mr Pearce to be her employer. When at work she would comply with his instructions regarding the work to be done and how to do it. She was very clear in her evidence that Mr Pearce was her employer and not her sister; indeed, her sister was an employee as well. She informed the Tribunal that she did not receive the amount in wages that Mr Pearce had described in his letter of 12th May, 2011. Despite that letter, Mr Pearce told her that he did not intend to employ her for more than 25 hours a week. She was concerned that she was receiving into her bank account a sum equal to the amount of the salary she earned on a weekly basis and that no deduction for Social Security was being made by Mr Pearce. She reported her concerns to the Social Security Department and an investigation was held.
(ii) Miss Garcia produced to the Tribunal a copy of her Social Security contribution records for 2011 and 2012 that referred to her employer being "N Pearce & Son Jewellers" between 1st June, 2011, and 31st December, 2011.
(iii) Miss Garcia produced copies of her bank statement showing monthly payments into her account between 27th June, 2011, and 2nd April, 2012, from "DARIUSPEARCE SALARY".
(iv) The correspondence from Mr Pearce to the Tribunal; in particular his email of the 11th April, 2012, in which he stated that he rented the premises in the central market and that Miss Garcia's sister was an employee of his and his email of the 16th July, 2012, in which he stated that he traded from the Central Market premises from the 1st January, 2012.
23. It can be of little surprise that in the absence of Mr Pearce and on the evidence before it the Tribunal found that:-
(i) There was no evidence to support the suggestion that Miss Garcia's sister was her employer.
(ii) Mr Pearce was Miss Garcia's employer.
(iii) Miss Garcia's complaint was not frivolous, trivial or vexatious.
Leave to appeal was denied.
24. Mr Pearce seeks leave to appeal against the decision of the Tribunal on the grounds as set out in his document e-mailed to the Assistant Judicial Greffier on 24th October, 2012, as follows:-
(i) No case was properly adduced. The case, he said, was based on the testimony of one person, Miss Garcia, who not only provided no supporting evidence but adduced evidence which undermined her own case.
The Tribunal was perfectly entitled to reach a finding on the basis of Miss Garcia's evidence alone, Mr Pearce having elected not to participate, if that had been the only evidence before it but it was not the only evidence before it as is clear from the above. I accept that on the one hand the companies register showed that Jersey Online Traders limited was an incorporated company (unlike Darius Pearce Jewellers Limited) and the foot of the letter of the 12th May, 2011, showed it as trading as Nigel Pearce & Son, Jewellers. On the other hand (a) in the same letter "Darius Pearce" had been inserted under the trade name in a prominent position at the top of the letter and the letter had not been signed by him as a director (b) the bank statements showed Miss Garcia's salary coming from a source with the name "DARIUSPEARCE" and (c) Mr Pearce had himself stated in correspondence that he rented the Central Market premises and traded from there in his own name. On any analysis there was more than sufficient evidence before the Tribunal in addition to the evidence of Miss Garcia for it to find that Mr Pearce was Miss Garcia's employer.
(ii) In order to claim jurisdiction, the Tribunal must establish "beyond all reasonable doubt" the existence of a contract.
That is clearly incorrect - the standard of proof is that which applies in all civil proceedings, namely the balance of probabilities. It was not in dispute Miss Garcia worked in these Central Market premises over the period concerned and was paid and it is manifest therefore that there was a contract of service. The preliminary issue was the precise identity of the employer, which on the evidence before the Tribunal it found to be Mr Pearce.
(iii) Mr Pearce submitted that the original respondent was Darius Pearce Jewellers Limited, an entity which following a company search he found did not exist and which in error and arbitrarily the Tribunal simply changed. Whilst he acknowledged that under Article 89 of the Employment Law the Tribunal had all the powers rights and privileges vested in the Royal Court, he had examined the Royal Court Rules 2004 and nowhere do the Rules allow the Court to change the identity of either party. The original application should therefore have been dismissed.
This submission is incorrect in two respects. Firstly, in her application (which was copied to him) Miss Garcia named Mr Pearce personally (not Darius Pearce Jewellers Limited) as her employer. He was the respondent. It was the Tribunal in its correspondence that referred, erroneously, to Darius Pearce Jewellers Limited. Secondly, Rule 6/36 of the Royal Court Rules empowers the Court at any stage of the proceedings on such terms as it thinks fit to add as a party any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause of matter may be effectively and completely determined and adjudicated upon. The Tribunal was therefore empowered under Article 89 firstly to correct its error by naming him personally as a respondent and secondly to add Jersey Online Traders Limited as a respondent.
(iv) Mr Pearce asserted that Miss Garcia had sworn a statement to the Social Security Department that she was employed by Nigel Pearce & Son Jewellers. This statement was not produced either to the Tribunal or indeed to this Court and therefore no conclusions can be drawn from it.
