BAYUBAY, FELICULA BILLEDD v. RONALD WYLDBORE

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 44/87

(CLAIM NO. 2306/87)

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J U D G M E N T

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1. This is an appeal from a decision by a Presiding Officer in the Labour Tribunal. The respondent to this appeal was employed, at least until earlier this year, by the appellant as a domestic helper. The appellant terminated the contract between them on the 30th May this year, the termination of employment to take effect on the 1st June.

2. The respondent, thinking that she had been unfairly treated, applied to the Labour Tribunal for wages in lieu of notice and for a long service payment, to both of which payments she thought she was entitled.

3. After hearing both the respondent, the appellant and his wife, the Presiding Officer found that the appellant who, of course, was the defendant to the proceedings in the Labour Tribunal, had not made out a case for justifiable dismissal under section 9 of the Employment Ordinance.

4. There is substantial authority, which was reviewed and accepted by me in Labour Tribunal Appeal No. 12 of 1987, that it is for an employee to prove his or her dismissal was not for cause and that it is not for a defendant employer to make out a case. Mr Merry who appeared for the respondent suggested that, in these cases, the tactical burden in fact shifts to the employer. I am happy to accept that there is still room for argument on this point but I am equally happy that it is not necessary to consider the point for the purpose of this appeal.

5. As a result of the Presiding Officer's decision, the appellant now appeals to this Court on the ground that the Presiding Officer misdirected himself in holding that the dismissal was wrongful. I propounded earlier this year what I think to be the correct approach in these cases. That proposition is to be found in Labour Tribunal Appeal No. 12 of 1987. In that appeal I said this, after reviewing the law :-

"I must first, I think, consider the proper approach to cases of this nature. I hold it to be this. A presiding officed should make findings of fact as to whether the conduct complained of took place and if so, the circumstances in which that conduct occurred. As was put to me by way of illustration, there is, perhaps, a difference between an employee whose place is on a production line and whose late arrival, if only by a few minutes, will cause considerable disruption, compared with a clerk in an office who works semi-independently and whose late arrival in the morning will not have a commensurate disruptive effect. Having considered those matters, the presiding officer should then go on to consider whether the conduct amounted to a repudiation of the contract or flouted the essential contractual conditions."

That is the proposition I laid down and that is the proposition which counsel appearing before me in this appeal have accepted as correct.

6. In that same appeal, a few lines earlier, I said this :-

"The conduct which is relied upon by an employer for dismissing an employee may be a single incident, such as one wilful refusal to obey a lawful order, or it may be the cumulative effect of a series of incidents on the part of an employee. This is illustrated by Pepper v. Webb to which I have just referred and which might well be termed 'the last straw case'.

Pepper v. Webb was of course referred to in the course of argument this morning. Mr Westbrook who appears for the appellant based his argument upon the last straw approach.

7. The Presiding Officer, as far as I can see, really made no findings of fact in his notes for judgment. However, he did find the appellant and his wife to be truthful and honest whereas he specifically rejected the respondent's evidence on certain matters, albeit that those matters were not connected with the two awards which are the subject of these proceedings. I am satisfied, therefore, that the Presiding Officer necessarily found that the matters complained of by the appellant to have taken place.

8. Mr Merry who appeared for the respondent, tacitly accepted this and simply sought to show that these matters, that is the matters complained of, were trivial and not such as to justify dismissal.

9. After reviewing the evidence, the Presiding Officer said at page 18 :-

"On the whole of the evidence, it was not that claimant had persistently refused to obey a reasonable and lawful order. She did not fail to work but she carried on working although told not to to the annoyance of D.W.2." (D.W.2 of course was the appellant's wife.)

10. Mr Westbrook submits that this is a wrong approach to the law in these cases. He said that the Presiding Officer must have found that the conduct complained of by the appellant had occurred and that if the Presiding-Officer had properly directed himself, he would have found that that conduct fundamentally affected the contract between the parties. It would have been intolerable, he said, to have a domestic helper behave in such a manner.

11. On the question of the right approach to law, Mr Merry said that even if the Presiding Officer's approach cannot be shown to be clearly right, equally it cannot be shown to be clearly wrong. He suggested, rather tentatively, that by the use of the word "persistently", there might be indicated a cumulative effect or last straw approach by the Presiding Officer and that, said Mr Merry, would be consistent with the tenor of the Presiding Officer's findings that, overall, there was not sufficient to justify dismissal.

12. I find myself unable to accept that argument. The Presiding Officer has to consider whether the conduct, which he has found to have taken place, amounts to a repudiation of fundamental terms of the contract. I am unable to extract that approach from the use of the word "persistently" or indeed from anything else which was said by the Presiding Officer in his decision.

13. I find, therefore, that the Presiding Officer failed properly to direct himself on the correct approach.

14. Mr Merry then argued that the facts found, that is the evidence of the appellant and his wife, which the Presiding Officer clearly accepted, did not amount to a repudiation of the contract. For this purpose, he carefully analysed the various complaints which were made. At once, let me say that I accept that there is nothing in the complaints about the keeping of the dogs in the bathroom. Clearly, that was reasonable in the circumstances; that there is nothing in the apparent complaint that the respondent continued to work for somebody else, the evidence on that was inconclusive; and there is nothing in the complaint about the failure to sew a button on the appellant's shirt. As Mr Merry pointed out, it appeared on the appellant's wife's own evidence that at least some attempt was made by the respondent to find the offending shirt.

