XCHRX WAN WAH SUM v. TAI HING COTTON MILL LTD.

HCLA 1/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 1 OF 2000

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. LBTC 8005 OF 1999)

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DECISION

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1. This is an application for leave to appeal against the award made by the Presiding Officer of the Labour Tribunal on 23 December 1999 whereby the claimant was awarded $100,611.81, being wages in lieu of notice, long service payment, sick leave allowance and additional 7 days' wages on account of the employment being terminated during the period of sick leave.

2. At the conclusion of the hearing, I refused the application for leave and gave brief oral reasons for the same. I now reduce the reasons into writing.

The Background

3. The claimant was formerly employed by the defendant as a watchman. On 23 June 1999, he was summarily dismissed by the defendant for the reason that he was involved in a fight with another watchman.

4. The incident giving rise to the summary dismissal happened at about 6 p.m. on 23 June 1999. The claimant was present with another watchman surnamed Chow inside the watchman duty room. Chow was dividing some lai chees into 3 lots. The lai chees were gift from a customer. The claimant admittedly commented that Chow had to be fairer in distributing the lai chees. On hearing that, Chow scolded the claimant in foul language, slapped him on his face and also splashed hot tea onto his chest. The claimant admittedly picked up a hammer from the tool box in the room and held it in his hand to guard against further attack. He later threw the hammer on the floor and went to the office to make a call to the police. The claimant was sent to the hospital and his injury to the chest was treated. He was given a sick leave certificate. On return to the place of work from the hospital, the claimant was told to go home. On the following day, he was informed by phone that he was dismissed. The reason is that he had been fighting and this had contravened the defendant's regulation.

5. At the trial, the defendant relied on clause 8(a) of the employment contract as justifying summarily dismissal. Clause 8(a) enables the defendant to summarily dismiss an employee for breach of the company regulation where the employee had been fighting, swearing at and insulting others, inciting or causing disturbances or disrupting public order.

The Grounds of Appeal

6. The first ground seeks to challenge the Presiding Officer 's findings on the basis that he had failed to consider or sufficiently consider the several aspects of the evidence as set out therein.

7. It has to be pointed out at the outset that appeals from the Labour Tribunal are only on points of law. Challenges to findings of fact can rarely be allowed. An appellate court will not disturb the findings of fact simply because another tribunal or the appellate court may form a different view on the evidence.

8. In this case, it has to be appreciated that the claimant had made no admission at the trial that he had assaulted or attempted to assault Chow. He denied having admitted to his superior, Kwan Chiu Chuen, and the supervisor of the personnel department, Chan Chun Sang, that he had thrown the hammer at Chow, but missed. His case is that there was never any fighting; on the contrary, he was attacked by Chow. The Presiding Officer found specifically that the claimant did not throw or aim the hammer at Chow, that the claimant had no intention to cause bodily harm to Chow. The Presiding officer further found that there was insufficient evidence to suggest a fight had occurred between the claimant and Chow. All these are findings of fact and are not opened to be challenged or appealed, unless it can be demonstrated that there is no evidential basis for the findings. On the evidence before him, the Presiding Officer is entitled to come to these views.

9. Further, in arriving at these findings, the Presiding Officer evidently had accepted the evidence of the claimant and preferred it to that of the other defendant's witnesses, Kwan Chun Chuen and Chan Chun Sang wherever they are in conflict. While I accept that the Presiding Officer had not stated in his Reasons that he had considered and rejected the evidence on the alleged admissions made by the claimant, that is not fatal to his findings and cannot form a ground of appeal.

10. The history of conflicts between the claimant and Chow, the injuries of Chow and the nature of the claimant's duties become immaterial or irrelevant once the Presiding Officer found that the claimant did not aim the hammer at Chow and there was insufficient evidence pointing to a fight. At any rate, the evidence before the Presiding Officer shows that the previous conflicts between the claimant and Chow were not particularly serious and there were similar conflicts between other watchmen. There had never been any verbal or written warning in this respect. There is also no evidence before the Tribunal as to the exact injuries suffered by Chow and how they came to be inflicted. The defendant's witness, Chan Chi Ming, merely referred to Chow saying he had abrasion(s) in his hand(s). That is far from suggesting a fight had taken place. Further, had the Presiding Officer found as a fact that there was a fight between the claimant and Chow, then the fact that the claimant was employed as a watchman to maintain order might be relevant in considering whether summary dismissal was justified. But where the Presiding Officer concluded that the evidence does not support a case of fighting, the "disciplinary nature" of the claimant's employment becomes irrelevant. It also follows from the Presiding Officer's conclusion that there is no basis for him to proceed to consider the seriousness of the claimant's breach, he having found that there was no evidence of a breach.

