JOHN SIMPSON WARHAM v. CATHAY PACIFIC AIRWAYS LTD AND ANOTHER

CACV 349/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 349 OF 2003

(ON APPEAL FROM HCMP 4400/2001 AND HCA 2822/2002)

_______________________

HCMP 4400/2001

_______________

J U D G M E N T

_______________

Hon Rogers VP:

1. This is an appeal from a decision of Deputy Judge Gill given on 17 October 2003. The application before the Deputy Judge was an application to strike out the defence for non-compliance with an order of Deputy Judge Cheung, as he then was, which had been made on 15 April 2003. That had been a peremptory order to enforce an order of Mr Justice Sakhrani that the defendants should serve further and better particulars of their defence. It is now an amended defence. In the alternative, the plaintiffs had sought an order for further and better particulars of the further and better particulars which had been provided on 5 May 2003.

2. In short, the plaintiffs brought this action for wrongful termination of their contracts of employment without valid reasons and in contravention of the Employment Ordinance. In the amended statement of claim, reference is made, in paragraph 17(4), to the fact that an affidavit of Captain Kenneth Barley dated 29 October made on behalf of the defendants stated that in selecting aircrew for termination of their employment, consideration was given to those who (1) had an attendance problem, in the sense of having received warnings about absences from work, (2) had a warning letter on their file in respect of previous disciplinary action, and (3) were considered by crew control representatives to be unhelpful and unco-operative in the performance of their duties, and difficult to deal with both from a management perspective and in relations with other staff.

3. The amended defence, so far as it is relevant to this application, is contained in paragraph 7. That reads:

"7.	As to paragraph 7:
	(1)	On 3rd July, at the instigation of the HKAOA, members of the HKAOA commenced industrial action by the implementation of a policy called Maximum Safety Strategy.
	(2)	As a consequence of the threat and subsequent commencement of industrial action, the Defendants undertook an assessment of all aircrew officers.
	(3)	The assessment took the form of a review of the employment records of all aircrew officers by a team of individuals from CPA's Flight Operations meeting under the chairmanship of Captain Kenneth Barley.
	(4)	Mr Ron Davies was present at the meeting representing Veta.
	(5)	The purpose of the review of the employment histories of aircrew officers was to assess the individual attitudes of aircrew officers towards the aims, objectives and interests of the Defendants.
	(6)	In conducting the review of the employment histories of aircrew officers, the Defendants identified aircrew officers who:-
		(i) had an attendance problem; and/or
		(ii) had a warning letter on file in respect of previous disciplinary action; and/or
		(iii) were considered by crew control representatives to be unhelpful and unco-operative in the performance of their duties and difficult to deal with both from a management perspective and in their relations with other staff."

4. In effect, what was alleged in the defence is that the plaintiffs were dismissed on three months' notice, not because of their involvement in some industrial dispute, but because of one of those three reasons. On 1 April 2003, Justice Sakhrani made an order for various further and better particulars. The further and better particulars involved not only paragraph 7(6), but other subparagraphs at paragraph 7. In particular, under paragraph 7(3), the defendants were asked to state, (i) the number of aircrew officers whose employment records were reviewed; (ii) in the case of each plaintiff, the precise employment records referred to; (iii) the identities of individuals referred to, and (iv) whether the meeting referred to is a single meeting or a series of meetings and the date or dates of such meetings.

5. The answer to that, in respect of (i) , was all aircrew officers, and (ii) the plaintiffs' personal files were reviewed. And under (iii), a list of some 20 names were given of those who constituted the team of individuals, and under (iv), the review was said to have been undertaken on 5, 6 and 7 July 2001. It also should be mentioned that the particulars provided continued as follows.

"The Defendants give voluntarily particulars of the meeting and the method whereby individual officers were selected for termination of employment.

Each Officer's personal file including those of the Plaintiffs were reviewed and a meeting of 20 people was held to discuss the Officers' employment history. The objective of the meeting was to identify Officers who were considered not to be acting in the interests of the Defendants.

