MOK MAN CHUNG v. SHING HING (CHINA) TRANSPORTATION CO LTD

HCLA39/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 39 OF 2009

(ON APPEAL FROM LBTC NO. 4004 OF 2009)

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J U D G M E N T

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Background facts

1.  The claimant was a professional driver employed by the defendant (appellant) since 19 February 1998.  By a letter dated 15 December 2008 the defendant dismissed the claimant.  The claimant successfully claimed payment in lieu of annual leaves, holidays and long service payment in the Labour Tribunal on 20 November 2009.

2.  In the court below, the defendant was represented by one of its directors, Mr Lau, who submitted that the defendant was carrying its own business and was an independent contractor from 19 February 1998 to 31 October 2000.  The Presiding Officer, Ms Chui Yee Mei Ivy rejected this argument and Ms Lorinda Lau, counsel representing the defendant in this appeal, rightly abandoned this argument.  It was held that from 1 November 2000 to 31 August 2001 the claimant was employed by another company and from 1 September 2001 to 14 January 2009 the claimant was employed by the defendant company.  This appeal is mostly concerned with the employment between 1 September 2001 to 14 January 2009.

3.  Ms Lau submitted 4 grounds of appeal :

1.   The Presiding Officer erred in law in awarding the annual leave entitlement of the claimant by using the wrong basis in admitting the days of entitlement.

2.   The Presiding Officer failed to consider clause 9 of the 2001 and 2003 contracts.  The clause reads :

「9.   福利

乙方可享有勞工法例規定的假期(除勞工假期外，每做滿一個工作年有7 天)及福利。但由於乙方要超時及在勞工假期工作，乙方可向甲方要求在星期一至星期五(非勞工假期)補假或另安排休息日。甲方會視乎工作分配及個別情況而批淮。

備註：乙方在無工作的工作日、貨車修驗期間、中港證件續期期間，均作乙方休息日或補假論及均無薪金津貼或補償。」

3．    The Presiding Officer failed to consider whether s. 9 of the Employment Ordinance, Cap. 57 was applicable.

4.   The Presiding Officer failed to call Mr Tsang Chiu Hay as witness to find out if the claimant was told that the 27% of net profits that he was paid includes payment for all unclaimed holidays, unclaimed annual leave, etc.

The first ground of appeal

4.  From para. 49 of the Reason for Decision, Mr Lau was found to have said that he would not dispute the calculated amount in Form 2 of the Form of Claim.  At this stage, it is not open to the defendant to say that it wishes to go back on its concession and dispute the calculation in Form 2.  I therefore give no weight to this ground of appeal.

The second ground of appeal

5.  Ms Lau relies on s. 20 of the Labour Tribunal Ordinance, Cap. 25, which requires the presiding officer to “investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party”.  This section was explained by Deputy Judge Chan (as he then was) in Chan Suk Bing Angie v Harbour Phoenix Ltd & Anor, HCLA46/1991 :

“It is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty.  The relevant matter forming the subject matter of the complaint must not only be relevant, but be of such a nature that the lack of investigation will give rise to injustice in that a fair and proper determination of the claim cannot be attained.  All the circumstances of the case as well as all other findings of fact must be given all due regard before such a complaint can be upheld… To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.”

6.  Ms Lau submitted that the Presiding Officer had failed to investigate whether the claimant had used any of the annual leaves by virtue of clause 9 found in the 2001 and 2003 contract.  It is true that the learned Presiding Officer did not rule on this issue.  In fact, this clause was not mentioned in any part of the Reason for Decision.  The primary issue is whether the lack of investigation would lead to a reasonable man to conclude that injustice had resulted.

7.  Assuming that clause 9 (as quoted above) is effective, it is inconceivable that this clause had never been invoked if it is in favour of the defendant.  It was quite possible, if not probable, that the claimant was unable to work because of his health and/or the failure of his truck at some point during the employment.  This clause therefore satisfies the test laid down by Deputy Judge Chan in HCLA46/1991.  However, as this clause is related to the number of holidays and annual leaves, which had been calculated and set out in the undisputed form (Form 2 of the Form of Claim), the learned Presiding Officer was right in not embarking on any investigation of this clause when as aforesaid, the defendant had conceded on the calculation.  It is not open to the defendant to go back on its concession and re-open the assessment of the number of holidays and annual leaves at this stage. The second ground of appeal is therefore dismissed.

