XCHRX FAN CHUNG YUEN v. SUN KEE SEAFOOD RESTAURANT

IN THE SUPREME COURT OF HONG KONG

 LABOUR TRIBUNAL APPEAL NO. 148 OF 1995

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J U D G M E N T

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1. On 1st July 1990 the appellant Sun Kee Seafood Restaurant employed the respondent Fan Chung Yuen as person in charge of the restaurant. The terms of employment included 7 days notice for dismissal or wages in lieu. The respondent was dismissed on 15th March 1995. He was paid one month's wages at the time of dismissal. The respondent claimed 7 days wages in lieu of notice and severance payment.

2. At the hearing before the Presiding Officer at the Labour Tribunal, the respondent admitted that when he was dismissed he had already received a sum of $23,500 which included his salary for the 1st half of March, 95, 2 days statutory holiday pay and one month's wages as compensation. The appellant at the hearing told the Presiding Officer that the respondent was dismissed because of personal reorganisation i.e. to ask some one to replace him because he had argument with other staffs. The Presiding Officer found there was no reason for dismissing the respondent and that the appellant had failed to discharge the burden to show that the dismissal was not by reason of redundancy. The appellant now appealed on the ground that the Presiding Officer had failed to investigate fully the reason for dismissal.

3. The appellant submitted that the Presiding Officer had failed to understand what he meant by reorganisation of manpower. He submitted that he told the Presiding Officer that because the respondent did not handle the company business in a proper manner, he had to find some one to replace him. He submitted that at the time of dismissal, the respondent asked for two months compensation and he agreed but both further agreed that one month's wages would be paid on the spot while the remaining one would be paid later at the Labour Tribunal. The respondent accepted this arrangement but he later went to the Labour Tribunal to claim severance payment. The appellant submitted that the Presiding Officer had not considered this oral agreement which would show that the respondent was not dismissed by reason of redundancy.

4. The respondent submitted that he was never asked about the oral agreement at the Labour Tribunal. He said there was no such oral agreement. He said the appellant's representative Mr. Poon was to replace him. However, he did not mention this at the hearing before the Presiding Officer.

5. Thus two questions relevant to the issue of redundancy were not investigated into by the Presiding Officer who has a duty to investigate. The question of oral agreement and the question of whether the respondent was simply replaced or he was dismissed because the position had been cut, should be decided. If the respondent had asked for 2 months wages as compensation on dismissal, it may very well be an indication that he knew his dismissal was for a reason other than reduction of staff by the respondent or, bearing in mind that notice of dismissal under his contract was only 7 days, he willingly accepted less as full and final settlement of his claim for severance payment.

6. The appeal is therefore allowed and the award set aside. The case is remitted to the Labour Tribunal for a retrial on these questions. I make no order as to costs.

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