MOK LI YUN v. D'URBAN DISTRIBUTORS (HONG KONG) LIMITED

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO.17 OF 1994

(CLAIM NO. E2663 OF 1993)

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J U D G M E N T

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1. This is an appeal by the Appellant/Claimant (employee) against the decision of the learned Presiding Officer Mr G. Chan in the Eastern Labour Tribunal against his determination on 7 March 1994.

2. The Appellant/Claimant in the Labour Tribunal was a sales Supervisor for the Defendant's Le Blazar counter at Tokyu Department Store. The Claimant alleged that on 11 March 1993, the Defendant's Sales Director Miss Grace Yu Wai Fung informed her that as from 16 March 1993, the Claimant would have to work as a salesgirl for the time being in the Defendant's D'Urban counter in the Sogo Department Store as the Le Blazar counter in Tokyu Department Store would by then close down. There was there and then no supervisor post available in the Defendant's company. The Claimant was reluctant to work as a salesgirl. However, the learned Presiding Officer said in his Finding of Facts that he did not believe the Claimant's account that she refused to work as a salesgirl in Sogo, and Miss Yu then dismissed her by giving her one month's notice.

3. On 19 March 1993, there was a meeting between the Claimant and Miss Yu and the Senior Sales Supervisor Miss Betty Cho Wai Lin. This conversation was surreptitiously tape recorded by the Claimant. The learned Presiding Officer in his Finding of Facts said :-

"After hearing the whole conversation as recorded in the tape by DW1, [i.e. Miss Yu] on 19 March 1993, I was impressed that this was an attempt on the part of the claimant to get DW1 to saying things on 19 March 1993 which could be construed that she had been dismissed by DW1 on 11 March 1993. Indeed there were certain things said by DW1 which could have such meaning but there were also other things said by DW1 which clearly pointed to the other direction which showed DW1 did not dismiss the claimant on 11 March 1993."

4. The learned Presiding Officer then went on to consider other parts of the conversation as tape recorded and he came to the conclusion that :-

"I did not find the conversation as recorded in the tape by the claimant on 19 March 1993 constituted indisputable or irrefutable proof that the claimant was dismissed by DW1 on 11 March 1993. If the claimant was dismissed by DW1, how could DW1 have said such thing as were quoted above? In my view, this taped conversation does not really help to establish whether claimant was dismissed by DW1 or not on 11 March 1993."

5. I, for my part, do not understand why the learned Presiding Officer said the tape itself could not constitute "indisputable" or "irrefutable" proof that the Claimant was dismissed by DW1 on 11 March 1993. The Burden of proof is on the Claimant and the standard was one of balance of probability. It was not encumbent on the Claimant to prove indisputably or irrefutably that she was dismissed by DW1 on 11 March 1993. The duty was to prove on the balance of probability that she was so dismissed on 11 March 1993. I am making this observation not because of sematic. At the end of his written Reasons for Decision dated 25 April 1994, which was after the Claimant had lodged her application for leave to appeal on 16 March 1994, the learn Presiding Officer said that :-

"In her application for leave to appeal the claimant sets out two grounds of appeal. One was that I dismissed her claim for severance pay because I said I was not present when DW1 spoke with her on 11 March 1993, and I did not know who told the truth, and the other was I had failed to advise her that she could claim for long service pay in addition to severance pay or in the alternative. When I delivered judgment on 7 March 1994, I analysed the evidence and I said the court was entitled to draw inference from the evidence. I said the judge would not be in a position to know who was telling the truth because he was not at the scene. But in a court hearing, all he could do was to arrive at a decision based on the evidence and indeed it would be his duty to do so. I did not said because I was not at the scene and therefore did not know who was telling the truth, I dismissed her claim for severance pay. I do not think it is my duty to advise a claimant what she should claim and what she should not claim."

6. In my view, I consider that any tribunal should not say that it would not be in a position to know who was telling the truth because he was not present at the scene even though such contention was covered or explained by how a tribunal would work in attaining practical justice. It would give a litigant the misconception that for any piece of evidence he sought to adduce, he would have to summons a judge to be present. Otherwise he would not be in a position to prove anything. Any tribunal is not required to find out the absolute truth. We are not required to answer the inquisitive quest of Pontious Pilate : "What is the truth?" Besides, if a judge was actually, by coincidence or divine synchronicity present at the scene, he would not be qualified to sit as the judge because he would be a witness of the case.

7. Against this background of utterance by the learned Presiding Officer, I think the choice of words, as I have said of "indisputable" or "irrefutable" gave me a strong sense of uneasiness. I am conscious that in respect of finding of facts, I am bound by the statute not to disturb unless there is an error of law according to s.53 of the Labour Tribunal Ordinance. Here, there is some indication that the learned Presiding Officer did not avert his mind to the basic standard of proof required of the Claimant.

8. The matter does not stop here. After his Finding of Facts and Decision in that he did not believe the Claimant and dismissed her claim the learned Presiding Officer said :-

"In the circumstances of this case, I do not think that claimant was dismissed constructively because she was not given another Supervisor's post immediately. When the Le Blazar counter in Tokyu Department Store was closed down, there was no other Supervisor's post available at that time and it was impossible for the claimant to be given a Supervisor post immediately. On 22 March 1993 the Sales Supervisor of the Le Blazar counter in Sogo Department Store suddenly resigned on that date and the claimant was asked to fill that post but she agreed to do so only if she was regarded as having been given one month's notice of dismissal on 11 March 1993. The claimant did not alluded to having been dismissed constructively. She maintained all the while that she was directly dismissed by DW1 on 11 March 1993."

