XCHRX YU KAM SANG v. YUEN CHAK CONSTRUCTION CO. LTD.

HCLA 90/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 90 OF 2000

(ON APPEAL FROM LBTC 10970/1999)

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REASONS FOR DECISION

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1. This is an application by the Defendant employer for leave to appeal under section 32 of the Labour Tribunal Ordinance, Cap. 25 from a decision made by a Presiding Officer, Mr Winston Leung, on 21 November 2000. The Presiding Officer has found in favour of the Claimant, Mr Yu Kam Sang, that his employment was wrongfully terminated by the Defendant in that he was dismissed by the Defendant on 3 November 1999. He awarded the Claimant the total sum of HK$215,318.00 being wages in lieu of notice for 26 days, annual leave pay, statutory holiday pay and long service pay. The claim for severance pay was dismissed.

2. There were two main issues before the Labour Tribunal. The first was whether the Claimant was dismissed by the Defendant. It was the Defendant's case before the Tribunal that the Claimant had resigned instead. The second issue was whether the Claimant's service with the Defendant from 2 April 1984 to 3 November 1999, a period of over 15 years, was continuous or whether it was broken many times as alleged by the Defendant. The Presiding Officer found in favour of the Claimant on both issues.

3. The Defendant seeks leave to appeal only on the first issue. Three grounds were put forward to argue that the Presiding Officer had erred in law in finding that the Claimant was dismissed by the Defendant. Firstly, it was submitted that there was no evidence upon which the Presiding Officer could have found that the Defendant had dismissed the Claimant. Secondly, it was argued that the finding of dismissal was inconsistent with the other findings of fact. Thirdly, it was submitted that the Presiding Officer had failed to consider other evidence.

The first ground

4. The Claimant was employed as a "casual" construction worker by the Defendant for over 15 years. It was not in dispute that the relationship between the Claimant and the Defendant had been a congenial one. What had led to the termination of his employment was an incident that happened on the first few days of November 1999. According to the evidence of the Claimant, which was accepted by the Presiding Officer, in early November, Mr Ho Yuen Chak, who is the major shareholder of the Defendant and in his 70s, asked the Claimant to stop work for one day on 2 November 1999 because the Defendant had no work for the Claimant that day. The Claimant was not happy about this because he was paid on a daily basis and he would not receive wages if he did not go back to work on a particular day. Mr Ho did not ask the Claimant to go to work on 3 November 1999. In the evening of 3 November 1999, the Claimant telephoned Mr Ho and said to the latter, apparently in a fit of pique, that if there was no more work for him to do, Mr Ho should square the account with him and pay what was due to him. The Claimant added that he needed to support his family. Mr Ho replied to the effect that if that was what the Claimant wanted, he should come up to the Defendant's office the next day to collect payment. The Claimant went to the Defendant's office as told on 4 November 1999. He was paid his wages up to 3 November. When he asked Mr Ho why he was not paid other benefits having worked for the Defendant for so many years, Mr Ho said to the Claimant that he had resigned of his own accord, whereupon the Claimant denied that he had done so. This led to the claim brought by the Claimant in the Labour Tribunal.

5. On the basis of the above, the Presiding Officer found that the Claimant had meant that Mr Ho was dismissing him from his employment when he stated to Mr Ho on 3 November 1999 that if the Defendant had no more work for him Mr Ho should square the account with him. The Presiding Officer further found that Mr Ho had understood the Claimant's meaning and that Mr Ho did not disabuse the Claimant of this and chose to treat the Claimant's words as indicating an intention to resign from the job.

6. The Presiding Officer found that the Claimant had not resigned or had ever indicated to Mr Ho any intention of resigning. As I understand from Mr Cheng Tsz Ying, who appeared for the Defendant in this application, he was not contending that the Presiding Officer had erred in his finding that the Claimant had not resigned. Mr Cheng has merely sought to argue that there was no or no sufficient evidence upon which the Presiding Officer could have found that the Claimant was dismissed by the words of Mr Ho on 3 November 1999.

7. I an unable to accept this submission. Making primary findings of fact is a matter for the Presiding Officer, who has the advantage of seeing and hearing the witnesses. In this particular instance, the manner, the tone and the circumstances in which the exchanges between Mr Ho and the Claimant had taken place are clearly important. It is insufficient if Mr Cheng could only show that another Presiding Officer might have come to a different view on the primary findings of fact. Under such circumstances, I am unable to see how an appellate court could be justified in interfering with the inference drawn by the Presiding Officer from his findings of primary fact of the exchanges made between the Claimant and Mr Ho that the Claimant was dismissed by the Defendant. I do not think the Defendant has shown reasonable prospects of success on the first ground.

The second ground

8. The Defendant has argued that the finding of a dismissal was inconsistent with other findings of the Presiding Officer being that the relationship between the Claimant and the Defendant had been good and the Claimant had by his words requested the Defendant to calculate the amount payable to him if there was no more work for him. I am unable to see any argument of substance here.

The third ground

9. Lastly, it was argued that the Presiding Officer had failed to consider relevant evidence as follows. Firstly, the Claimant was paid on a daily basis. Secondly, he was paid his wages twice a month on the 5th and 20th day. Thirdly, when the Claimant wanted to work, he would ask Mr Ho of his own initiative whether or not there was work for him to do. As I understand Mr Cheng's arguments, he was saying that the Claimant should have waited until his pay day to collect his wages. The Claimant did not do so and he chose to request the Defendant to calculate his wages and pay him what he had earned. This request was agreed to by Mr Ho. Thus, it was submitted that the Defendant had not terminated the Claimant's employment by any word or deed of Mr Ho.

10. As I have stated earlier, the Presiding Officer had made findings of primary fact as to the verbal exchanges between the Claimant and Mr Ho on 3 November 1999. In my view, the Presiding Officer was justified in drawing the inference that the Claimant had understood Mr Ho to be dismissing him from the Defendant's employment and that Mr Ho did not disabuse the Claimant of that thinking. I am unable to see how the Presiding Officer could be criticized for not taking the words of the Claimant at face value and for not finding that the Claimant had merely requested the Defendant to calculate and pay him wages ahead of the pay day.

11. As for the contention that the Presiding Officer had failed to have regard to the evidence that when the Claimant wanted to work, he would of his own accord ask Mr Ho whether work was available, the evidence before the court was simply that the Claimant had inquired with the Defendant whether work was available on an occasion in early November 1999. There was no evidence that it was a general practice with the Claimant that he would enquire with the Defendant from day to day whether work was available. I do not think this argument is a matter of substance.

12. As the Defendant has failed to show any ground of appeal with reasonable prospects of success, I do not think it would be appropriate to grant leave to appeal and I have dismissed the Defendant's application.