WONG YUEN KWONG v. THE HONG KONG & CHINA GAS CO LTD

Labour Tribunal Appeal No. 105/86

__________________

H E A D N O T E

______________

Employment Ordinance - Redundancy - whether a fitter employed as a "shift-fitter" with entitlement to shift allowance is made redundant by being transferred to non-shift work.

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 105/86

(CLAIM NO. 3992 and 4502/86)

_______________

J U D G M E N T

_______________

Background

1. This is an appeal by the Hong Kong and China Gas Co. Ltd. ("the employer") against a decision of Mr P.C. Yu, a Presiding Officer of the Labour Tribunal wherein he found that Mr Wong Yuen-kwong ("the employee") was entitled to severance pay under section 31B of the Employment Ordinance, Cap. 57 on ceasing to be employed by the employer in August 1986 as a "semi-shift fitter" at its plant at Ma Tau Kok.

The Evidence

2. It was not disputed that the employer placed an advertisement in the Oriental Daily Newspaper in April 1982 inviting applications for the position of semi-shift fitter and repairer. The salary offered was "$1,860 - plus". The employee duly applied for the post and was interviewed by two of the employer's staff, Mr Lam Kwai-kam and Miss Alice Ho. Both gave evidence for the employer at the hearing, as did Mr Francis Wong who produced various records and the employer's contract. Mr Wong also gave evidence that from August 1986, because of the opening of the employer's plant at Tai Po, the employer did not need semi-shift fitters at its Ma Tau Kok plant.

3. Evidence was given by the employee and by Mr Lam and Miss Ho regarding the interview which preceded the signing of the employment contract. The effect of their evidence, as found by the Presiding Officer, was that the employee was told that initially he would be employed as a daily fitter,, but he would later on be put on semi-shift duties and would be then entitled to a 17.5% shift allowance on top of his basic salary. Mr Lam said that they were recruiting semi-shift fitters which is supported by the advertisement and there was undisputed evidence that the employee was told that eventually he would be transferred to those duties. That, indeed, was duly done in December 1982 and the employee remained on semi-shift duties till the end of July 1986. He was then told by letter dated 31/7/1986 that, as of the 1st August, he would revert to being a daily fitter and the shift allowance would cease. He was unhappy with that and left his job on the 22nd August 1966. He did not give formal notice.

4. Evidence that the employee was employed as a semi-shift worker was also given by Miss Alice no who said that she told him that he would be eventually transferred to semi-shift although she did not tell him specifically what would be his exact post.

5. It was the employee's case that a daily fitter and a semi-shift fitter were different jobs. The employer had advertised for semi-shift fitters and that Mr Lam had agreed that the employer was recruiting semi-shift fitters. While it was true that initially the employee was working as a daily fitter, it was clearly understood that he would go over to semi-shift work, on shift conditions, which in fact did happen. lie then continued doing that job for almost four years.

6. The employer's case on the other hand was that, under the terms of the contract of employment, the job was, simply that of a fitter, who could, at the sole option of the employer, be required to work shift duties. If he did so, he became entitled to the allowance but his hours of work were at all times to be determined by the employer. "Hours of work" included whether or not he was to be on shift duties.

7. In particular, the employer relies on the preamble in the written contract of employment which says that the employee will be engaged as a "fitter (Production) with effect from 1/5/1982". Clause 1 of the contract is relevant and reads :

"Your commencing basic wage will be $1,860 per month'....... A 17.5% shift allowance will be given whenever it is applicable."

Clause 5 which is also relevant reads :

"Your hours of work will be arranged by departmental head from Mondays to Fridays and also on Saturdays but you will be required to work overtime if the exigencies of the company's business so required."

The Law

8. Miss Corcoran who appeared for the employer relied on Prenn v. Simmonds⁽¹⁾ for the proposition that evidence of prior negotiations as to the intention of each party should not be received when considering the construction of a document. At p. 1384 Lord Wilberforce said:

"There is no need to appeal here to any modern, anti-literal, tendencies, for Lord Blackburn's well-known judgment in River Wear Commissioners v. Adamson (1977) 2 App. Cas. 743, 763 provides ample warrant for a liberal approach. We must, as he said, inquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances, which the person using them had in view. Moreover, at any rate since 1859 (Macdonald v. Longbottom, 1 E & E 977) it has been clear enough that evidence of mutually known facts may be admitted to identify the meaning of a descriptive term."

