S. SPACE DESIGN (HK) CO. LTD v. WONG WAI WING

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO.135 OF 1996

(On Appeal from Labour Tribunal Claim No.1832 of 1996)

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R E A S O N S

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1. This appeal by S. Space Design (HK) Co. Ltd. ("the Company") came before me on 10 February 1997. After hearing counsel for both parties, I dismissed the appeal with costs. The reasons appear below.

2. The Claimant was employed by the Company as an accounting clerk on 16 June 1995. She was summarily dismissed on 8 May 1996.

3. The dismissal letter dated 8 May 1996 was in the following terms :

"Re : Summary Dismissal

Please be informed that the management had received several complaint from your direct superior and your general manager according to your poor attitude and unsatisfactory performance during the pass few months. Verbal warning and written warning had been given to you but improvement is negative.

Beside, on dated May 6, 1996 your direct superior and general manager had report to the top management that you had created a security passwords on the computer regarding to the company's financial data report without previous approval by any of your superior and, you had refused to provide the said security passwords to your manager and cause the company's got into a data lost situation. Also, a number of four company's accounts computer floppy disk data had been erased by you accordingly.

According to the above serious misconduct behavior, you are subject to summary dismissal without any compensation.

Thank you for your attention. ..."

So it was on the basis of serious misconduct that the Claimant was summarily dismissed. At the hearing before the Presiding Officer, the Company acknowledged that neither the matters raised in the first paragraph nor the erasure of the 4 disks were reasons for the dismissal.

4. It is relevant to mention that on 29 April 1996, the Claimant was shown a warning letter (exhibit D2), which alleged that on 15, 16 and 17 of April, she had neglected her duties without the manager's approval and also had stayed in the changing room to do personal knitting which had been discovered by the management. The "misconduct" noted consisted of the following : "leaving work without permission, inco-operative (sic) and violation of company rules and regulations". On 8 May 1996, an hour or so before her dismissal interview, the Claimant was shown a letter dated 3 May 1996 (exhibit D4) setting out alleged "misconduct". This letter was signed by 5 of her superiors and colleagues :

"Herewith some misconduct of Employee : MS. WONG WAI WING in S.S.D. Department.

(1) Habitual neglect of duties.

(2) Always leaving work without permission and report.

(3) Inco-operative with other staffs & managers.

(4) Impolite attitude.

(5) Carelessness of works, especially reporting.

(6) During office hour reading new paper & chatting by phone discontinue for few hours.

(7) Disappointing assigned working which was affected company business directly.

(8) Due to poor report or unreport cause trouble to other staffs.

(9) Unresponsible to answer suppliers enquire cause company image.

(10) Not consider the requirements of company business type to soft 'Pass Through System'.

(11) Individual persistent working system can not reach the working target.

(12) Unreasonable request managers & staffs to work for her related job.

(13) Violation of company rules and regulation.

(14) Unreporting to company managers & keep importing report in her own filing system without permission of company.

(15) Non-thinking to acceptable report method & keep Urgently Documents.

(16) Seating at Manager seat without permission to do something not related to her duties."

This list had been compiled by her superior Mr Ho on his own initiative. The Claimant denied all the allegations contained in exhibits D2 and D4 and in the letter of dismissal.

5. The appeal is based on a very narrow ground : part of the misconduct about which the Company based its case is that during the dismissal interview, when asked by Mr David Wong the manager of the Personnel Department to reveal passwords that she had set for her computer disks, the Claimant had refused to do so. The Claimant was told that if she persisted in not revealing the passwords, there would be no alternative but to dismiss her. The Presiding Officer disbelieved Mr Wong's evidence that the Claimant had refused to reveal the passwords to him during that interview at which no third person was present. The Company's submission was that the Presiding Officer was not entitled to make a finding that Mr Wong's evidence was untrue because it is the Claimant's evidence that when Mr Wong asked her to reveal the passwords to the disks, she said that she had forgotten them. It was submitted that such a statement was blatantly untrue because the Claimant has admitted setting the password which was her own name. Clearly, she could not have forgotten the password and by making such a statement, there was no way in which the Claimant's evidence could or should be accepted as true. If Mr Wong's evidence were accepted, it was submitted that the Claimant had failed to obey a lawful and reasonable order to warrant summary dismissal.

