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IN THE SUPREME COURT OF HONG KONG
LABOUR TRIBUNAL APPEAL NO. 170 OF 1995
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| BETWEEN |
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CHENG CHEN SING |
Appellant |
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and |
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ARNBERGER, KIM, BUXBAUM & CHOY |
Respondent |
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Coram: The Hon. Mr. Justice Yeung in Court
Dates of Hearing: 15th February 1996 and 1st March 1996
Date of Judgment: 1st March 1996
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JUDGMENT
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1. The Appellant Mr. Cheng Chen Sing, Robert was employed by the Respondent, Messrs. Arnberger, Kim, Buxbaum & Choy, an American law firm as an accounting manager. He commenced his employment on the 31st of October 1994 and his last day of work was the 30th of January 1995.
2. It was not disputed that there was a written contract of employment. The relevant clauses are set out as follows:-
C. WORK HOURS, HOLIDAYS VACATION
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Your working hours will be from 9:00 a.m. to 6:30 p.m. five and one half working days per week. However, if you do not work on Saturday, you shall make up that time with other time. You will be required from time to time to work additional hours. If they should become excessive, this shall entitle you to compensatory time off. No overtime will be paid. |
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You are entitled to 10 days annual paid leave on completion of one year's service; there will be no leave granted or equivalent compensation if you do not complete one year's service. |
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G. COMPENSATION
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Your work will begin with a probationary period of up to ninety working days commencing on or about 31 October 1994 during which time either party may terminate this agreement upon fourteen days notice. Upon satisfactory completion of this probationary period, your salary will be increased. After that time either party may termi(na)te this agreement upon eight weeks notice. |
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Your starting salary will be HK$15,000.00 per month. At the end of the probationary period you will be given an increase of salary to HK$16,000.00. |
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3. On the 30th of January 1995, the Appellant was served with a notice of termination in the form of a letter dated also the 30th of January 1995 to the following effect:-
"We hereby terminate the contract we signed on 28 October 1994. Pursuant to the contract, we give two weeks notice for this termination which are going into effect from today."
4. The Appellant did not work out the notice period and in fact failed to return to work on the 31st of January 1995.
5. The Appellant commenced proceeding in the Labour Tribunal on the 11th of July 1995, claiming against the Respondent the following items:-
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Two months wages in lieu of notice; |
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Arrears of wages for one day on 31st of October 1994 and for the month of January 1995. The Appellant contended that he should be entitled to the increased salary of HK$16,000.00 a month in stead of HK$15,000.00 as the probation period had already expired. |
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Pro-rata annual leave pay; and |
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Overtime pay. |
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6. The appellant contended that the 90 working days referred to the employment agreement should be 90 calendar days and therefore the probation period had already expired when the notice of termination was given on the 30th of January 1995. He should be entitled to 2 months notice of termination and not just 14 days.
7. The claim for the arrears of wages for the month of January 1995 was made on the basis that he should be entitled to the increased salary of HK$16,000.00 and not HK$15,000.00 as the probation period had expired.
8. The pro-rata annual leave pay and the overtime pay were also made on the basis of a monthly wage of HK$16,000.00.
9. The Respondent counterclaim against the Appellant for 14 days wages in lieu of notice as the Appellant had not served out any of the 14 days notice period.
10. When the matter went before the Labour Tribunal on the 7th of August 1995, the Appellant raised for the first time the suggestion that he refused to return to work on the 31st of January 1995 as he thought he would be asked to do some false accounts.
11. He said he had found certain irregularities with the accounts of the Respondent in that the Respondent was trying to avoid tax. He said he had not done any false account during his employment but he thought he would be asked to do it in the last two weeks of his employment after the notice of termination had been served on him. That was why he refused to work on the 31st of January 1995.
12. The learned Presiding Officer ignored the allegation of the Appellant that he would be asked to do false accounts if he returned to work on the 31st of January 1995.
13. The learned Presiding Officer concluded that the probation period had not expired and hence the notice of termination was only 14 days. The Appellant was also awarded arrears of wages and pro-rata annual leave pay on the basis of a monthly wage of HK$15,000.00
14. The claim for overtime pay was dismissed.
15. As the Appellant had not served out the notice period, the Respondent was awarded the claim for 14 days wages in lieu of notice against the Appellant.
