CHOY KAM CHING AND OTHERS v. LUCKY PVC MANUFACTURERS LTD

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 96/86

(CLAIM NO. 3079/86)

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J U D G M E N T

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1. The Presiding Officer of the Labour Tribunal, Mr. Paul Stoppa, awarded severance pay and wages in lieu of notice to the Respondents. He did so under Section 31E of Can. 57. Section 31E reads as follows:

"31E (1) Where an employee is employed under a contract on such terms and conditions that his remuneration thereunder depends on his being provided by the employer with work of the kind he is employed to do, he shall for the purposes of section 31B(1) be taken to be laid off where the employer does not provide such work for him on at least a total of 12 normal working days in any period of 4 consecutive weeks and whereby he is not entitled to any remuneration under the contract for such period:

    Provided that any period during which an employee is not provided with work because of a lock-out by his employer, or as a result of a rest day or holiday, shall not be taken into account in determining whether an employee has been laid off,

    (2) The continuity of a contract of employment of an employee shall not be treated as broken by any lay-off as a result of which no severance payment has been made.

    (3) For the purposes of this Part the 'relevant date' in respect of the right of an employee to a severance payment arising by reason of lay-off means any day on which the period of 4 consecutive weeks referred to in subsection (1) has expired."

2. The Appellant's grounds of appeal are contained under 4 separate heads. The 1st and 2nd grounds can be conventiently dealt with together. They are to the effect that the Presiding Officer failed to take cognizances of the fact that the burden of proving that there had been a lay-off rested upon them. Miss Vibert went on to submit that not only did the Presiding Officer get this wrong but also the evidence which was before the Tribunal could not support his findings that there had been a lay-off in terms of Section 31E such as to give rise to a claim for severance payments.

3. I have no doubt that Miss Vibert is correct in stating that the burden of proof lies on the Respondents. However, in my view, there is nothing in the Presiding Officer's judgment which suggests that Mr. Stoppa was not of this opinion himself. What is necessary is to have regard to the evidence which was before the Tribunal. It can be seen that there was abundant evidence to support the conclusion that there had been a lay-off.

4. The appellant's witness no. 4 gave evidence at pages 32 and 33 of the appeal bundle of the situation of work. On this evidence there was barely sufficient work after the end.of March to supply the workers who were piece-work employees with 12 days' work within a four-week period. There was also evidence, which is not contested, that the Appellant told the Respondents to go home and rest and then if there was work they would be told and they could then return to work.

5. It would appear to be common ground that although the Appellants attempted to contact the Respondents by telephone to advise them that there was more work, contact was not in fact established. It can be seen in Section 31E subsection 2 that the contract of employment still continues to run in such a situation and it is simply not good enough for an employer to say that he will attempt to contact an employee and advise him that there is work an employer has an obligation to provide work while a contract of employment subsists and if difficulty is encountered in communicating with the employees, the employer must abide the consequences.

6. I think that Mr. Stoppa was quite right in these circumstances to treat the work records which were before him as representing the amount of work which had been done by the Respondents. also his finding of fact that there had been a lay-off cannot be faulted.

7. The 3rd ground of appeal relates to the inadequacy of Mr. Stoppa's finding as to when the four-week period ran. I do not consider it to be necessary for him to spell out in his judgment what the period was which was being relied upon. At pages 8 and 11 of the appeal bundle, he did refer to the periods when the Respondents left their work. when this is taken in conjunction with Section 31E subsection 3, I am satisfied that the appellants would have had sufficient notice of the period involved.

    The 4th ground relates to the claim for wages in lieu of notice. Miss Vibert claims that it was never proved that the employment was terminated. I concur with the view of Mr. Justice Hooper in Labour Appeal Tribunal No. 49 of 86 that where a lay-off has been established under Section 31E there is a constructive dismissal of employees. I can see no reason why a claim for wages in lieu of notice should not be based on this. For the reasons I have given, I would dismiss this appeal. I will hear the parties on the costs.