(v) The most significant piece of evidence, Mr Pearce said, the Tribunal relied upon was the bank statements where the Tribunal erroneously referred to the payor as "Darius Pearce". In fact it was "DARIUSPEARCE" which he said was the user name of the person authorising the payments on the account. The source bank account, he said, was Jersey Online Traders Limited trading as Nigel Pearce & Son Jewellers. Although the Tribunal was unaware of any of this it had, he said, been advised that he had never given any monies to the applicant.
It is correct that the bank statements describe the payor as "DARIUSPEARCE" but Mr Pearce had not explained to the Tribunal that this was a user name only nor had he adduced any evidence before the Tribunal as to the identity of the source bank account. The skeleton argument he filed made no reference to Jersey Online Traders Limited or to it being the entity that had paid the salary of Miss Garcia; on the contrary the suggestion in the skeleton argument was that it was Miss Garcia's sister who was the employer.
25. In his grounds of appeal, Mr Pearce said that if leave to appeal was granted, he would produce the following evidence inter alia:-
(i) The written contract given to Miss Garcia, which he says she refused to sign.
(ii) A copy of "the non-contractual notice of understanding and intent", which he said was given to Miss Garcia in December 2011.
(iii) A copy of the statement given by Miss Garcia to the Social Security Department in April 2012.
(iv) Copies of the bank statements evidencing the source of the funds which were deposited in Miss Garcia's bank account.
None of this documentation was produced to the Tribunal or to this Court.
26. Mr Pearce made extensive reference to the European Convention on Human Rights and in particular to Article 6, which provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, and Article 14 which provides that the enjoyment of the rights and freedoms in the Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, associating with the national minority, property, birth or other status.
27. In relation to Article 6 there has been nothing unfair in the procedure of the Tribunal, which is of course established by law. It was Mr Pearce who elected not to submit the form JET2, who did not appear either at the case management meeting or the interim hearing and who declined to file any of the evidence that was available to him. Instead he chose to submit a skeleton argument that suggested that it was Miss Garcia's sister that was the employer.
28. In relation to Article 14, he asserts that he was forced to represent himself against an applicant who has enjoyed unrestricted use of government resources to prosecute a claim that was never properly adduced. From the correspondence before me, it seems clear that the Tribunal has given the same guidance and access to advice to both parties and there was nothing to support the assertion that Mr Pearce has been discriminated against on any of the grounds set out in Article 14.
29. Mr Pearce challenged the jurisdiction of the Tribunal on a number of grounds including that he was not "a member of the Island of Jersey and its dependencies" and therefore he was not subject to its rules and regulations. To become subject to such rules and regulations required, he said, a voluntary act on his part. He told me it was for this reason that he had not attended the hearings as to do so would have given the Tribunal jurisdiction over him. He had attended the application for leave as "a child of God" whose jurisdiction was the only one he recognised. At the same time he confirmed that he lived in Jersey.
30. Articles 76 and 86 of the Employment Law are clear as to the Tribunal's jurisdiction in this matter. Article 101 (1) provides that the Employment Law shall only apply to employment "where the employee works wholly or mainly in Jersey". It was not in dispute that Miss Garcia worked wholly in Jersey.
31. Mr Pearce informed me at the hearing that he declined to complete the form JET2 as requested by the Tribunal because, having seen the error as to the identity of the respondent in the letter from the Tribunal (there was no such error in the actual complaint which he also received), he wanted the time period for the filing of complaints to expire, thus preventing Miss Garcia from bringing a further complaint. Even after that time had expired, he made a conscious decision not to appear before the Tribunal or to produce any of the evidence on which he now wishes to rely. In conducting himself in this way, he cannot now complain about the decision reached by the Tribunal on the evidence that was actually before it.
32. In my view, an appeal has no prospect of success and leave is refused. It is not alleged that the Tribunal misdirected itself in law or misapplied or misunderstood the Law and in any event in my view it did not do so. It cannot be argued that there was no evidence before the Tribunal to support its finding that Mr Pearce was the employer; there clearly was. That being the case, it cannot be argued that the decision of the Tribunal was perverse or obviously wrong.
33. This brings me to a further issue. Article 95 of the Employment Law provides as follows:-
34. Mr Pearce's e-mail of 11th April, 2012, and the skeleton argument filed by him suggested that Miss Garcia was employed by her sister Miss Fiona Garcia; certainly the Tribunal interpreted his submissions that way (see paragraph 16 of its judgment of 13th July, 2012,). In an email to the Assistant Judicial Greffier of the 18th July, 2012, he said that he had discussed the matter "with Miss Garcia's employer, Miss Fiona Garcia" who preferred to see the matter settled.
35. The Tribunal will need to give consideration following the final hearing of Miss Garcia's claim and in the light of all the evidence finally adduced before it whether this aspect of the matter should be referred to the Attorney General for him to investigate whether an offence has been committed by Mr Pearce.