15. The other matters are, however, of much more substance. First, it is complained that the respondent was told to remain in the flat while the appellant and his wife were away for a short holiday and while workmen would be in the flat fitting out the kitchen. That, I am bound to say, was an obvious, sensible and necessary precaution on the part of the appellant. Unfortunately, upon the return of the appellant and his wife on the 13th April, they found the front door wide open, workmen in the kitchen, but no respondent to be found. True, the respondent returned about an hour later. I cannot, however, accept those circumstances as being anything but serious.

16. Secondly, it is clear that the respondent was asked to clean the bookshelves and to unpack and put books on those shelves while the appellant and his wife were away for a holiday for about two weeks at the end of April. This work had not been carried out when they returned on the 1st May. The work was however carried out on the 6th May albeit after an exchange between the appellant's wife and the respondent on the 5th of May. That conduct is perhaps less serious but still, in my view, unacceptable.

17. Thirdly, on the 6th of May, the respondent refused a direct order to cease work which consisted of cleaning kitchen utensils and which was still going on at 7:30 p.m. after the respondent had admittedly worked for a long and hard day. This led to a dispute later in the evening between the appellant's wife and the respondent in which the respondent was accidentally injured. As I indicated to Mr Merry during the course of his address, that seems to me to have been a wholly reasonable order in the circumstances and one which, to my mind, should have been obeyed with alacrity.

18. Fourthly, on the 8th of May, the appellant's wife agreed to take the respondent to the doctor after the respondent had complained about her eye, presumably her eye having been injured in the dispute two days before. When the time came to leave, the respondent said that she did not want to go to the doctor and carried on with her hoovering. The appellant's wife insisted that the respondent should go to the doctor so that the matter could be finally cleared up and told the respondent to stop hoovering. There was then, as it were, a tug of war between the two ladies with the hoover being switched on and off several times. Again, I find that to be a legitimate order in the circumstances and I note from the evidence that during the subsequent car journey, the appellant's wife warned the respondent of the possibility of dismissal.

19. Fifthly, on the 29th of May, (and I think there is no doubt that it did occur on the 29th of May because the appellant's wife appears to have corrected her evidence,) the appellant's wife saw that the respondent had control of the dog in the area surrounding the block of flats where they live but that the dog was not on the lead. That was contrary to the regulations applicable to the block of flats where the appellant and his wife live. It is a clear inference from the evidence that the appellant's wife warned the respondent about this and that the respondent agreed to put the dog on the lead and indeed did so. Regrettably, as the appellant's wife drove away, she saw the respondent let the dog off the lead once again. I find that to be a deliberate breach of a very necessary and reasonable order. I do not accept that that incident is a minor one as the Presiding Officer held nor do I accept, as Mr Merry suggested, that it could not amount to the last straw.

20. The following day, as I have already indicated, the respondent was dismissed by the appellant. There is no doubt in my mind that if the Presiding Officer had properly directed himself, he would inevitably have come to the conclusion that, taken together, these incidents showed that the respondent was flouting and flouting deliberately the essential conditions of a service contract, that is the proper carrying out of lawful and reasonable instructions.

21. Before I consider, therefore, the proper order which I should make, there are two other points which Mr Merry made and which are worthy of consideration.

22. First, he said that the dismissal of the respondent was not summary dismissal in the accepted sense because it was not instantaneous upon the incident of the dog being off the lead. As to that submission, section 9 of the Employment Ordinance permits an employer to terminate a contract without notice or without payment in lieu of notice if an employee acts in a certain way. There is no requirement in that section that the termination must be instant upon the behaviour or conduct which is complained of. In my judgment, it is enough if the time of dismissal is sufficiently proximate to the behaviour leading to the dismissal for the connection to be clear and still subsisting. To my mind, the connection was still clear and subsisting in this case. I do not attach any importance to the fact that the appellant did not at that time specify the precise reason for the dismissal.

23. Secondly, Mr Merry submitted that a defence of waiver might be available. He pointed out that the appellant's wife in her evidence agreed that it took 22 days after the incident on the 8th of May before she or her husband, the appellant, decided to dismiss the respondent. Mr Merry said that, in those circumstances, the contract had been affirmed and that the earlier conduct on the part of the respondent had been forgiven.

24. I would agree, however, with Mr Westbrook that waiver must be treated with caution in contracts for personal service. In my judgment in respect of such contracts, some clear indication of forgiveness is required. That a contract is simply allowed to continue for three weeks, perhaps out of consideration for the past and satisfactory service as it appears to be the case here, is simply not enough.

25. In Labour Tribunal Appeal No. 43 of 1986, Deputy Judge Evans said this :-

"At first blush, it appears harsh that dismissal can result from acts which were previously tolerated or even waived, but it must be that an employer be entitled to put an end to continuous and on-going breaches and not be precluded from doing so by earlier forbearances, otherwise an intolerable situation may well arise as a consequence of showing that tolerance and forbearance in the first place,"

26. While perhaps not agreeing with that as a wholly correct statement of law, nonetheless I agree with and accept the underlying sentiment.

27. In the circumstances, I allow the appeal and the judgment for wages in lieu of notice and for a long service payment will be set aside.