What was the Claimant's evidence?

6. The following is an extract from the Notes of Proceedings taken during the Claimant's cross-examination of Mr Wong :

"Court : Any written record for the verbal warning?

A. : No written record. Prior to her dismissal, I verbally warned her that if she refused to give me the passwords. She would be subject to summary dismissal.

Q. : I didn't tell you I forgot the passwords?

A. : I disagree.

...

Q. : D3 was just an excuse to dismiss me?

A. : Disagree."

7. Counsel for the Company submitted that because there was no prior assertion by Mr Wong putting the Claimant's case to her that she had forgotten the password and therefore no context for a statement or denial by the Claimant that she did not tell Mr Wong that she had forgotten the password. The question "I didn't tell you I forgot the passwords?" should be read as if the Claimant had asked "Didn't I tell you I had forgotten the passwords?". In these circumstances, the court is asked to infer that it was part of the Claimant's evidence that she had told Mr Wong at the dismissal meeting that she could not remember the passwords. If that were so, it was submitted that it would destroy the Claimant's credibility altogether.

8. Whilst I see the force of the Company's submission, I do not find such an inference to be irresistible for a number of reasons. First it is to be noted that it was never part of the Company's case that the Claimant had said that she had forgotten the passwords. The Claimant was never cross-examined about that. It would have been most natural for Mr Wong to have given evidence about this "excuse" proffered by the Claimant during the dismissal interview had it actually occurred. But Mr Wong went no further than to say that the Claimant refused to reveal the passwords. Second, the Notes of Proceedings are not by any means a verbatim record : they are notes taken by the learned Presiding Officer in English from proceedings conducted in Cantonese. Of their very nature, those Notes are not a full and complete record of the proceedings.

9. Counsel for the Company accepted that if the court did not accept his primary submission that that question formed part of the Claimant's evidence, he could not discharge the very high standard required for an appellate court to reverse the Presiding Officer's finding of fact which depended upon the credibility of the witnesses only.

10. I would add that even assuming for present purposes that the Claimant's question was part of her evidence, it would not follow that the Presiding Officer's decision should be reversed. The statement (assuming it had been made at the dismissal interview) must be seen in context. I cannot exclude the possibility that it could have been made by the Claimant in a fit of pique having regard to the way in which she had been treated during the two weeks prior to her dismissal : it started with the Claimant's superior Mr Ho suggesting to the Claimant on 26 April that she should resign. The warning letter, exhibit D2, concerning the knitting incident was issued to the Claimant three days later. This was apparently one of the two reasons, though a minor one, for the Claimant's dismissal according to Mr Wong (p.21 of the Notes of Proceedings). Then an hour or so before the dismissal interview, she was confronted by Mr Wong and four of her colleagues with the list of 16 items of misconduct that appears in exhibit D4, many of which are hardly intelligible. On any view, such a confrontation was plainly not normal procedure. The Claimant denied all these allegations and then the dismissal interview took place. Given this sequence of events, and the pressure seemingly exerted on the Claimant, if indeed she did reply in the manner suggested, that answer would not render her an untruthful witness.

11. It is also to be noted that when the case came before the Presiding Officer, the five complaints of misconduct did not include this refusal to reveal passwords (see pp.5 - 6 of the Notes of Proceedings). The "major" complaint was the failure of the Claimant to provide the Company's financial report for the year ended February 1996. As Counsel for the Company had to acknowledge, this "major" complaint simply "fizzled out" because the Claimant had in fact submitted the report to the head office as instructed. On the evidence, the Company had virtually nothing on which to base its allegations of misconduct.

12. In any event, the refusal of the Claimant (assuming this to have been the case) to reveal the passwords was not conduct that would have justified summary dismissal : according to Mr Wong, she was prepared to print out whatever information was in the disks. In these circumstances, it is not a case where the Claimant had so misconducted herself and derogated from her duties and obligations as an employee to warrant summary dismissal.