CHAN KA PO v. YAN WING GARMENT MANUFACTORY LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

Labour Tribunal Appeal No. 166/1995

(Appeal from Claim No. E 4421 of 1995)

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J U D G M E N T

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1. This is an appeal by Yan Wing Garment Manufactory Ltd against the decision of the Presiding Officer of the Labour Tribunal on 27th October 1995 awarding a total of $35,295.00 to the respondent Chan Ka Po in the latter's claim for wages in lieu of notice, arrears of wages, annual leave pay and severance pay.

2. The Presiding Officer made the following findings of facts upon the parties agreeing to them:

a. The respondent was first employed by the appellant as a sewing worker on 9th September, 1987 and she worked until the 1st June, 1995 when she only worked in the morning and left in the afternoon. Thereafter she did not return to work.

b. Between 30th April and 27th May, 1995, the respondent worked less than half of the total number of working days during that period.

c. The average daily wages of the respondent during that period was $225.

3. The respondent's case was that during that period of four weeks 30th April, 1995 to 1st June 1995, she was only provided with 7½ days work. She claimed under s.31E of the Employment Ordinance that she was deemed to have been laid off and therefore entitled to wages in lieu of notice of dismissal and severance pay.

4. The appellant's case before the Presiding Officer was, whilst admitting that according to the attendance records the respondent only worked 7½ days earning an average of $225 daily during that period of four weeks in which there were 25 working days prior to her departure, it was not true that the appellant did not provide work for the respondent on the rest of the working days. The respondent reported sick on some of these working days and on others, had returned to mainland China. The supervisor had asked the respondent to return to work but she did not. The attendance records recording that there was no work for the respondent did not truely reflect the position. The supervisor made such records to enable the respondent to qualify for attendance bonus.

5. Sections 31B and 31E of the Employment Ordinance are relevant and they provide as follows:

"31B (1) Where an employee who has been employed under a continuous contract for a period of not less than 24 months ending with the relevant date -

(a) ...

(b) is laid off within the meaning of s.31E,

the employer shall, subject to this Part ..., be liable to pay to the employee a severance payment calculated in accordance with s.31G.

31E (1) Where an employee is employed under a contract on such terms and conditions that his remuneration thereunder depends on his being provided by the employer with work of the kind he is employed to do, he shall for the purposes of s.31B(1) be taken to be laid off where the total number of days on each of which such work is not provided for him by the employer exceeds -

(a) half of the total number of normal working days in any period of 4 consecutive weeks; or

(b) ...

and he is not paid a sum equivalent to the wages which he would have earned if work had been provided on the days on which no work was provided."

6. The principal issue before the Presiding Officer was whether the appellant provided sufficient work for the respondent and this required a determination as to whether the respondent did not go to work because of her own private affairs or illness or because there was no work for her. If there was no work for her and she was not paid accordingly, she was laid off within the meaning of ss.31B and E. However, if there was work and she did not go to work for whatever reason, there was no lay off.

7. The Presiding Officer in her Reasons for Decision had this to say:

"In the present case, the Claimant (respondent) in May worked seven and a half days and was paid a total of $1,686.10 so that her daily wages was about $224. She was not paid any sum equivalent to the wages she would have earned if work has been provided.

I had no doubt that by providing the Claimant with less than half of the total number of normal working days work or payment of wages in lieu of such to the Claimant, the Defendant (appellant) had brought about a lay off situation for the purpose of s.31B and therefore I found that the Defendant was liable to pay the Claimant severance payment."

8. Mr Luk for the appellant complained that the Presiding Officer failed in her duty to investigate into the cause of the respondent's absence during those four weeks and had failed to make a finding whether her absence was due to no work was provided or her own private reasons. The award, it is submitted, therefore could not stand.

9. The Presiding Officer in her findings concluded that the respondent worked only 7½ days in the four consecutive weeks immediately prior to the relevant date and she also concluded that the respondent was not paid wages during the rest of the working days during that period. However, she made no finding on whether the appellant had failed to provide work during these other working days to the respondent. There was no finding on whether the respondent left because there was no work for her or because of her own private reasons. Without such a finding of fact particularly in view of the appellant's case, it would not be justify to conclude that there was a situation of lay off. The duty on the Presiding Officer to investigate into relevant issues whether raised by the parties or not is set down in the Labour Tribunal Ordinance. An award made without sufficient investigation in a material issue cannot stand. The appeal is allowed and the award is set aside. The case is remitted back to the Presiding Officer for a retrial on the issue of whether or not the absence of the respondent on the relevant working days was due to her own private reasons or because there was no work provided by the appellant to her. No order as to costs.

(Arthur Leong)

Judge of the High Court