Information from the Officer's personal file was available to each member of the meeting at the meeting. The chairman of the meeting, Captain Kenneth Barley invited each member to discuss any aspect of an Officer's employment history concerning his attendance, previous disciplinary and grievance issues and whether an officer was considered helpful and co-operative to staff. Each member's contribution or opinion of a particular Officer was discussed and debated with all members of the meeting.

After a discussion of an Officer's employment history, the chairman of the meeting invited each member to resolve whether he considered an individual Officer was working in the interests of the Defendants and could be relied upon in the future to work for those interests. If a consensus decision was reached by all members of the meeting who had personal involvement and were able to give an opinion of a particular Officer's employment history, that he was not working and could not be relied on in the future to work for the Defendant's interests, that Officer was selected for termination of employment."

6. The further and better particulars which are directly involved in the present application are those given under paragraph 7(6). The request there was of the whole paragraph and in respect of each of the plaintiffs:

"State:

(1)	(i)	had an attendance problem, giving full particulars of the nature of such attendance problem in each case,
	(ii)	had a warning letter on the file in respect of previous disciplinary action identifying the letter and the file in each case, or
	(iii)	were considered by crew control representatives to be unhelpful and unco-operative in the performance of their duties and difficult to deal with.
(2)	In respect of the Plaintiffs within request 1(iii) above,
	(i)	identify the crew control representatives referred to in the case of each such Plaintiff, and
	(ii)	in respect of each such Plaintiff, give full particulars of the way in which they were considered unhelpful, unco-operative and difficult to deal with, and the alleged factual basis upon which such consideration was founded."

7. The answer which was given was "See the attached table" both in respect of the Request (1) and Request (2). There is in fact one attached table which is in two parts. The first relates to attendance problems. It is sufficient to say that in respect of each plaintiff, there seems to have been a review of his attendance over some 30 months, except in relation to one plaintiff for which the review was over 18 months.

8. In respect of each of the plaintiffs in those months, the number of occasions of days of absence was always in double figures. The number of days was anything ranging between 162 and 15. Many days of absence appear to have been taken over that period of 30 months on a number of occasions in respect of most of the plaintiffs. The chart then goes on to list the tendency to be sick for reserve duties, and ticks are given against a number of the plaintiffs. Then there is another column indicating a tendency to report sick at short notice. Then there is a column for those that have received the first letter noting absence from duty, those who have received a second letter and those who have failed to reply to a second letter. Then there is a column headed "Others" in which further details are given. For example, on one occasion somebody had missed duty on a particular day and on another occasion one of the plaintiffs apparently had been in Melbourne during two days off, whilst off duty in Hong Kong, and reported sick in Melbourne.

9. The table then goes on again to list as against each plaintiff the column headed "Warning letter of previous disciplinary action in personal file", and there were three instances of that. Then there is a heading, "Considered unhelpful and unco-operative to staff". In respect of two of the plaintiffs, the column is totally blank and, therefore, it is to be assumed that no allegation is made under that heading. In respect of some of the plaintiffs, specific particulars are given. For example, one of the plaintiffs was quoted as "Seen by management in airport when supposedly sick confined to bed around Christmas 2000". In respect of others, it is simply said, "Generally unco-operative".

10. Taken in conjunction with those further and better particulars are two affidavits which should be referred to. The first is an affidavit by Captain Kenneth Roland Barley. It is dated 29 October 2001. It was before Mr Justice Sakhrani when he made the original order and touches upon the question of the unco-operativeness of some of the plaintiffs. It gives examples of what is meant by that allegation. There is also an affidavit which was made on 2 September 2003 by Mr Zdenek Kroutel and there is specific reference that is directed more to the individual crew control section. I quote paragraph 8 of that:

