XCHRX LEE YUET HO v. HING YIP KNITTERS O/B WAYLOY INVESTMENT LTD.

HCLA 26/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 26 OF 2000

(On appeal from Labour Tribunal Claim No. 7858 of 1999)

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REASONS FOR DECISION

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1. This is an application for leave to appeal by the Defendant employer against the determination of Mr Keith Poon, Presiding Officer, made on 8 March 2000. The Presiding Officer found in favour of the Claimant employee and held that the Defendant was not justified to terminate her contract of employment summarily under s.9 of the Employment Ordinance, Cap.57. She was employed by the Defendant as a cook and cleaner since 21 August 1991.

2. The findings of the Presiding Officer may be summarised as follows:

(1) Not long after the Claimant had commenced working for the Defendant in 1991, the parties reached an oral agreement to vary the Claimant's working hours at the Defendant's premises. Her hours would be "flexible" and they would be from around 11:30 a.m. to about 6:00 p.m.

(2) Pursuant to this oral agreement, the Claimant's arrival time of around 11:30 a.m. at the Defendant's premises had been in place for the past 7 odd years.

(3) There were discussions between the Defendant's manager Mr Ma Hung Fan and the Claimant in March 1999 and May 1999 during which Mr Ma told the Claimant that he expected her to arrive at the Defendant's premises for work by 10:00 a.m.

(4) The Presiding Officer rejected Mr Ma's evidence that the Claimant had agreed with him she would arrive at the Defendant's premises by 10:00 a.m. He found that the Claimant had merely said to Mr Ma that she would try her best. He found there was no agreement between the parties to vary the initial oral agreement that the Claimant could arrive for work at the Defendant's premises at around 11:30 a.m.

(5) In June 1999, Mr Ma's father, who was the boss, spoke to the Claimant and warned her that if she still could not come by 10:00 a.m., the Defendant would start making deductions from her wages by reason of her late arrival for work. The Claimant agreed to the wage deduction as suggested by the boss but she said she had never agreed that she would arrive at the premises by 10:00 a.m. Wages were deducted with the Claimant's agreement during June 1999. The Presiding Officer found that this constituted an effective compromise between the parties.

(6) On 26 June 1999, the Defendant dismissed the Claimant with immediate effect.

3. I should mention that there were other reasons given by the Defendant for the Claimant's dismissal. Those reasons were dealt with by the Presiding Officer in his Reasons for Decision dated 14 April 2000 and as they have not been relied on by the Defendant in seeking leave to appeal, there is no need to refer to them.

4. Mr Daniel Tang, who appeared for the Defendant in this application, sought leave to appeal on the ground that the award was erroneous in point of law. The grounds of appeal and the reasons in support thereof lodged by the Defendant on 17 March 2000 were substituted by the grounds prepared by counsel dated 2 May 2000. Three grounds were advanced by Mr Tang.

5. Firstly, he submitted that the Presiding Officer had misdirected himself and applied a wrong test as shown in the ex tempore reasons for decision in the Notes of Proceedings given at the conclusion of the hearing. He referred me to a passage in So Ching t/a South Sea Co. v. Kwan Hang Ching Anr [1987] 2 HKC 297 at 300F-H wherein Barnett J stated as follows:

"A presiding officer should make findings of fact as to whether the conduct complained of took place and if so, the circumstances in which that conduct occurred. As was put to me by way of illustration, there is, perhaps, a difference between an employee whose place is on a production line and whose late arrival, if only by a few minutes, will cause considerable disruption, compared with a clerk in an office who works semi-independently and whose late arrival in the morning will not have a commensurate disruptive effect. Having considered those matters, the presiding officer should then go on to consider whether the conduct amounted to a repudiation of the contract or flouted the essential contractual conditions."

6. I do not think Mr Tang's criticism of the ex tempore reasons given by the Presiding Officer is justifiable. Moreover, the ex tempore reasons were supplemented by the Reasons for Decision dated 14 April 2000. There is no substance in the first ground advanced by Mr Tang.

7. The second ground advanced by him was that the agreement to compromise in June 1999 was void for lack of consideration. I was referred to s.32(2) of the Employment Ordinance, Cap.57, which provided that an employer may deduct wages of an employee for absence from work. It was argued that as the Defendant had a statutory right to deduct wages for absence from work, the Claimant had provided no consideration by agreeing to this in the compromise agreement. This argument must rest on the promise that the Claimant was obliged to arrive at the Defendant's premises for work by 10:00 a.m., otherwise her failure to do so could not be regarded as absence from work without leave. As I have stated above, the Presiding Officer had made a clear finding that there was an initial agreement allowing the Claimant to arrive at the Defendant's premises for work around 11:30 a.m. and there was no agreement to vary this initial oral agreement. The argument that there was no consideration for the compromise agreement must clearly fail.

8. Next, it was argued by Mr Tang that the "agreement" between the Claimant and Mr Ma in May 1999 in which the Claimant had agreed to report for work at the Defendant's premises as early as possible would be void for uncertainty. I cannot see how this would advance the Defendant's case. The Presiding Officer had clearly found that there was no agreement between the parties regarding the time that the Claimant was to arrive at the Defendant's premises arising out of the discussions between the Claimant and Mr Ma in March and May 1999.

9. The last ground advanced by Mr Tang in his written submissions was that the Presiding Officer's finding that there were no fixed working hours in the Claimant's employment contract was contrary to and unsupported by evidence. Upon clarification with him, Mr Tang said that he was referring to the "agreement" in May 1999. As stated above, the Presiding Officer had made no such finding.

10. Further grounds were advanced by Mr Tang in his oral submissions. I need deal with only two of them. He submitted that an inference should be drawn that the Claimant was obliged to arrive for work at the Defendant's premises by 10:00 a.m. because there was introduced a clocking-in system which applied to all the Defendant's employees including the Claimant. Further, the Claimant had agreed to have her wages deducted if she should fail to arrive by 10:00 a.m. There was no reason for her to agree to this deduction unless she had an obligation to arrive for work by 10:00 a.m.. I do not agree that any such inference should be drawn. The clocking-in system was merely to record the arrival time of the Defendant's employees. It does not indicate or support any contractual requirement that the Claimant should arrive by 10:00 a.m. instead of 11:30 a.m. As for the compromise agreement to deduct wages, the Claimant might have agreed to this arrangement out of practical considerations in an endeavour to keep her job with the Defendant. Indeed, the Tribunal Officer had found the Claimant to be obliging and as accommodating as possible with her employer.

11. The other additional ground raised by Mr Tang in his oral submissions was that under clause 3 of the contract of employment signed by the Claimant on 21 August 1991, it was provided that the employee should comply with the working hours as required by the employer. It was argued that this gave the Defendant the right to require the Claimant to arrive at the Defendant's premises for work by 10:00 a.m. In this case, subsequent to the written agreement, there was an oral agreement between the parties whereby the Claimant was allowed to adopt "flexible" working hours and her working hours were varied to around 11:30 a.m. until about 6:00 p.m. I do not think the provision in the written contract could be construed as conferring on the employer a unilateral right to alter the working hours as agreed in the oral agreement.

12. There being no adequate basis for an appeal on point of law in any of the grounds advanced on behalf of the Defendant, I dismiss the application for leave to appeal.