LAM TZE YING AND OTHERS v. MARIA COLLEGE

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 136 OF 1996

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J U D G M E N T

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1. The Appellant, Maria College, was ordered to pay long service pay to the three Respondents, namely $191,651.10 to the 1st Respondent Lam Tsz Ying, $178,750.00 to the 2nd Respondent Leung Kin Hing and $44,375.00 to the 3rd Respondent Wong Chi Ho.

2. There was very little dispute about the facts of the case. The three Respondents were all teachers working at the Appellant school. The 1st Respondent commenced working on 1st September 1982, the 2nd Respondent commenced on 1st September 1984 and the 3rd Respondent commenced on 1st September 1990.

3. The three Respondents were all dismissed on 27th June 1996 with one month's notice of termination to take effect on 1st August 1996. They worked until 31st July 1996.

4. The Appellant refused to pay long service pay to the Respondents on two grounds:

(1) The Respondents were dismissed under Section 9 of the Employment Ordinance; and

(2) The contracts in question were not continuous contracts.

5. The Presiding Officer in the Labour Tribunal found against the Appellant on both issues and awarded the long service pay as claimed by the Respondents.

6. Leave was granted to the Appellant to argue only on the first ground, namely whether there was justified summary dismissal of the Respondents by the Appellant under Section 9 of the Employment Ordinance.

7. At the commencement of the appeal, the Appellant asked for and was granted leave to abandon the appeal in respect of the award made in favour of the 2nd Respondent, Leung Kin Hing, and such appeal was therefore dismissed.

8. The allegation by the Appellant to justify a summary dismissal under Section 9 of the Employment Ordinance was somewhat unusual.

9. The allegation against the 1st Respondent was as follows:-

"In early October 1995, a survey was conducted with students in the school. It was found that quite a number of students under Ms. Lam Tze Ying felt resentful towards Ms. Lam's bad manner. Headmaster Lau Hin Wai had a meeting with Lam Sze Ying, telling her to keep serious, sincere, firm but not cruel when teaching students. At that time, Lam Tze Ying agreed to the work in line with the intention of the school. When there came the ending of the academic year, the school authority conducted another survey. This time the students were more resentful. Besides, Lam Tze Ying scored the lowest mark among all teachers (Kowloon City and North Point School) in the survey. This proves that Lam Tze Ying didn't comply with the reasonable work instructions of the school throughout the whole academic year and had grievously breached the teaching principles. Therefore the school authority didn't give her the long service pay."

10. The allegation against the 3rd Respondent was as follows:-

"On the 20 of October 1995, Claimant Wong Chi Ho had conflict with a student in F. 1A named Chan Wai Ho. Wong Chi Ho yanked the student's clothes by the part near the chest and dragged Chan Wai Ho to the corridor from the classroom. His rough manner in treating students was seriously against the school instructions. On 17 of November 1995, Wong Chi Ho made complaint to the school office through the mobile phone during lesson, saying that a student in F. 1A named Choy Ching Bill had spoken foul language. The named student also made a complaint to the school office against Wong Chi Ho's bawling him out in the first place. Wong Chi Ho insisted that the student should be dismissed. The officer in the school office said that the way Wong Chi Ho handled the matter was incorrect but Wong Chi Ho did not follow the instructions. The said student had his lessons suspended for 2 weeks subsequently. This proves that Wong Chi Ho had repeatedly breached the instructions that the way to handle problem students should be a peaceful one and that is why the school authority decided not to give the claimant the long service pay."

11. Teachers are supposed to provide guidance to students and if necessary to discipline those who have not been behaving. Stronger measures may be required in dealing with students who are difficult and unreasonable.

12. In the course of providing such guidance and discipline, there are bound to be conflicts between the teachers and the students. There may be resentment by the students against the teachers, justifiably or otherwise. I just cannot see how opinions of students about the teachers in a survey, how unsatisfactory such opinion may be, can justify the school in summarily dismissing a teacher under Section 9 of the Employment Ordinance.

13. Teachers are professional people. They are entailed to be given discretion to decide what is the best way in dealing with students or a particular student. Unless in extreme cases, failure to follow certain instructions in dealing with students is not a wilful disobedience of a lawful and reasonable order to justify a summary dismissal under Section 9 of the Employment Ordinance either.

14. In fact, it was clear even from the information supplied by the Appellant, some of the students that the Respondent had to deal with were clearly far from satisfactory. It was clear that teachers must exercise the most stern and firm attitude towards them in the proper discharge of their duties.

15. I have considered the background of the case. I have read carefully the allegations of the Appellant against the Respondents as set out in the defence and the skeleton argument presented on behalf of the Appellant in support of the appeal.

16. I am firmly of the view that the alleged conduct of the Respondents did not justify a summary dismissal at all. They could have dealt with the students in perhaps a more appropriate manner with hind-sight. On the other hand, what they did was reasonable and understandable in the circumstances and could never justified them to be summarily dismissed.

17. In determining the issue relating to the mode of dismissal, the learned Presiding Officer said the following in her Reasons For Decision:-

"I have assumed that the allegations of misconduct against the Claimants were true. Both section 9 of the Employment Ordinance and the contracts gave the Defendant a right to summarily dismiss the Claimants. However despite knowing the Claimants' alleged misconduct prior to expiry of the contracts, the Defendant had never exercised their right of dismissal. The contracts were left to expire by effluxion of time. The Defendant could not now choose to dismiss the Claimants on the grounds of the alleged misconduct."

18. It was suggested that the learned Presiding Officer had failed to take into consideration the trade customs and practice of the teaching profession that unsatisfactory performance will usually be tolerated until the end of the academic year, unless otherwise such tolerance would likely lead to crisis situation; such as serious confrontation between the teacher and many of his/her students, or serious incompetence of the teacher.

19. The learned Presiding Officer could perhaps have made inquiries into such trade customs and practice as well as the circumstances in which the alleged misconduct was said to have occurred.

20. If the Appellant had an arguable case that the Respondents had been properly dismissed for wilful disobedience or misconduct, I would have remitted the case back to the Labour Tribunal for further consideration by the learned Presiding Officer on the alleged trade customs and practice.

21. I have decided against such course because I am firmly of the view that the matters as advanced by the Appellant could not have justify the summary dismissal of the Respondents at all.

22. In the circumstances, the appeal is dismissed.