11. The first ground of appeal is therefore unarguable.

12. Similarly, there is no room for argument based on the second ground in the light of the Presiding Officer's findings. The claimant denied throwing the hammer at Chow. The Presiding Officer accepted his evidence. That being the case, it is not necessary for him to consider whether the claimant was acting in self-defence when he threw the hammer. The criticisms levelled against the reasons given by the Presiding Officer for this finding are attacks on a finding of fact, which is outside the permissible scope. The second ground also has no prospect of succeeding.

13. The third and fifth grounds of appeal can be dealt with together. The Presiding Officer is only obliged to consider whether the claimant's conduct amounts to a repudiation and/or whether the defendant is entitled to treat his conduct as repudiation after he has found that the claimant is guilty of the misconduct complained of. This in fact is the approach pronounced by Barnett J. in So Ching t/a South Sea Co. v. Kwan Hang Ching & anor. [1987] 2 HKC 297. In that case, Barnett J. said at p.100 :

"I must first, I think, consider the proper approach to cases of this nature. I hold it to be this. A presiding officer should make findings of fact as to whether the conduct complained of took place and if so, the circumstances in which that conduct occurred. ... Having considered those matters, the presiding officer should then go on to consider whether the conduct amounted to a repudiation of the contract or flouted the essential contractual conditions."

14. In the present case, the Presiding Officer was of the opinion that the evidence does not support a finding that the claimant and Chow had a fight. It follows that the conduct complained of by the defendant had not been made out. There is therefore no need for the Presiding Officer to go on to consider whether there is in fact repudiation by the claimant and/or whether the defendant can justifiably treat the claimant's conduct as repudiation. These 2 grounds are therefore unarguable.

15. The fourth ground complains that the Presiding Officer erred in the burden of proof. The various authorities referred to by counsel in support of this argument are cases in which the employees claimed for severance payment. These cases establish that in order to succeed, the employees has firstly to prove that the employment contract had been terminated and secondly, that the dismissal was not for cause : To Kin Wah & Another v. Shui Hing Co. Ltd [1985] 1 HKC 239, So Ching t/a South Sea Co., supra. These cases are distinguishable from the present one which is not a claim for severance payment and the Tribunal was not concerned to establish whether the claimant was dismissed by reason of redundancy. The claimant's present claim is on the basis that he was wrongly dismissed and his employment wrongfully terminated. It is common ground that his employment had been terminated without appropriate notice nor payment in lieu of notice. On the face of it, the termination will amount to a breach of the contract unless there is ground for summary dismissal under s.9 of the Employment Ordinance or common law. The claimant had therefore discharged his burden of proof. In order to defend the claim for wages in lieu of notice, it is for the defendant to prove that the claimant was justifiably dismissed. This the defendant had sought to do by saying that the claimant had been fighting with Chow, hence offended clause 8(a) of the employment contract. Once the Presiding Officer found that the allegation of fighting had not been made out on the evidence, there was no room to invoke clause 8(a) of the employment contract. The Presiding Officer is then quite entitled to conclude that there is no justification for summary dismissal such that the defendant had breached the employment contract by determining it without notice or payment in lieu.

16. It has also to be observed that these cases are not conclusive on the question of burden of proof. Barnett J. in a later decision in Wyldbore v. Bayubay [1987] 2 HKC 304, at p.305E-F accepted that this approach which he had adopted in the So Ching t/a South Sea Co. case is not beyond argument. In a more recent case of Wan Hung Shu t/a Paris Wan's Co. v. Li Chun Yam [1993] 2 HKC 714, Rhind J. expressly declined to follow this approach as to the burden of proof.

17. Moreover, even if adopting this approach and placing the burden of proof on the claimant, the conclusion would still be the same once the Presiding Officer found that the evidence does not support the allegation of the claimant fighting with Chow. On the evidence before the Tribunal, the claimant had only uttered one sentence, which is by no means insulting or provocative in nature. The fact that the claimant and Chow had a history of conflict cannot have justified summary dismissal, there being no previous warning given by the defendant. Neither can the fact that the claimant had made a report to the police justifies summary dismissal. It may be undesirable from an employer's point of view that police and ambulance were summonsed to his premises. But an employee cannot be justifiably dismissed for calling the police when it is not disputed that he had been physically assaulted by his colleague.

18. This fourth ground is also unarguable.

19. The final ground directs at the award of additional 7 days' wages on the basis that the employment was terminated while on sick leave. It is the claimant's evidence that when he returned from the hospital, he had handed the sick leave certificate to Kwan Chiu Chuen, but the latter refused to accept it, saying that it would not be accepted for the time being. Kwan Chiu Chuen had also testified that the claimant, upon his return from the hospital, had with him packet(s) of pills and what appeared to be a sick leave certificate. There is thus evidence that the claimant was granted sick leave on 23 June 1999 and the defendant, through Kwan Chiu Chuen, knew or ought to have known it. Despite that, the claimant was dismissed. In the circumstances, it is open to the Presiding Officer to conclude that the claimant was wrongfully dismissed while on sick leave and to award additional wages accordingly. There is no room for argument under this final ground.

20. For the above reasons, this application for leave to appeal must be dismissed and I so order.