FAN KAM FUNG AND OTHERS v. SONLEY HANDBAGS MANUFACTORY

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 6 OF 1984

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J U D G M E N T

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1. This is an appeal from a decision of the Presiding officer of the Labour Tribunal given on the 13th February of this year, whereby he dismissed claims brought by six employees on the basis that they had been constructively dismissed. The basis of the claim was said to have been a failure in substance by the employer to comply with his obligations under section 31E of the Employment Ordinance. The claim was rejected upon the basis that they had not been constructively dismissed by reason of lay-off.

2. Now certain underlying facts are not in issue. The relevant four-week period for this purpose is the period starting with Tuesday, the 8th February to Monday the 7th March of 1983. The facts are these: All the claimants worked on 8th and 9th February. They did not in fact work again at all. They were told on 9th February by a notice posted by the Management that the Lunar New Year Holidays were to commence the next day, the 10th February and that they should return to work on 1st March. They, in fact, tried to return to work on 1st March and found no work for them. Likewise they then came back on 7th March. On the findings of the Presiding Officer there was then no work. They claimed compensation in the events that happened and that claim was refused. It is that refusal, plus the failure to provide work, which is relied upon as the constructive dismissal.

3. Now the days count between the 8th February and 7th March goes something like this. There were in that period four Sundays which are rest days and holidays and do not count in any event. Likewise there were three statutory holidays of the Lunar New Year namely the 12th, 14th and 15th of February. Apart from that there were in February a total of 13 days which would have been normal working days that is the 10th, 11th, 16th, 17th, 18th, 19th, 21st, 22nd, 23rd, 24th, 25th, 26th and 28th of February. That is the total of 13 days. Then starting in March you get 1st, 2nd, 3rd, 4th, 5th and 7th: Now the Presiding Officer found as a fact that no work was provided for them on those 6 days in March. But he rejected the contention that no work had been provided during the 13 days, the 13 "working" days in February, upon the basis that that was the period of their Lunar New Year holiday and that the defendant was not under any obligation to provide them with work during that whole period.

4. Now I regret to say that I am unable to accept that conclusion certainly over the whole period. The obligation of the employer under section 31E, if he is to avoid a deemed lay-off position seems to me to be capable of being summarised in this way. In any period of four consecutive weeks, he has to provide either a total of 12 normal working days or payment in lieu. I reach that conclusion because of the form of the section where you get the words "where the employer does not provide such work for him on at least 12 normal working days in any period of four consecutive weeks and whereby he is not entitled to any remuneration under the contract for such period". As I see it the intent of the section is that the person is to have 12 working days or payment in lieu. There is no way that I can see that by some unilateral declaration ( which is what this notice was) the employer can reduce his obligations under that section or unilaterally grant additional holidays to his employees which reduces his obligation under this section.

5. Now the only way in which that obligation can be reduced under this section is by reading into the time period in this case, the claimants' annual leave entitlement. I have myself grave doubts as to whether that is proper on the facts for two reasons. First because no attempt was made by the employer to satisfy section 41A(2) of the Ordinance. 14 days notice was not given, indeed there is no more than 24 hours notice given. But assuming it is his favour that that was all waived by the employees (a matter which was no way investigated in the court below) I think perhaps the more substantial breach of obligation is that in section 41B. Because if this was annual leave, paid leave, it seems to me that those sums should have been tendered to these employees on their return on 7th March. It was not and it may well that if it had been, this matter would have reached any court at all.

6. In those circumstances and I have the gravest doubts where it is open to the employer to advance this contention at all in support of this finding.

7. Secondly it does not seem to me to work. Because if my construction of section 31E is right, during the relevant four week period only tow normal working day's work was in fact provided. If you add on the notional 7 days annual pay that produces a total of 9.And that still does not discharge the obligation under section 31E. I should add in this case no additional notional sums can be added in respect of the statutory holidays because the ladies being piece workers did not qualify for any pay on those days. In this respect other employees may be in a different position.

8. It therefore seems to me that there was a failure by this employer to fulfil his obligations under section 31E and that he failed during this relevant four week period either to provide 12 normal working days' work or money in lieu, paid leave in lieu. I am therefore unable to accept the Presiding Officer's findings in this matter as valid, and in my judgment this claim was in fact made out by all six claimants. The 6th claimant has apparently not pursued with her appeal but it seems to me that this appeal must be allowed in respect of five claimants that have. In those circumstance I should enter judgment for the appropriate sums for 7 days pay in lieu of notice.

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