XCHRX HUNG CHI KUEN v. ASSOCIATED TOURIST COACH LTD.

HCLA 86/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 86 OF 2000

(ON APPEAL FROM LABOUR TRIBUNAL
CLAIM NO. LBTC 9806/1999)

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REASONS FOR DECISION

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1. This is an application for leave to appeal against the decision of the Presiding Officer Mr Michael Wong on 17 October 2000 under Section 32 of the Labour Tribunal Ordinance, Cap. 25. The Claimant's employment was terminated summarily by a letter of the Defendant dated 15 September 1999. He had been employed by the Defendant as a coach driver since 25 April 1992 and was mainly deployed in the transportation of tourists. The Claimant claimed payment in lieu of notice, refund of deduction of wages, annual leave payment, year-end payment, long service payment, safety award and severance pay. He withdrew his claim for severance pay and the claim for safety award was dismissed. In respect of the five remaining items, the Presiding Officer awarded the Claimant a total sum of HK$76,412.00, having found against the Defendant that there was no ground for summary dismissal.

2. At the trial, a total of 5 grounds were put forward by the Defendant to justify summary dismissal. At the hearing before me, it was argued by Miss Rachel Cheung for the Defendant that the Presiding Officer had erred in law in failing to find some of the grounds sufficiently serious to justify summary dismissal under Section 9 of the Employment Ordinance, Cap. 57 and that he had failed to take into account the cumulative effect of the grounds alleged by the Defendant.

The first ground

3. This related to a traffic accident on 10 September 1999 involving the coach driven by the Claimant with another coach of the Defendant driven by the Defendant's employee Mr Ngan Hing Kwok, who was called as the fourth witness for the Defendant at the trial. The accident took place when the Claimant was driving down from Stubbs Road on his way to the peak tram station. After the Claimant had turned right into Queen's Road East, he cut into the second lane on the left from the third lane. As the private car in front of the Claimant's coach had braked, the Claimant also stepped on his foot brake lightly. Mr Ngan's coach, which was behind the Claimant's coach, could not stop in time and ran into the rear of the Claimant's coach.

4. The Presiding Officer made the following findings of fact. He found that it could not be established that the Claimant had turned right into Queen's Road East and cut into the second lane on the left deliberately because Mr Ngan's coach did not give way to the Claimant's coach as they were travelling down Stubbs Road as alleged by the Defendant. He found that at the material time, there was a private car in front of the Claimant's coach and that private car had also cut into the second lane on the left and had braked, causing the Claimant to brake his coach. It was because Mr Ngan could not brake his coach in time that had caused the collision. The Presiding Officer also noted that after investigation by the police, no prosecution was brought against anyone and the police had merely issued warning letters to the Claimant and Mr Ngan on the ground that they were suspected of having committed the offence of careless driving. The Presiding Officer concluded that there was a degree of carelessness on the part of the Claimant in this accident but he did not think it sufficiently serious to warrant summary dismissal on any of the grounds in Section 9(a) of Cap. 59.

5. In coming to the above conclusion, the Presiding Officer had clearly considered the circumstances in which the accident took place. His judgment that there was only a minor degree of carelessness on the part of the Claimant cannot be faulted. He had rejected the Defendant's allegation that the collision came about due to a deliberate act on the part of the Claimant in cutting into the lane in which Mr Ngan's coach was travelling. I am quite unable to see how the Claimant's act could have amounted to wilful disobedience of a lawful and reasonable order on the part of the Defendant to drive carefully. An act of carelessness on the part of a driver may have potentially serious consequences on his employer and other road users. However, it is equally clear that not every act of careless driving on the part of an employed driver would be sufficiently grave to justify immediate dismissal.

