LEE SZE YIU v. THE GARDEN CO. LTD.

HCLA22/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.22 OF 2000

(On appeal from Labour Tribunal Claim No.LBTC10594 of 1999)

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J U D G M E N T

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1. The claimant, Mr Lee was a bread-making technician employed by the defendant, a big bread making business in Hong Kong. The plant of the defendant company is basically operating round the clock with at least three shifts, and workers in different shifts would be paid different shift allowance.

2. Mr Lee worked in the middle shift for the defendant from 1200 hours to 2000 hours in the variety bread production line. He was summarily dismissed by the defendant on 8 October 1999 on the alleged ground that he failed to obey a "lawful and reasonable" order of transfer from the middle shift to the night shift (0000 mid-night to 0800 hours).

3. In or about September 1999, Mr Mok of the defendant company informed Mr Lee that he was chosen by the defendant to change his shift from the middle shift (1200 hours to 2000 hours) to the night shift (2200 hours to 0600 hours). This is the first order. However, Mr Lee suffered from a medical condition which made it inadvisable for him to work at night. In the court below, Mr Chiu of the defendant company confirmed to the presiding officer that the defendant accepted Mr Lee's health reason and agreed not to transfer him to the late night shift.

4. However, on 7 October 1999, Mr Chiu interviewed Mr Lee again and requested to transfer him to another middle shift with the same working hours from 1200 hours to 2000 hours, but working in the hamburger production line. This is the second order. Mr Lee refused because the making of hamburger buns did not require much making skills. His bread-making skill would be lost over time and therefore Mr Lee insisted to work in the same shift with the same nature of work, i.e. making variety bread.

5. On the next day, 8 October 1999, Mr Chiu requested the claimant to work in the morning shift in the variety bread production line from 0730 hours to 1630 hours, this is the third order. Mr Lee refused because the shift allowance would be reduced by $930. Even if Mr Lee could have saved $520 per month in respect of transportation expenses, he would still earn $410 less.

6. The defendant then offered Mr Lee to work in another shift from 1830 hours to 0230 hours in the variety bread production line with the same shift allowance. This is the fourth order. For the same medical reason the claimant rejected the first order, he rejected this fourth order.

7. After Mr Lee had rejected this fourth order, the defendant dismissed the claimant forthwith on the ground as aforesaid that Mr Lee refused to obey a "lawful and reasonable" order.

8. As Mr Chiu had accepted Mr Lee's health reason and agreed not to transfer him to the late night shift, this would make the first and fourth orders non-effective or, to put it in another way, the defendant could not dismiss Mr Lee on disobedience of the first and the fourth orders.

9. In respect of the second and the third orders, I accept the submission of Mr Paul Harris for Mr Lee that the true position is that these were orders which, had they been given for a genuine operational reason, might have been reasonable, although in the context the demotion of a skilled man to unskilled work, it is arguably unreasonable. However, in the present case, these orders were not given for operational reasons but to penalize the claimant for refusing to work on the night shift. They were therefore in reality unreasonable in the actual context of this case.

10. The claimant's refusal to work night shift was not wilful in that he really had no choice in the matter if he was to safeguard his health. His refusal to transfer, in these circumstances, if amount to wilful disobedience to a "lawful and reasonable" order would mean that employees could be forced to undertake the work which was highly damaging to their health or face dismissal. In my view, as submitted by Mr Harris, the tribunal was therefore right to find that there was no such wilful disobedience in relation to the first and the fourth orders.

11. Mr Lee was actually dismissed after his refusal to obey the fourth order. When the defendant company accepted Mr Lee's health reason and agreed not to transfer him to the late night shift, it would mean that the fourth order was not a reasonable one.

12. The net effect of the defendant's actions was therefore to penalize a good worker whose health problem did not permit him to work night shift by insisting that transfer, either to work night or to less skilled work or to less well paid work or lose his job. This was being done not for operational reasons but to encourage other workers to obey future requests for a shift change. The defendant's action in insisting on a transfer of this reason was not rational as other workers would not usually have a medical reason for refusing a transfer and would not therefore be in a same position as Mr Lee. It was also harsh and unfair towards Mr Lee who had originally been chosen for a night shift because he was a good worker and was however being penalized for turning it down for entirely justifiable reasons. Thus, the overall course of conduct of the defendant was not reasonable. Orders which were in principle or on the face reasonable were not reasonable in the particular contents in which they were given in this case.

13. In the end, I find that the tribunal was correct to find that there was no justification for dismissing Mr Lee on the basis of section 9 of the Employees Ordinance. There was no error of law on which the defendant could appeal. This appeal is therefore dismissed with costs to the respondent.