CHOW YIN CHUN v. FANG BROTHERS KNITTING LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO. 55 of 1987

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J U D G M E N T

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1. This appeal from the Labour Tribunal eventually turned on a very simple issue, and that was whether or not the Presiding Officer properly considered all the relevant issues before reaching his decision. In particular, it was argued for the Appellant by Mr Andrew Chung, the Presiding Officer had not considered properly or at all whether the Respondent had had her employment terminated in terms of section 9 (a) (iv) of the Employment Ordinance, Cap. 57.

2. The Respondent had worked for the Appellant company as an ironing worker for over ten years before she was dismissed on 10th July 1987. She was then given 7 days wages in lieu of notice. The dismissal instruction signed by Chan Mo, the factory manager, and the first defence witness at the hearing, was to the effect that the Respondent had disobeyed her superior's orders, that there were irregularities in the measurements of the clothes ironed, and that the accounts office had been asked to pay her wages.

3. The Respondent had been an ironing worker and was paid on the basis of so much for each garment ironed. The garments were inspected by section heads to ensure that they were satisfactory and according to specifications. On 10th July the Respondent's garments did not pass the inspection and she was asked to re-iron them. While there was nothing unusual about workers being asked to redo their work, the witnesses or some of them testified that the Respondent's work standards had dropped so that she had been asked quite frequently in the recent past to redo her work.

4. In terms of section of 31R of the Employment Ordinance, Cap. 57 an employee may become entitled to a long service payment. The Respondent was so entitled. However in terms of section 31S that entitlement would be lost if the empolyee was dismissed in accordance with section 9 of the Ordinance. It was therefore in this case incumbent on the Presiding Officer to consider whether or not the Respondent's dismissal was in accordance with section 9, because if it was not then the Respondent was entitled to her long service payment. The Presiding Officer decided she was.

Section 9 reads as follows: -

"An employer may terminate a contract of employment without notice or payment in lieu -

(a) if an employee, in relation to his employment -

(i) wilfully disobeys a lawful and reasonable order;

(ii) misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties;

(iii) is guilty of fraud or dishonesty; or

(iv) is habitually neglectful in his duties; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law.

5. We are in this case only concerned with section 9 (a) subsections (i) and (iv), and whether or not the Presiding Officer considered them before granting the Respondent her long service payment. Clearly the presiding officer dealt with subsection (i) when he stated in his judgment [188 of the Bundle] " I am also satisfied that she did not wilfully disobey the order". He meant by that that he found she had not refused to re-iron certain garments as alleged and which refusal was given as a reason for her dismissal.

6. There therefore remained the matter of subsection (iv). There was undoubtedly evidence to the effect that the Respondent's work standards had deteriorated and Mr Chung for the Appellant argued that that was equivalent to her being "habitually neglectful in his(her) duties" in terms to subsection (iv). Mr Wu submitted that the two terms 'substandard work' and 'habitually neglectful' were not synonymous and therefore the Presiding Officer had no need to consider subsection (iv) at all. Neither party produced any authority in support of his argument.

7. In The Law and Practice of the Labour Tribunal R.A. Ribeiro includes a useful chapter on termination of contracts and at P.57 deals with section 9 (a) (iv) of the Employment Ordinance and the meaning of the expression 'habitually neglectful'. He emphasizes that the neglect must be substantial and it must be habitual. He also distinguishes cases of actual negligence in performing duties from cases where duties were neglected i.e. absence from or lateness for work. Clearly this case does not fall within the latter category and I have grave doubts whether in the circumstances of this case what was complained of amounted to habitual neglect.

8. However even if I were wrong about that it seems to me clear that the Presiding Officer did have before him the evidence that the Respondent's work had fallen below standard and that he considered that evidence. In his judgment he said [at p. 54 of the Bundle]: -

"There was no dispute that the Claimant was alleged by D.W.2 and D.W.3 that her performance was below standard. However, I was satisfied that it was not the cause of dismissal."

and later he said: -

"I am satisfied that the dismissal was not for cause."

and again:-

"I am satisfied from the evidence and found as facts that the Claimant was entitled to have long service payment by reason of dismissal under S.31R of the Employment Ordinance."

9. From all of that I am satisifed that the Presiding Officer had in mind the terms of section 9 of the Ordinance when he reached his decision, and in particular subsections (i) and (iv).

10. As no point was taken on the correctness of the Presiding Officer's actual findings I find there is no merit in this appeal which is therefore dismissed.