"I have been told by the Defendants' legal advisers that the Plaintiffs' application to strike out the Defendants' Amended Defence is because the tables that we supplied do not identify individual Crew Control Officers who may have contributed information which may have later been discussed during the Flight Operations review team's meetings. For the reasons set out above, it would be difficult or impossible to provide that kind of detail. I would also query whether or not such information would be relevant because the background briefings undertaken prior to the Flight Operations Review team's meetings involved all the senior members of the Crew Control Section. Subsequently at the review team meetings, each team member was encouraged to express his views and any such views were considered in conjunction with the input gathered from the Crew Control Section. In each case, the decision to terminate the employment was made by the team, taking into consideration all relevant factors and not only the information obtained from Crew Control."

11. One thing that is clear from both the voluntary particulars that were provided and from the two affidavits is that the decision to terminate was a committee decision. The manner in which the decisions were arrived at was a committee decision taken in the way that is alleged in paragraph 8 of Mr Kroutel's affidavit.

12. The judge below the dismissed the plaintiffs' application to strike out, and in paragraph 18, he said:

"18. I have gone into the background of this application in some detail because at the end of the day how I rule upon it is the exercise of discretion which is wide as long as I properly pay heed to the issues and the circumstances of the case with due regard to the interests of justice.

19. I have to say at the outset that given the circumstances there is no way I would find the plaintiffs entitled to the striking out and entry of judgment that is the primary application. This is not a case where there is a wilful, intentional failure to comply with the court's order. There was a response within time and it was a comprehensive one, which may have caused the delay in filing. If I am to find that one or two of the requests had not been covered as they should have been that would result in an order for compliance with time in which to do so."

13. But further on, in paragraph 21, the judge went on:

"21. I repeat for emphasis - "...at the core is service to justice." It would in my view be a travesty to banish the defendants from the proceedings on the strength of the omissions complained of.

22. But given the response that has been forthcoming, including the expansion at v (paragraph 10 herein) the spread sheets attached and Mr Kroutel's evidence, I am satisfied that there has been compliance; sufficient at any rate to satisfy the three criteria spelt out by Mr Justice Sakhrani in the excerpt from his judgment, which I have reproduced."

14. What Mr Justice Sakhrani has said is that the plaintiffs have to know what the case is that they have to meet.

15. The nub of the complaint, as articulated by Mr Bell on this application is that first, the further and better particulars which were provided, did not provide the further and better particulars which were requested under paragraph 2(2)(i) in that the crew control representatives referred to in the case of each plaintiff were not identified, and secondly, that there were no particulars or there were unhelpful particulars in relation to the allegations of "unhelpful, unco-operative and difficult to deal with" in respect of the crew members.

16. In respect of the first point, "the identity of the crew control representatives," I consider that Mr Kroutel's affidavit and the other particulars which have been provided, show the way in which the plaintiffs allege that the decisions were arrived at, and those particulars and the particulars which have been given are sufficient particulars. I do not consider that it is possible to give any further particulars of what each particular crew control representative said. It was a committee decision. That is the allegation, and that is the allegation that will go to trial.

17. In respect of the other matter, the question of "unhelpful, unco-operative and difficult to deal with", being unco-operative is a matter of attitude. If there are specific instances, then they should be identified. But if it is a question of attitude, further elaboration by particulars is not possible. It is a question of the evidence at trial and whether the judge believes that evidence.

18. What the judge below was saying in his judgment was that there had been compliance with the order, and that was sufficient for the proper conduct of this action. No doubt he had in mind that there would also be witness statements, but the judge below considered that the particulars that were given were sufficient and that the parties should get on with the action. That is a matter of case management and in my view his decision should be given respect unless it was clearly wrong.

19. For the reasons which I have sought to elaborate, I consider that the particulars which have been given are sufficient and the parties should now progress to trial as soon as possible. There is obviously a great deal more to be done. We have just been informed that there has been no summons for directions yet and that should obviously take place fairly soon.

Hon Le Pichon JA:

21. I agree.