LAM YUK WA HELEN v. TECHNOLOGICAL AND HIGHER EDUCATION INSTITUTE OF HONG KONG

HCAL 365/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 365 OF 2017

______________

______________

______________

D E C I S I O N

______________

1.  This is an application for leave to apply for judicial review. In her Form 86, the applicant seeks a declaration regarding:

(a) the “judgment” of an Appeal Board;

(b) a probation completion report.

No particulars or other details have been given about the above.

2.  Exhibited to the supporting affidavit dated 20 July 2017 are:

(1) an undated “Report of the Appeal on Performance Review” of the appeal panel of the Technological and Higher Education Institute (respectively “the appeal panel report” and “the Institute”);

(2) an email dated 13 December 2016 from the applicant to a Ms Wong of the Institute.

3.  According to a statement of the applicant (verified by her supporting affidavit):

(a) the applicant began her employment with the Institute in December 2015;

(b) her probation completion report was compiled in mid-October 2016 (about 10-1/2 months afterwards) (“the Report”);

(c) the applicant disagreed with the grading in the Report and requested for an appeal;

(d) there were matters in the Report which she found to be incorrect (either as regards conclusion or as regards facts).

4.  According to the appeal panel report:

(1) a meeting of the appeal panel was held in December 2016 where the applicant attended;

(2) additional documents were given at the hearing to the appeal panel by the applicant;

(3) the applicant intimated that she should be given a “highly effective” grading;

(4) the applicant mentioned various matters where she had made considerable contributions to the Institute;

(5) after the applicant left the hearing, her superior officer was invited by the appeal panel to provide background information regarding the Report;

(6) the applicant’s superior officer explained the basis for grading the staff’s work performance;

(7) the applicant’s superior officer informed the appeal panel the applicant was dissatisfied with “effective” grading and she considered it to be a negative grading.  The superior officer explained to the applicant it was an evaluation of her probation period performance and another review would be made as an annual assessment.

The applicant indicates in her supporting affidavit she disagrees with various matters set out in the appeal panel report.

5.  For reasons given below, I am not satisfied that this application has reached the threshold for giving leave to apply for judicial review.

6.  One, the applicant’s grading by her superior officer in the Report and the conclusions reached in the appeal panel report (namely, an “effective” grading was a positive grading and the appeal panel disagreed that it was equivalent to a “substandard” grading) were decisions made in an employment context.  At least prima facie employment matters are matters falling with the realm of private law (contractual) rather than public law. Private law matters are not litigated by way of judicial review.

7.  Two, the applicant has not explained why an “effective” grading should be regarded by her employer (the Institute) as a negative grading.  The ordinary English meaning of the word “effective” is not negative or derogatory.  More importantly, she has not explained whether such a grading would result in some practical harm or disadvantage to her or her employment with the Institute (such as her wages, her work title, her post and her scope of work).  In this connection, it should be noted:

(a) as at the time of the challenged decisions, the applicant’s employment with the Institute was probationary in nature and the employment period was relatively short (from December 2015 to December 2016);

(b) the applicant’s superior officer has indicated the applicant would undergo another grading process later (para 4(7) above);

(c) in fact, both the applicant’s superior officer and the appeal panel did not regard the grading to be negative or adverse (para 6 above).

Thus, it would seem any dispute about the grading is academic.

8.  Finally, this application was commenced in July 2017, more than half a year after the applicant became aware of the Report. While accepting that there was a delay in commencing this application, the applicant attempts to explain that time has been taken up by seeking legal advice.  However, delay caused by a need to seek legal advice is usually not a valid reason; there is no exceptional circumstance to justify a departure from that view.

9.  For the above reasons, this application is refused.