In my view, the learned Presiding Officer did not give enough thoughts as to whether this is a case of constructive dismissal.

9. Mr Wong for the Respondent repeatedly submitted to me that the Finding of Facts was that the remuneration of a salesgirl would be the same or even more than a Supervisor of the Le Blazar counter in Tokyu Department Store. That, to my mind, is only one of the consideration. Anyone who was asked to assume another job at a lower rank by way of demotion is an indication that it was a kind of constructive dismissal.

10. Under s.20(3) of the Labour Tribunal Ordinance which provided that the hearing of a claim shall be conducted in a informal manner, but then the Presiding Officer shall investigate any matter which he may consider relevant to the claim whether or not it has been raised by a party. In my view the learned Presiding Officer failed to investigate the difference in rank between a Supervisor and a salesgirl. One thing is obvious, if the Claimant was to assume the post of a salesgirl, she would be supervised instead of supervising other salesgirls.

11. The company structure in form of ranks, duties, positions and responsibilities, were not investigated. Mr Wong for the Respondent put the blame on the Claimant not to adduce evidence on those points. In my view, it is the duty of the Presiding Officer in this informal hearing to investigate all these relevant points in order to consider whether there was actually a constructive dismissal by requiring the Claimant on 11 March 1993 to go to another department store and work at a lower rank. There were indications that because of the close of the counter at the Tokyu Store, the Claimant was dismissed constructively by way of redundancy.

12. However, the matter still does not stop here. I was told that according to the evidence, Tokyu counter closed on 16 March 1993. The Claimant took a holiday from 16 to 19 March. On 20 March 1993, she in fact went to the Landmark counter of the Defendant company and worked as a Supervisor in the Le Blazar counter until 31 March. On 22 March she was told to take up the Supervisor post in Sogo. She refused to take up the job as a Supervisor in Sogo unless the company agreed that she was dismissed on 11 March 1993 by one month's notice. In other words, during that one month from 11 March 1993 until 10 April she treated that she was working for the company under that one month's notice. From 24 March to 10 April, she went to work as a Supervisor in the Le Blazar counter in Sogo Department Store. Both sides agreed that in the circumstances of the case if she was dismissed by the company she was, nonetheless, offered to renew her contract of employment or to re-engage her under a new contract as to the capacity and place she would be employed. The question is whether the employee has unreasonably refused that offer.

13. Section 31C of the Employment Ordinance, Cap.57, provided as follows :-

"31C. General exclusions from right to severance payment by reason of dismissal

(1) Except as provided by section 31H, an employee shall not be entitled to a severance payment by reason of dismissal where his employer, being so entitled by reason of the employee's conduct, terminates his contract of employment without notice or payment in lieu in accordance with section 9.

(2) An employee shall not be entitled to a severance payment by reason of dismissal if, not less than 7 days before the relevant date, the employer has offered to renew his contract of employment, or to re-engage him under a new contract, so that-

(a) the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the contract as in force immediately before his dismissal; and

(b) the renewal or re-engagement would take effect on or before the relevant date,

and the employee has unreasonably refused that offer.

(3) An employee shall not be entitled to a severance payment by reason of dismissal if, not less than 7 days before the relevant date, the employer has made to him an offer in writing to renew his contract of employment, or to re-engage him under a new contract, so that in accordance with the particulars specified in the offer the provisions of the contract as renewed, or of the new contract, as the case may be, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would differ (wholly or in part) from the corresponding provisions of the contract as in force immediately before his dismissal, but-

(a) the offer constitutes an offer of suitable employment in relation to the employee;

(b) the offer constitutes an offer of employment no less favourable to the employee than hitherto; and

(c) the renewal or re-engagement would take effect on or before the relevant date,

and the employee has unreasonably refused that offer."

14. Mr Chan for the Claimant submitted that there was no investigation into the reasonableness or the unreasonableness of the Claimant's refusal. He submitted that the relationship between the Claimant and the company, especially her Senior, had already turned sour and there was no point of continuing with any kind of employment. The lack of trust between the two parties as evidenced by the transcript of the tape made it impossible for the employment relationship to go no. It was in the wake of the Respondent's accusations against the integrity of the Claimant to the extent that the Claimant was described as a frequent liar and not fit to be a Supervisor. In short, he submitted that the mutual confidence and trust has been totally destroyed.

15. Be that as it may, I am of the view that further investigation in this area should be made and parties should be allowed to adduce evidence and argument as to whether the offer was unreasonably refused. For the aforesaid reasons, I think the whole case should be remitted back to the Labour Tribunal to be tried by another Presiding Officer including the first point, and that is whether the Claimant was given one month's notice on 11 March 1993 by way of dismissal. I understand this case has been going on for quite sometime. I further direct that an early date should be given by the Tribunal for the hearing of this case. In short, this appeal is allowed and the case is remitted to the Labour Tribunal for a retrial before another Presiding Officer.

16. [The Court went on to give certain directions for the re-trial of the claim.]