GLORIA VILLAMAN v. DURGA DEVI TILLANI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

-----------------

-----------------

JUDGMENT

-----------------

Introduction

1. The Appellant ("the employee") was employed by the Respondent ("the employer") as a domestic helper. Her employment came to an end in January 1997. She lodged various claims in the Labour Tribunal. Some of those claims were allowed. Others were dismissed. She applied for leave to appeal against the dismissal of those of her claims which had been dismissed. She was granted leave to appeal in respect of one of those claims, namely her claim for wages in lieu of notice. This is her appeal against the dismissal of that claim.

The parties' evidence

2. The employee's claim for wages in lieu of notice is, of course, dependent on her having been dismissed. Her evidence in the Labour Tribunal was that her employer had accused her of stealing some money. Her employer had told her that she, the employer, was going to the Immigration Department to ask for the employee's visa to be cancelled. However, before they went to the Immigration Department, the employee was required to sign a letter addressed to the Immigration Department which had been drafted by the employer. In it, the Immigration Department was being informed that the employee would no longer be working for the employer and the Department was requested to terminate her contract. A similar letter was written by the employer. The employee signed the letter. Her evidence was that she was not leaving her employment willingly, and that she only signed the letter because she would otherwise not have been given a release letter from the employer enabling her to obtain employment elsewhere.

3. The employer's evidence in the Labour Tribunal was that when she accused the employee of stealing some money, the employee said that she wanted to cancel the agreement. The employer was willing for the employee's employment to come to an end, and went to the Immigration Department to cancel the employee's contract. However, she was informed that the employee had to confirm that. Accordingly, she drafted the letter for the employee to sign, and the employee willingly signed it.

The reasoning of the Presiding Officer

4. In his Reasons for Decision, the Presiding Officer referred to the letter which the employee had signed in the following terms:

"... when she signed [it], she was physically at the Immigration Department. If she [had not been] willing to sign [it], she must [have been] able to complain to the Immigration Officer. And she could not satisfy me there was any special circumstance preventing her so to do. I accept the letter was written by her and she was bound [by it]."

The Presiding Officer concluded that that letter, together with the similar letter written by the employer,

"clearly show a mutual agreement to terminate the contract. The [employee] was not wrongfully dismissed and her claim for wages in lieu of notice must fail."

The law

5. It is plain that the Presiding Officer found that the employee had not been dismissed because there had been a mutual agreement to terminate her employment. However, a mutual agreement to terminate the employment did not necessarily mean that the employee had not been dismissed. If an employer puts pressure on an employee to agree to the termination of the employment, the termination may nevertheless be a dismissal. Whether it will or not depends on all the circumstances of the case. The law was clearly explained in relation to an employee's resignation in Sheffield v. Oxford Controls Co. Ltd. [1979] I.C.R. 396. At p.402E-H, Arnold J. said:

"... where an employee resigns and that resignation is determined upon by him because he prefers to resign rather than to be dismissed (the alternative having been expressed to him by the employer in the terms of the threat that if he does not resign he will be dismissed), the mechanics of the resignation do not cause that to be other than a dismissal... We find the principle to be one of causation. In cases such as that which we have just hypothesised, ... the causation is the threat. It is the existence of the threat which causes the employee to be willing to sign, and to sign, a resignation letter... But where that willingness is brought about by other considerations and the actual causation of the resignation is no longer the threat which has been made but is the state of mind of the resigning employee, that he is willing and content to resign on the terms which he has negotiated and which are satisfactory to him, then... in such a case he resigns because he is willing to resign as the result of being offered terms which are to him satisfactory terms on which to resign."

The same principle applies to an agreement to terminate the employment. In my view, the Presiding Officer did not address the question as to what caused the employee to sign the letter. Was it because she genuinely wanted to leave her employment, as the employer contends? Or was it because she did not wish to leave her employment, but knew that she was going to be dismissed, and signing the letter was the only way to enable her to obtain a release letter which would enable her to obtain employment elsewhere?

6. Mr. Paul Lam for the employer argues that the passage from the Presiding Officer's Reasons which I have quoted shows that he had in fact made an express finding that the employee had agreed to leave her employment willingly. I do not agree. What the Presiding Officer found was that the employee had signed the letter willingly. That did not necessarily mean that she was content to leave her employment. Her case was that she was not leaving her employment willingly. The reason she gave for signing the letter was that only then would she have had a chance to obtain another job. Whether there was a mutual agreement to terminate her employment ultimately depended, not merely on whether she was willing to sign a letter to that effect, but on whether she had been content to leave her employment. The employee's case was that she was not content to leave her employment: it was her employer who had said that she had to. The employer's case was that the employee had been content to leave her employment: after all, it was the employee who had asked for the contract to be cancelled when the allegation of theft was made. That was the real question of fact which the Presiding Officer had to decide.

Conclusion

7. Accordingly, this appeal must be allowed, and the dismissal of the employee's claim for wages in lieu of notice must be set aside. Since it is necessary for findings of fact to be made as to whether or not the employee was content to leave her employment, her claim for wages in lieu of notice must be remitted to the Labour Tribunal. In the circumstances of the case, I direct that the claim be heard by a different Presiding Officer.