6. It was also argued by Miss Cheung that the Presiding Officer had erred in holding that the burden of proof is on the Defendant to establish that the Claimant had committed the wrongful act complained of and that the dismissal was justified. In support of that proposition, the Presiding Officer had relied on the decision of Chung J in Li Shuk Man and Ors. v. Ho Wai Ling Rebecca trading as Windsor Sauna HCA No. 5446 of 1996, 26 May 2000. Miss Cheung submitted that there were three other decisions of Judges at First Instance in which it was held that the burden of proof was on the employee to prove that he had been summarily dismissed and that the summary dismissal was wrongful and they are To Kin Wah v. Shui Hing Co Ltd [1985] 1 HKC 239, Pao Yee Wah v. Chung Wah Stationery Factory Ltd Labour Tribunal Appeal No. 45 of 1985 and So Ching trading as South Sea China Co v. Kwan Hang Ching and Anor [1987] 2 HKC 297. It should be mentioned that these three cases were referred to in the judgment of Chung J and he had declined to follow them, having regard to first principles in the law of evidence and to other decisions in which it was held, contrary to To Kin Wah, that the burden was on the employer to prove that the dismissal was justified. If it were necessary to do so, I would have held that the Presiding Officer had correctly applied the law as to where the burden of proof should lie following the decision of Chung J. Although the Presiding Officer had mentioned the burden of proof in this instance, there was no need at all for him to do so. He had found the facts and gave his judgment accordingly. As stated by Deputy Judge Findlay (as he then was) in Chow Koon Sing trading as Lee Cheung Transportation Co v. Fan Kok Choy [1990] 1 HKC 429, "attention to the burden of proof is necessary only if a judge cannot come to a firm conclusion on the facts."

The second ground

7. This related to a traffic accident on 30 March 1998, which was more than a year and a half from the date of dismissal. The Claimant was travelling up Stubbs Road at the time and the rear side of his coach had mounted the pavement to avoid a vehicle in the opposite lane. As a result, the windows on the rear side of the coach were struck by some I-beams which had protruded from a construction site on to the pavement. No prosecution was brought by the police against the Claimant after investigation. No warning letter was given by the Defendant to the Claimant although the Defendant's manager had given a verbal warning to the Claimant, which allegation was denied by the Claimant.

8. It was found by the Presiding Officer that at most, the Claimant had made an error of judgment and if there was fault, it was fault of a minor character, not sufficiently serious to justify immediate dismissal.

9. Similar submissions were made by Miss Cheung to the effect that the Presiding Officer should have found that the misconduct was sufficiently serious for summary dismissal and that the Presiding Officer had erred with regard to the burden of proof. Again, I am wholly unable to see how such criticism could be justified.

The third to fifth grounds

10. The third ground related to an incident on 27 August 1999 when a customer lodged a complaint with the Defendant that the Claimant had failed to make a stop at the designated places with the result that the Defendant had to compensate the customer for the travelling expenses incurred. In respect of this allegation, the Defendant did not call its customer to give evidence. It had only produced a letter of complaint lodged by the customer. Having considered the evidence of the Claimant in this regard, the Presiding Officer did not find the allegation established. There was no need for the Presiding Officer to resolve this with regard to the burden of proof.

11. The other grounds may be dealt with shortly. One related to an allegation that in mid 1998, the Defendant had warned the Claimant that he should not drive so fast when he was inside the Defendant's carpark at Yaumatei. The other complaint was that the carpark manager Mr Ho and a number of tourist guides had complained that the Claimant had driven too fast and had a quick temper. The Presiding Officer pointed out that these were additional grounds for dismissal relied upon by the Defendant and were raised for the first time only in the course of the trial. He took the view that the Defendant had not adduced sufficient evidence to establish its allegations. He also pointed out that these allegations were very vague and lacking in particulars. I am unable to see any or any sufficient basis for challenging the Presiding Officer's findings.

Cumulative effect

12. It was submitted by Miss Cheung that the Presiding Officer had erred in law in failing to take into account the acts of the Claimant and to properly direct himself on the cumulative effect of the incidents that had taken place. I also reject this submission. Of the five grounds of misconduct alleged by the Defendant, the Presiding Officer found that the Claimant had committed mistakes of a minor character for the first two grounds. Although he did not use the words "cumulative effect" or similar wording in his decision delivered verbally on 17 October 2000 and in his reasons for decision dated 21 December 2000, it seems to me from a fair reading of the transcript and the reasons for decision that the Presiding Officer had considered the cumulative effect of these two acts and that taken together, the two acts of misconduct, which were more than a year and a half apart, could not be regarded as sufficiently grave to warrant immediate dismissal.

13. For the above reasons, I am of the view that no or no sufficient grounds of appeal have been advanced on the Defendant's behalf and I therefore dismiss the Defendant's application for leave to appeal.