WU LAI WAH v. WINNER CO. (GARMENTS) LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO. 88 OF 1994

(CLAIM NO. ST-349/94)

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1. The appellant company Winner Company (Garments) Ltd. was the employer of the respondent Wu Lai Wah. The employment started when the contract of employment was signed on 15.5.82. The appellant on 1.3.93 issued a notice to the effect that an employee would be regarded as having resigned of his own accord if he absented himself without leave for more than three consecutive days.

2. Let me say at this early stage, that this notice imposing a condition breach of which would entitle the appellant to treat the contract of employment as at an end was not part of the original contract of employment between the appellant and the respondent. This was imposed unilaterally on the employees by notice after the contract was formed. There was no evidence of the respondent agreeing to a variation of his original contract. Clause 5 of the contract provides that the respondent was to abide by the rules and regulations of the appellant but these must be those existing at the time of the contract. The appellant could not pray in aid of Clause 5 to maintain that the notice dated 1.3.93 had been incorporated into the contract by reference. In any case, such a new condition was not supported by consideration from the respondent. It was not binding on the respondent. Be that as it may, at common law, absence from work by an employee without leave may be regarded as repudiation of the contract of employment by the employee.

3. The respondent asked for and was granted leave of seven days from 1.12.93 to 8.12.93. She did not return to work on 8.12.93. The supervisor Lee Pui Hing, DW 2, who had authority to grant leave to workers telephoned the respondent at her home but no one answered. On 13.12.93, five days after her leave had expired, the respondent telephoned the supervisor and asked for extension of leave. She was unable to tell the supervisor when she would be able to return to work. Nothing was mentioned as to whether her extension of leave was refused or granted. On 16.12.93, after 5:00 p.m., the respondent returned to her work, apparently not for the purpose of working. The supervisor asked her when she would return to work. She replied that she would ask for a few days leave. The supervisor said it was not possible and she was asked to go to see the factory manager. The supervisor in the presence of the manager asked the respondent if she could return to work by 20.12.93. The respondent replied she still did not know if she could make it. The manager, DW 1, Lee Mo Yan, asked the respondent why she was absent for so long. The respondent said that her grandmother was ill in China and she wanted to apply for further leave. But she was unable to say when she would be able to return to work.

4. The manager told her she would be treated as a new worker even when she return to work the next day because she had been away for so long.

5. The respondent treated herself as having been dismissed by the appellant and claimed wages in lieu of notice of dismissal and long service payment.

6. S.9(1)(b) of the Employment Ordinance provides for termination of employment without notice or payment in lieu on grounds which would entitle the employer to terminate the contract without notice at common law.

7. Under S.31S(1) of the Employment Ordinance an employee would not be entitled for long service payment if the employer was entitled to terminate his contract of employment without notice or payment in lieu under S.9 of the Ordinance.

8. Mr. Remedios for the appellant conceded that there was a dismissal of the respondent on 16.12.93 and whether the dismissal was an express dismissal or constructive dismissal was not material. He agreed that the issue really was whether the summary dismissal was justified at common law.

9. In his judgment, the learned Presiding Officer found that the respondent was absent from work after 8.12.93 and she did not ask for leave extension and it was the respondent's fault in not doing so. He found that the respondent did not explain why she did not return to work between 8.12.93 and 13.12.93 and she did not tell the court her reason for not returning was because of her grandmother's illness as she had told DW 1 the supervisor. He found that the supervisor could not decide on the matter of leave and referred her to the manager. The manager did not ask her why she had been absent for the first week but insisted that she returned as a new recruit.

10. The learned Presiding Officer said that the treatment of the respondent was too harsh since she had 10 years service and she was not absent without leave outright or left service. He found the respondent reticent and that had she told the company management the full facts, she might have been given a sympathetic treatment.

11. His judgment was that the harsh disciplinary action of wiping out the respondent seniority by registering her as a new recruit was not justified since her absence started with leave from the appellant and that was an isolated occasion of absence without leave. He considered that a warning would be more justified in the circumstances.

12. The learned Presiding Officer's findings of facts are all supported by evidence. The question is on those findings of fact whether the appellant was entitled to dismiss the respondent without notice or payment in lieu under S.9(1)(b) of the Ordinance.

13. Mr. Remedios submitted that where absence from work by an employee was without leave, it was the burden of the employee to give an explanation as to why he was absent and in the absence of such explanation, the employer was entitled to consider that the employee had evinced his intention not to continue wiht the employment. He submitted it was the duty of an employee to make himself ready and available for work during her period of employment and to provide the employer with information and reasons for remaining away from work.

14. He referred to McKensie v. Crosville Motor Services Ltd. [1990], ICR 172. There the appellant was employed as a bus driver. There was a strike of bus drivers; nevertheless the appellant continued to work. He then took one day's leave. He did not return to work on the following two days because he could not catch a bus because of foggy weather and on the second night, because he heard from the radio that the depot had been closed and he was told by the union that everyone had been dismissed. He did not on that night or thereafter advise the company of his reasons for not attending work. Although this is a case on unfair dismissal, it is relevant here because it decided on the duty of an employee to explain the reasons for his absence from work and to establish that he was not away from work as a result of deliberately withholding his labour.

15. Wood J. at page 177 had this to say:

"It seems to the industrial members that the dividing line is between the employee who remains at work, and the employee who does not continue to work. In the latter case there can be a perfectly reasonable assumption by the employer that the employee is withholding his labour in the absence of some reasonable explanation. There may be many perfectly sound and good explanations why he is not at work. He or she may, for instance be on holiday. He may be sick and able to produce evidence from his medical adviser; there may be other grounds. It is however in view of these members incumbent upon the employee, and as an implied contractual obligation, that if he is to remain away from work, he should provide his employer with information and a reason for his doing so; and in addition to his normal obligation ... to maintain contact with his employer and to ensure that the true picture is placed before the employer so as to establish that he is not away from work as a result of withholding his labour . ...

Look at in this way it is our judgment that where an employee absent himself from his work, then it is incumbent upon to explain to his employer why he has done so and to keep the employer informed. His motives or his thoughts must be communicated to the employer and the issue is then whether the employer has satisfied the tribunal that ... the employer was justified in reaching his decision to dismiss him ..."

16. In Thomas v. Vian [1872] it was held that it was for the workman to explain why he was absent.

17. On the findings of the learned President Officer, it can be said that the respondent deserved a sympathetic treatment. Nevertheless, the respondent had not discharged her duty of explaining the reason for her absence. She was given the opportunity but she, as found by the learned Presiding Officer, remained reticent and refrained from putting the full picture before the supervisor or the manager. The fact that she was employed on a no work no pay basis is not material. If she had given an explanation then the issue would be whether the explanation was reasonable for his absence from work.

18. On this basis, the appellant was entitled as a matter of law to assume that the respondent in remaining away from work had withdrawn her labour and repudiated her contract. The dismissal was justified and the appeal was allowed and the award set aside with no order as to costs.

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