LAM CHUN CHOI v. STANDARD CHARTERED BANK (HONG KONG) LTD

HCLA 15/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 15 OF 2015

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 3631 OF 2013)

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DECISION
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1.  This is an application for leave to appeal, brought pursuant to s 32, Labour Tribunal Ordinance (Cap 25). The applicant was the claimant in the Labour Tribunal (“the Tribunal”) whose claim for damages for wrongful dismissal against his former employer was dismissed by the Tribunal. The damages he sought included end-of-year payment, income loss, various contractual benefits/payments, and aggravated damages.

2.  The amended grounds of appeal (as further amended during the hearing for leave application) principally complains that the Tribunal erred in its construction of the scope of application of the former employer’s “Hong Kong Employee Discipline Procedures” (“HKEDP”) (the Tribunal appeared to have found HKEDP to be part of the employment contract).

3.  The facts giving rise to the above (as recorded in the Tribunal’s reasons for decision dated 18 June 2015) can be summarized as follows:

(a) the applicant was employed as group legal counsel from 29 January 2007 to 5 November 2010;

(b) he was summarily dismissed with wages in lieu of notice (the reason given for the dismissal was that his performance was not up to standard);

(c) prior to his dismissal, the applicant was put on a performance improvement plan (as a result of the 2010 interim review) (“the said plan”).  The assessment made at the end of the said plan was that he failed to achieve the expected performance.

4.  One of the main disputes at the Tribunal hearing was whether the former employer was entitled:

(1) to make use of the said plan; and

(2) not to make use of HKEDP,

as the means for determining whether to dismiss the applicant.

5.  In this connection, the applicant contends that the Tribunal erred in deciding that HKEDP:

“… should apply only to cases of conduct related performance instead of performance in general” (para 61, reasons for decision);

“… apply to misconducts or conduct related performance issues” (para 62, reasons for decision);

“apply only to conducts or conduct related performance issues but not poor performance in general” (para 63, reasons for decision),

when the actual language of HKEDP itself:

(a)  repeatedly uses both words “conduct” and “performance”, sometimes conjunctively, other times disjunctively;

(b)  suggests that the HKEDP mechanism was aimed at dealing with matters which are “gross” or “serious” (examples such as dishonesty, theft, fraud, alcohol or drug abuses, misuse of confidential information have been given) rather than “minor” ones.

6.  Although not expressly so stated in the amended grounds of appeal, I assume the applicant contends that the Tribunal has thereby misdirected itself and/or failed to have regard to relevant matters when determining his claim.

7.  Further to the above, the applicant relies on the Court of Final Appeal decision in Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 for arguing that his former employer could not rely solely on the contractual term for dismissing him by payment in lieu of notice (and disregard HKEDP which formed part of the employment contract) as a lawful means of terminating the employment contract.

8.  He also relies on the Ko Hon Yue decision for arguing that damages beyond an amount equal to the wages for the contractual notice period may also be payable for unlawful termination of employment contract.

9.  Having heard his submissions, and considered the materials placed before me, I am satisfied that there is sufficient merit in this application to justify leave to appeal to be given.

10.  Accordingly, leave to appeal is given for the grounds set out in the amended grounds of appeal (as further amended).