16. The Appellant suggested that as the contract of employment in question was a continuous contract, Sundays were still working days even though he did not work on Sundays. He further suggested that he would be doing works on Mondays, work left over from Sundays, therefore Sundays should be considered as working days.
17. The Appellant's argument was ingenuous, but cannot be right. "Working days" is a simple English term and it means days on which work was performed. It was not disputed that he did not work on Sundays and Sundays could not be regarded by any stretch of imagination as working days. If "working days" were to mean "calendar days", there was no reason at all for the parties to deliberately agree on "working days" and not just "calendar days" or simply "days".
18. As Hamilton J. said in British and Mexican Shipping Co. Ltd. v. Lachelt Brothers & Co. Ltd. [1911] K.B. 265 at p. 273
"If then the matter be simply the construction of the words "per working day," I think the meaning of the words ...... all point to reading them as distinguished from a day for rest or for prayer or for pleasure."
19. The learned Presiding Officer was clearly correct in ignoring Sundays in his computation of the number of working days to decide if the probation period had expired at the time when the notice of termination was served when the Appellant did not work on Sundays at all. The Appellant could not have any valid complaint on this aspect.
20. The 90 working days probation period had not expired on the 30th of January 1995 and the period of notice of termination was 14 days and the Appellant's wages remained HK$15,000.00 at that time.
21. The Appellant said he did not return to work on the 31st of January 1995 after he received the letter of termination on the 30th of January 1995 for fear that he might be asked to carry out illegal work in connection with the preparation of false accounts.
22. Such allegation was highly suspicious to start with. He did not make any such allegation until after he was served with the notice of termination. In any event, such matters was not a valid excuse for his failing to return to work on the 31st of January 1995. He was certainly entitled not to carry out any illegal work if he was asked to. But he was not entitled to refuse to return to the office for fear that he might be asked to take part in illegal work.
23. If he had any evidence of anyone having committed any criminal offence, as a good citizen, perhaps he should report the matter to the police. He did not do it but chose to stop working after he had been served with the notice of termination.
24. In my view, on the facts and background of the case, the learned Presiding Officer was entitled to ignore the Appellant's complaint that he might be forced to do some unlawful act if he returned to work on the 31st of January 1995. Such matters were not relevant on the issues before him.
25. The Appellant had been served with 14 days of notice of termination. He should have served out the 14 days period. There was no justification whatsoever for his failure to return to work on the 31st of January 1995.
26. The learned Presiding Officer was right in finding in favour of the Respondent in respect of its counterclaim.
27. The only concern I had with regard to the Appellant's case was the overtime pay. It was true that the written agreement expressly provided that no payment would be made in respect of overtime work. But it did provided that the employee would be entitled to compensatory time off.
28. The Respondent at the hearing before the Labour Tribunal did not dispute that the Appellant had in fact performed the overtime work of about 1,300 minutes, i.e. about 3 days. The suggestion was that he had not been asked to do such overtime work. I do not consider that to be a valid excuse. The Appellant was an accounting manager and he should be allowed to decide if he needed to do overtime work.
29. As the Appellant had been dismissed, there was no question of him being awarded any compensatory time off.
30. I am of the view that a fairer approach would be to allow the overtime to be set off against the period of notice of 14 days as compensatory time off. He should be treated as if he had worked on 3 of the 14 days of notice of termination.
31. In the circumstance, the award in the counterclaim by the Respondent against the Appellant will be reduced by 3 days' wages in lieu of notice, namely $1,500.00
32. I would therefore allow the appeal by reducing the award to the Respondent in its counterclaim against the Appellant from $7,500.00 to $6,000.00
33. The net result will be that the Appellant had to pay the Respondent the sum of HK$4,255.83 instead of HK$5,755.83 and the order of the learned Presiding Officer will be altered accordingly.
34. As both parties were unrepresented, I make no order as to costs.
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(W. YEUNG) |
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Judge of the High Court |
Representation:
Mr. Cheng Chen Sing, Robert appeared in person.
Messrs: Arnberger, Kim, Buxbaum & Choy in person, represented by Ms. Ng Loi Ping
Appeal by the appellant to Court of Final Appeal. Appeal dismissed. Please refer to the appeal judgment of FAMV5/1998 |