LEUNG WAN JING AND OTHERS v. CHIAT SI PLASTIC METALWARE MANUFACTORY

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 17/87

(CLAIM NO. 4964/96)

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J U D G M E N T

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1. This is an appeal by the Chiat Si Plastic Metalware Manufactory (the employer) against a decision of the Labour Tribunal whereby 5 workers (the employees) were awarded various sums as severance pay pursuant to S. 31B(1) of the Employment Ordinance. There was no dispute as to other payments to which the employees were entitled.

2. The facts of the matter were not substantially in dispute. The employees all live in Yuen Long and were employed in the employer's factory which was then situated at Tuen Hun. The employees were paid a daily wage and in addition were given an allowance for taxi fare from Yuen Long. However, on the 2nd of October 1986 the employees were given a notice that they were to be transferred to the employer's main factory at Shamshuipo and the Tuen Mun factory would be closed. The notice did not refer to any provision for transport but at the hearing before the Tribunal, the employer's manager, Mr Chu Hing-fai, said that there was an offer to pay bus fares. The employees were not represented at the hearing but nevertheless this was not apparently challenged. Some other employees accepted the offer of alternative employment in Shamshuipo but these 5 claimants declined as it was too far for them to go.

3. It was the case for the employer that he was entitled to change the place of employment without being liable to severance pay provided the change was not from Kowloon and the New Territories to Hong Kong Island or vice versa. Section 31B(2) provides that an employee shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that the employer has moved or intends to move the place of employment from the Island of Hong Kong to Kowloon or the New Territories or from Kowloon or the New Territories to the Island of Hong Kong. Here clearly that provision does not apply and Mr Poll for the employer says that the clear intention of the legislature was that an employer was free to move the place of employment provided it was not from one side of Victoria Harbour to the other.

4. The section also provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the requirements for employees to carry out work of a particular kind in the place where the employee was so employed have ceased or are expected to cease. At first sight, this appears to conflict with the other provision but am satisfied that this simply means that if employment is offered in the same place of employment but doing work of a different kind, that shall constitute a dismissal by reason of redundancy, as for instance was the case in Wong Yuen Kwong v. China Gas Co. L.T.A. 105/86.

5. I am satisfied that the intention of the legislature is quite clear and that is that provided similar work at the same salary is still available to an employee without having to go from either Hong Kong to Kowloon and the New Territories or vice versa, the employee has not been dismissed by reason of redundancy and that is the position here. It is true that there was some dispute concerning the provision of a taxi allowance as against an allowance for payment of bus fares. I am however satisfied that the employer was prepared to pay bus fares to the employees. if they went to Shamshuipo and that the employees were not dismissed within the meaning of section 31B because alternative employment on the same fundamental conditions was available, to them albeit in a different place.

6. The appeal therefore will be allowed and the amounts payable to each of the claimants will be reduced by the amount of severance pay ordered. This means that the awards are as follows:-

C 1      -     $852

C 2      -     $936

C 3      -     $936

C 4      -     S1,539.30

C 5      -     $744

7. The 4th claimant Cheung Hang-lan said that if she was not entitled to severance pay, she wished to pay a claim for long service payment pursuant under S. 31B of the Employment Ordinance. She claims that she has been continuously employed for a period of 8 years and that she is 52 years of age. This would qualify her for that payment if. she had been dismissed but was not eligible for severance payment. I have held that she is not eligible for severance payment but it is then a question of whethershe has been "dismissed". This matter was not argued before the Labour Tribunal and forms no part of the Presiding officer's decision as he had held that the claimant was entitled to severance pay. I am in some doubt as to whether on the facts of this case the employee has been dismissed but Mr Poll indicated that he would advise the appellant that such a payment should now be made. If it is not, then the claimant can of course bring a claim for long service payment in the Labour Tribunal.

8. The employer has paid the amounts originally awarded into court. There will therefore be an order for payment out of court of the amount of the awards made in respect of each employee plus interest and the balance to be refunded to the employer.

9. Under the circumstances of this case, there will be no order for costs.