ARYAL RUKMAGAT v. DUMEZ GTM - CHUN WO J V

HCLA 59/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 59 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 9896 OF 2001)

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D E C I S I O N

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1. Pursuant to Section 32 of the Labour Tribunal Ordinance, this court can only grant leave to appeal against a decision of the Labour Tribunal if the Tribunal made an error of law or exceeded its jurisdiction.

2. Section 35(2) of that ordinance also provides that in the context of such an appeal, this court cannot reverse or vary any determination by the Tribunal on questions of fact. This court shall not receive further evidence at the hearing of such appeal.

3. Having read the relevant documents, the judgment of the Presiding Officer and the written submissions of the Claimant, and having considered what he said at the hearing for application for leave to appeal, I do not think he can demonstrate that the Presiding Officer made any error of law or exceeded her jurisdiction in coming to her decision.

4. On the evidence before her, the Presiding Officer was entitled to find as she did that the Claimant was dismissed by reason of the altercation and brawl on 18 August 2001. She was also entitled to find that the Claimant was partly responsible for that incident. Although the Presiding Officer held that such conduct on the part of the Claimant did not justify summary dismissal, in my view she was correct in holding that in the context of a claim for wrongful dismissal, dismissal was a reasonable option in the circumstances. This means that the Defendant was entitled to dismiss the Claimant but it has to pay him wages in lien of notice. The Defendant was therefore entitled to rely on a defence in Section 32K of the Employment Ordinance.

5. The Claimant said at the hearing for leave to appeal that the incident of 18 August 2001 was pre-planned by the Defendant and even before that, the Defendant wished to terminate his employment. These allegations have been considered by the Presiding Officer. It is a question of fact which the Presiding Officer made findings against the Claimant. For reasons already given, her findings cannot be challenged by way of appeal.

6. The Claimant's application for leave is therefore dismissed.