The third ground of appeal

8.  Under the letter of termination dated 15 December 2008, the defendant dismissed the claimant because of his failure to observe the regulations laid down by the defendant.  This would appear to be a case of summary dismissal under s. 9 of the Employment Ordinance, Cap. 57 on its face.  However, the letter went on to provide a one-month notice and an undertaking by the defendant to provide regular and reasonable jobs (正常合情合理的工作) during that one-month period.  This undertaking was inconsistent with the usual situation of summary dismissal, where an employee is immediately dismissed.  In light of the seriousness of summary dismissal and the stringent requirements attached to it, there was insufficient evidence to suggest that the claimant was summarily dismissed.  I am also aware of the fact that Mr Lau did not put forward this defence in the Tribunal below.  The learned Presiding Officer was not required to cast her mind on every possible factual or legal argument, especially when it is not even suggested by the evidence or submitted by the defendant.  I would therefore dismiss this ground of appeal.

The fourth ground of appeal

9.  Ms Lau submitted that since the learned Presiding Officer said Mr Lau “might have heard about the 27% payment matter from Mr Tsang”, Mr Tsang should have been called as witness.  In the court below, Mr Lau submitted that in the 2001, 2003 and 2005 contracts, there should be a term that 6% of the claimant’s income was to be set aside for the purpose of satisfying any payment in lieu of annual leaves and holidays (“the 6% clause”).  Mr Lau submitted that the claimant and the defendant (through Mr Tsang) agreed with this term orally but the defendant forgot to put it in writing.  The claimant’s income was said to be 27% of the price received by the defendant, thus the name “27% payment matter”.

10.  It is useful to recall the reasons why this part of Mr Lau’s submission was dismissed.  At para. 28, the learned Presiding Officer observed that as the defendant was sophisticated enough to renew the employment contract every two years, it was not possible that the defendant “forgot” to add the 6% clause in the 2001, 2003 and 2005 contracts.  She also observed, at para. 29, that the conduct of the claimant was inconsistent with that submission and at para. 30, that the salary receipt failed to evidence the 6% apportionment when the 5% MPF payment was clearly evidenced.

11.  These are overwhelming evidences that tend to show that the claimant and the defendant never agreed to the 6% clause orally.  Even if Mr Tsang, who is one of the directors of the defendant company was called upon it could not help the defendant.  I would therefore dismiss this ground of appeal.

Conclusion

12.  I have dismissed the four grounds of appeal for the reasons given above.  It is useful to observe that as the defendant (through Mr Lau) had given concession to the calculation of annual leaves and pays, it is not open to the defendant (through Ms Lau) to reopen this issue at this stage.  There was never a suggestion of summary dismissal in the court below and the reason behind the dismissal had never been fully contested.  It is certainly not open to the defendant to rely on this point at the appeal level.

13.  As this is an ex parte application, I would not make any order as to costs.  The amount paid in court in relation to the judgment award shall be released immediately to the claimant together with interests accrued thereon, if any.

Epilogue

14.  Through the 2^nd Affirmation of Lau Kin Kwong, the defendant sought to adduce further evidence to show that the claimant was unable to work at some point during the employment because of the need to repair the truck and obtain entrance permit into China.  The defendant also sought to establish that the claimant committed a serious misconduct which justified summary dismissal.  The first point is related to the second ground of appeal while the second point is related to the third ground.  The defendant sought to adduce numerous documents to prove those points.  The defendant made this application by an ex parte summons.

15.  However, this court is bound by s. 35 of the Labour Tribunal Ordinance, Cap. 25, which prohibits the reception of further evidence :

“s 35 Powers of Court of First Instance on appeal

(1) On an appeal for which it has granted leave under section 32, the Court of First Instance may—

(a)   allow the appeal;

(b)   dismiss the appeal; or

(c)   remit the matter to the tribunal with such directions as it thinks fit, which may include a direction to the tribunal for a new hearing.

(2) On an appeal for which it has granted leave under section 32, the Court of First Instance may-

(a)   draw any inference of fact; and

(b)   make such order as to costs and expenses as it thinks fit,

but may not—

(i)    reverse or vary any determination made by the tribunal on questions of fact; or

(ii)   receive further evidence.

(3) Subject to section 35A, the decision of the Court of First Instance shall be final.”

16.  After I have pointed out that s. 35 prohibits the adduction of further evidence at this stage, Ms Lau had rightly withdrawn this application.  As Ms Lau had withdrawn the application to adduce new evidence on appeal, and the facts available to the Tribunal below were insufficient to establish the two grounds of appeal, I have dismissed those grounds as aforesaid.