SAMPAYAN, MARICEL AMIGO v. HO HANG SHEUNG

1998 No. ME6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS NO. HCME 6 OF 1998

(On appeal from Minor Employment Claims MB202 of 1998)

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J U D G M E N T

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1. This is an appeal by the employer Ho Hang Sheung against the decision of the adjudicating officer of the Minor Employment Claims Adjudication Board granting judgment in favour of the employee Sampayan, Maricel Amigo, in the sum of $4,160.00 make up of $3,860.00 as wages in lieu of notice, $100 as bus fare to place of origin and $200 costs.

2. There was no dispute that the employee was employed by the employer on 11.12.1997 under a standard employment contract and the employment was terminated on 22.12.1997.

3. The employee alleged that she was unjustifiably dismissed. The employer claimed that the employee was dismissed as she had wilfully disobeyed a lawful and reasonable order and had misconduct herself such conduct being inconsistent with the due and faithful discharge of her duties.

4. In her evidence, the employee said having worked for the employer for about 10 days, on the 21.12.1997, she was informed by the employer that her contract would be terminated on 21.1.1998. She was not given any reason for the dismissal. Instead, she was asked to sign a letter containing the reasons for the dismissal. The employee refused to sign such letter, as she did not agree with those reasons.

5. On 22.12.1997, the employee continued her routine work, having had a word with the employment agent. She also talked to a friend of hers. Later in the evening when the employer returned home from work, she had a discussion with her husband and then decided to terminate the employment at once. She told the employee to pack up and go.

6. The employer however, alleged that having been told that the employment would be terminated in a month's time, the employee refused to do any work and asked to be allowed to leave at once.

7. The employer was not at home on 22.12.1997 and it was her husband who dealt with the employee. According to the husband, the employee's performance was not entirely satisfactory. She would stop work in order to talk to a friend who came to visit her. The husband also suggested the employee insisted to have the employment terminated at once. She also refused to do any work. But he agreed that having been explained to by the employment agent, the employee started to work.

8. The watchman of the building confirmed that the husband had complained to him about the employee being lazy. The employer's daughter also complained that the employee did not prepare the breakfast and did not help her to bring her school bag. She also confirmed that the employee had refused to do the household work at some stage. She however agreed that the employee had vacuum cleaned the floor in the afternoon.

9. Having considered the evidence presented by both sides and having heard their final submission, the adjudicating officer concluded that there was insufficient grounds for the employer to summarily dismiss the employee and hence he made the award in favour of the employee.

10. The employer in this appeal repeated the suggestion that having been given one month's notice of termination, the employee spent a lot of time contacting her friends and only agreed to resume working after the employment agent had explained to her the content of the dismissal letter. Instead of continuing with the vacuum cleaning work as ordered by the husband, the employee insisted to go out to talk to her friend. The employee also refused to do the work in the afternoon until she was explained to by the employment agent.

11. The employer also complained that the adjudicating officer had not recorded the testimony truthfully and had distorted the evidence of some of the witnesses. There was also the suggestion that the trial had not been conducted fairly.

12. Section 16 of the Minor Employment Claims Adjudication Board provides that the Board shall keep a summary of the evidence, submissions or statements made or given at the hearing. The record kept by the Board is the official record and in the normal course of event must be relied on for the purpose of any appeal.

13. In the present case, I am not persuaded to go beyond the summary of the evidence, submissions and statements kept by the adjudicating officer.

14. In considering whether the employee had been guilty of wilful disobedience of order and/or misconduct, it was perhaps relevant to take into consideration the rather difficult position that the employee found herself in. She had been in Hong Kong for just 10 days and she found herself being dismissed. Obviously she was not fully aware of the implication of such dismissal and its consequences and hence she needed to be explained to by the immigration officer as well as the employment agent.

15. It is perhaps not difficult to appreciate that her performance on 22.12.1997 may not be entirely satisfactory given the strain relationship between the employer and the employee. But according to the husband, the employee did carry out certain work that day.

16. Summary dismissal of an employee is a very drastic step to take and is only justified in very exceptional circumstances. There were materials upon which the adjudicating officer could conclude as he did that there were insufficient grounds for a summary dismissal.

17. Any party who is aggrieved by a decision of the Board can only appeal to the Court of First Instance on a ground involving a question of law alone.

18. I have considered carefully the background of the case and everything put forward by the employer. I am not persuaded on the facts as found by the adjudicating officer that he had come to a wrong decision. There is no point of law involved in this appeal to justify any intervention by the court.

19. In the circumstances, the appeal had to be dismissed and I so order.

20. As both parties were not legally represented, I make no order as to costs.

(W. Yeung)

Judge of the Court of First Instance
High Court