He then went on to say that that principle did. not, however, mean that evidence of long negotiations between the parties should be admitted as showing what those parties' intentions were and what was their subjective understanding. He concluded at p. 1385:

        "In my opinion, then, evidence of negotiations, or of the parties' intentions, and a fortiori of Dr.Simmonds’ intentions, ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the "genesis" and objectively the "aim" of the transaction."

I am satisfied that here the evidence received was as to the factual background and the aim of the contract, i.e. that the employee should be employed as a semi-shift fitter, albeit that he would not commence those duties immediately, and was properly received. It was called by both sides without objection.

9. Furthermore, section 35(2) of the Labour Tribunal Ordinance, Cap. 25 provides that, on appeal, this Court shall not reverse or vary any determination made by the Tribunal on questions of fact. While there is some law involved in the Presiding Officer's decision I am satisfied that it is fundamentally a question of fact. I am therefore, satisfied that even if I did not agree with his decision, I could not interfere with it. In fact, I am satisfied that he has not erred in law or in fact and I am in entire agreement with his decision on the fundamental issue of whether the employee was employed specifically as a semi-shift fitter, with the entitlement to shift allowance.

Findings

10. On consideration of all the facts as found by the Tribunal, I am satisfied that the employee was engaged as a semi-shift fitter and that by its letter to him of 31st July 1986, the employer constructively dismissed him from that position, the reason being that the plant at Ma Tau Kok did not then need semi-shift workers. The employee was told by Miss Ho at the time of the signing of the contract that while it referred to a "fitter - Production", he would be transferred to be a semi-shift worker when the employer decided to start its shift system. I have no doubt that, on the evidence, this was put to him on the basis of "when" that system started, not "if" it started.

Severance Pay

11. On the basis of the Presiding Officer's finding, the question still arose of whether or not he was entitled to severance pay. Section 31B of the Employment Ordinance, Cap. 57 provides that a worker shall be entitled to severance pay if he is dismissed by reason of redundancy and Section 31B(2)(c) provides that he shall be deemed to be so dismissed if "the requirements of that business for employees to carry out work of a particular kind in the place where the employee was so employed have ceased or diminished or are expected to cease or diminished".

12. At first sight, it seemed to me. that as the employee could, if he had so wished, continued on working at the employer's plant at Ma Tau Kok as a fitter, albeit not a shift-fitter, it could not be said that "work of a particular kind" had ceased to be available to him and I so indicated orally on the day of the hearing. I was then of the view that he was not entitled to severance pay.

13. I have now reconsidered this point and am now satisfied that I was not correct in that view. If one begins on the basis that the job of semi-shift fitter is different from that of a fitter, and it is inevitable in the light of the finding that the employee was dismissed from his position as a semi-shift fitter it must follow that work of that particular kind did cease to be available on the 31st of July 1986. There was no dispute that after that semi-shift fitters were no longer employed at Ma Tau Kok.

14. While the terms of employment will have been different and I would regard them as decisions which should be looked at for guidance only, this view finds support in Lesney Products and Co. Ltd v. Nolan⁽²⁾ were the Employment Appeal Tribunal, albeit relunctantly, held that night-shift workers who were transferred to day shift and lost overtime were dismissed for redundancy. That was followed in MacFisheries v. Findlay⁽³⁾, again with hesitation, when the E.A.T. again held that night-shift work had an "inherent particularity" and that workers transferred from day to night shift were made redundant. These decisions must also be looked at with caution as the U.K. legislation is not on all fours with the Employment ordinance and it may be the case, as in Nelson v. B.B.C. where it is in the interest' of the employee for there to be a finding of redundancy.

15. That being so, I am satisfied that the award made by the Presiding officer for wages in lieu of notice $3,203 and for severance pay $9,164 were correct. There was no dispute regarding the award for arrears of wages, medical allowance and pro-rata double pay. The Presiding Officer dismissed the employee's claim for a proportion of retirement pension and the employee does not appeal against that decision, which was clearly correct. The employer's claim for one month's wages in lieu of notice must also fail.

16. The appeal is therefore dismissed.

17. The employee was not represented and there will be no award of costs. He is now re-employed but apparently will not suffer loss of wages because of this hearing, I will however award him $50 as travelling expenses.

(1) [1971] 1 W.L.R. 1381

(2) [1977] I.C.R. 235

(3) [1985] 1 R.L.R. 489