林進傑 v. 教育局局長

HCAL 1275/2022

[2023] HKCFI 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1275 OF 2022

________________________

________________________

______________

D E C I S I O N

______________

A.  Introduction

1.  The Applicant was employed as a Project Administration Officer by the Education Bureau on a one-year contract basis, with a term running from June 2022 to June 2023.  But the Applicant resigned on 18 August 2022 before the contract had run its term.  By a Form 86 dated 16 November 2022, the Applicant seeks leave to apply for judicial review of a matter connected to his resignation.

2.  Having considered the materials before the Court, I am of the view that this application could be disposed of on paper.

3.  Further, though I note that the Applicant has made an application for Legal Aid, triggering the usual statutory 42-day stay from 21 November 2022, that would expire on 3 January 2023).  In any event, in this case I would see no reason to await the outcome of the application, and I do not think the Applicant would be prejudiced if the stay had been lifted, which I would have done.

B.  Background Facts

4.  The Applicant complains that his direct supervisor shouted or yelled at him on 15 August 2022.  He complained about the incident to the relevant officer-in-charge/Section Head on 17 August 2022. On 18 August 2022, the Section Head said he had talked to the direct supervisor who denied having shouted at the Applicant.  The Section Head refused to enquire with other colleagues sitting around the Applicant to see if the shouting did happen and advised the Applicant to monitor the situation for a while first.

5.  The Applicant was not satisfied with the Section Head’s handling of his complaint.  On the same day, namely by email dated 18 August 2022 (with a separate attachment in the same terms), he tendered his resignation with immediate effect.  In the resignation notice, he said (sic):

I am writing to resign from the position of PAO(SIM)2 in the Bureau.

My last date of employment would be August 18 2022.

Please be noted that the reason triggering my captioned resignation is due to the ‘yelling’ occurred this Monday and the failure of letting you know the consequences caused by that ‘yelling’ at me.

I therefore wish to point out that because of the above reasons, I am quitting because this Bureau can no longer discharge the duty of care to me that I can work in the Bureau free from the fear of being yelled at again.  Payment in lieu of notice does not apply.

6.  After resignation, he took the complaint further up in the Government.  After making enquiry with the Section Head, the direct supervisor and those sitting around the Applicant, the Education Bureau concluded that there was no evidence that the direct supervisor did shout at the Applicant on 15 August 2022.

7.  On 2 September 2022, the Applicant received a demand note from the Education Bureau, requesting payment of one month’s salary in lieu of notice.  The Applicant refused to pay and insisted that he was entitled to quit without giving notice or making payment in lieu.

C.  Grounds of Review and Relief Sought

8.  In his Form 86, the Applicant identified the ‘decision’ in respect of which relief is sought as being the bill sent to him on 1 September 2022, asking him to make a payment in lieu of notice equal to one month’s salary.  The relief sought is (in translation from the original Chinese used in the Form 86):

(a)  Rule that my supervisor at the time of my employment had shouted at me on 15/8/2022

(b)  Rule that the approach in which the officer-in-charge of my unit handled my complaint was unreasonable

(c)  rule that in the employment contract offered to me by the Education Bureau on 31/5/2022, I may, under S10(c) of the Employment Ordinance, employees have the right to terminate the contract without notice under the common law for certain reasons

(d)  Rule that the decision made by the Education Bureau for me to make a payment in lieu of notice was unreasonable

(e)  Quash the Education Bureau’s decision for me to make payment in lieu of notice

(f)  compensate for expenses incurred due to the need for me to engage in a judicial review (to be assessed)

9.  The proposed grounds he set out in the Form 86 are that the staff members of the Education Bureau lied and falsely claimed that the Applicant was not shouted at and that his complaint was not handled properly.

D.  Amenability to Judicial Review

10.  From the relief and the proposed grounds set out by the Applicant, it seems that three issues are central from his perspective, namely: (1) whether he was shouted/yelled at by his direct supervisor on 15 August 2022; (2) whether his complaint against the direct supervisor was properly handled; and (3) whether he was entitled to rely on section 10(c) of the Employment Ordinance Cap 57 (“EO”) to resign without giving any notice period or making payment in lieu.

11.  Ultimately the first and the second issue must be viewed as subsidiary to the third issue concerning his resignation entitlement, because the Applicant’s case is that the fact that he was shouted at by his direct supervisor and that the Section Head failed to address his complaint properly would entitle him to resign without giving notice or a payment in lieu, under section 10(c) of the EO.  That subsection aims to preserve an employee’s entitlements which are imposed by the common law onto an employment relationship, and provides:

An employee may terminate his contract without notice or payment in lieu on any other ground on which he would be entitled to terminate the contract without notice at common law.

12.  Hence, it is plain that the true nature of the Applicant’s case is an employment dispute – namely his common law entitlements in his employment relationship with the Education Bureau.  This is an example of a private law matter which should not be resolved by the Court’s judicial review machinery, and the kind of complaint that is not amenable to judicial review.

13.  The Applicant was plainly aware of the amenability issue.  In his supporting affirmation, the Applicant relied on §§134-135 of my recent decision in Tong Wai Yee Winnie v Secretary for Education and Another [2022] HKCFI 1402, to say that employment matters are not automatically immune from judicial review. That proposition is correct, but it seems to me that, in this case, the thrust of the Applicant’s claim is clearly based on an alleged breach of private law duties.  The allegation is that the Education Bureau as employer has failed to discharge its duty owed as an employer to the Applicant employee which would entitle the Applicant to resign without giving notice under the common law. The Applicant has not claimed that the Education Bureau has breached any duties of a public law nature.  Nor do I find any public law elements in this case.

14.  Applying the settled principles, this case seeks to raise a private law matter not amenable to judicial review.

E.  Conclusion

15.  The Application is dismissed with no order as to costs.