LIFE YOUNG MEDICAL GROUP LTD FORMERLY KNOWN AS LIFE YOUNG AESTHETIC MEDICAL LTD v. CHIU SUET MAN

HCLA 4/2023
and HCLA 5/2023

(Heard together)

[2024] HKCFI 3728

HCLA 4/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 4 OF 2023

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 546 OF 2022)

_______________________

_______________________

AND

HCLA 5/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 5 OF 2023

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 590 OF 2022)

_______________________

_______________________

(Heard together)

________________________

JUDGMENT

________________________

INTRODUCTION

1.  Ms Chiu Suet Man (“Chiu”) was employed by Life Young Medical Group Ltd (“the company”) as Centre Manager at a monthly salary of $51,500. The employment started in May 2021. It was an express term of the contract that either party could terminate the employment by giving one month’s notice or paying one month’s salary in lieu. The employment came to an end in February 2022.

2.  A dispute arose as to whether Chiu resigned and terminated the employment contract with immediate effect by an email which she sent to the company on 15 February 2022, without giving the requisite notice or making the payment in lieu.

3.  The company took the view that she did. By an email dated 17 February 2022, it asked Chiu to pay one month’s salary as payment in lieu.

4.  Chiu’s position was that by her email of 15 February and another email sent two days later on 17 February, she was giving her one-month notice to resign and her last day of employment would be 14 March. The company was therefore wrong when it requested that she make the payment in lieu.

5.  Both parties brought claims in the Labour Tribunal to seek the sum of $51,500 as payment in lieu. (Other claims were made but were subsequently settled.) The two respective claims are LBTC 546/2022 and LBTC 590/2022. They were tried together before Ms Jennifer Ng, Deputy Presiding Officer. The trial lasted for three days. The presiding officer delivered judgment on 7 November 2022. She found in favour of Chiu in both claims and awarded the sum of $51,500 to her.

6.  The company sought a review of the decisions. On 6 January 2023, the presiding officer dismissed the applications for review.

7.  On 21 March 2023, I granted leave to the company to appeal against the review decisions.

8.  This is my judgment on the appeals of the company. The presiding officer gave written decisions for the trial and the review. I shall refer to them as “the trial judgment” and “the review judgment”.

9.  In these appeals, the company is represented by Ms Queenie Lau and Mr Ian Yu. Chiu is represented by Mr Tommy Cheung.

THE FACTUAL BACKGROUND

10.  The material events took place on 15, 16 and 17 February 2022.

15 February 2022

11.  Chiu’s husband, Chan, worked at the company as chief executive officer. In a meeting on 15 February, the company terminated his employment. Chiu later joined the meeting and indicated that she would leave the company with Chan. The meeting ended at about 8.30 in the evening.

12.  At the trial, Chiu testified that during (and after) the meeting, while she was still at the office, she orally requested that the company waive her notice period. In fact, she made the request a number of times. The company replied at that time that it would get back to her. This was denied by the company at the trial. The company’s witness, Yeung, alleged that she only heard the request for the first time later that night through a WhatsApp message. The presiding officer preferred Chiu’s evidence to the company’s and found that Chiu did make the waiver request at the office.

13.  At around 10.38 pm, Chiu sent an email to the company. This is the email referred to in the “Introduction” section above and is a key document in these appeals. I shall call it “the 15 February email” below. The contents read:

“ 如前所說，本人特此提出辭呈，自2022年2月15日起立即生效 。

我會要求我們雙方同意立即終止我的僱傭關係，恕不另行通知。

請感謝李先生有機會為Life Young工作。但是，由於個人原因，我很難繼續下去。我真的需要時間好好休息一下，重新思考一下。希望你能理解。”

14.  Shortly after the email was sent, Chiu exited a number of WhatsApp groups relating to the company’s business. Included in the evidence are screenshots of WhatsApp messages showing the names of these groups – “Life-young”, “Lifeyoung Thailand”, “中環雪廠街設計及工程項目” and “Life-Young and Chatter”.

15.  Later that night, Chiu and Yeung exchanged the following messages on WhatsApp. Chiu reiterated her request to have the notice period waived:

“ Chiu: [*] send左E-mail比你

請明天回覆我

最好好來好去

…

Yeung: [Reply to message marked *] 明天可能未能覆你

…

Chiu: 我已經Email Resign啦大家好來好去，大家雙方協議唔需要俾通知期

Chiu: [Reply to message marked *] 明天回覆我啦”

16 February 2022

16.  On the following day, 16 February, Chiu did not turn up for work at the office.

17.  That evening, she sent an email to the company entitled “Final Payment for Yuki, Chiu Suet Man.” She attached a spreadsheet setting out the calculations for payments due to her. She wrote at the top of the spreadsheet:

“ Mutually agree to terminate employment on 15^th February 2022 without notice by either party. Email sent to Charlie on 15^th February.”

17 February 2022

18.  The following day, Chiu again did not attend the office for work.

19.  She sent two emails to the company in the afternoon. In the first email, she stated that she had not yet received a reply to her waiver request and therefore she assumed that she was still being employed by the company. She requested a response. In the second email sent about half an hour later, she stated that her resignation took effect from 15 February and her last day would be 14 March. Once again, she reiterated her waiver request and said that she was waiting for the company’s clarification.

20.  The first email was sent at about 3.55 pm. Chiu wrote:

“ 由於您沒有回复我的建議在15/2/2022，即在無需任何一方通知的情況下相互同意終止我的工作，我假設我仍然受僱於Life Young。請盡快告知您的方向。

…

在此期間，我在2022年2月16日和17日這兩天在家工作。…”

21.  The second email was sent at about 4.21 pm. She wrote:

“ 此外，我的辭職將自2022年2月15日起生效，我的最後一天工作將是2022年3月14日。

如果您希望雙方同意立即終止而無需僱主和僱員的通知，或者您希望我在整個通知期內繼續出勤，我等待您的澄清。”

22.  There was no reply to her two emails. Instead, the company sent her an email at about 6.26 pm. It was entitled “追討補償”. It was a short email. I shall call it “the company’s 17 February email” below. It referred to Chiu’s 15 February email and then stated that the company now sought compensation under clause 10(i) of the employment contract. Clause 10(i) is the clause which provided for termination upon one month’s notice or payment in lieu.

The parties’ stances at the trial

23.  Chiu’s stance at the trial was that by her 15 February email, she was tendering a notice of resignation. She was not terminating the employment contract with immediate effect. In fact, she had prior to the email, and also in the email itself, requested the company to consider waiving the notice period. On the following two days, she kept waiting for a reply from the company. Eventually, on 17 February, as there was no reply, she confirmed by email that she would serve out her notice period, with the resignation taking effect on 15 February. It was therefore wrong for the company to demand her to make payment in lieu in its 17 February email.

24.  On the other hand, the company’s stance was that Chiu sent out the 15 February email saying that she was resigning and then she exited the WhatsApp work groups and failed to turn up for work at the office on the following day and sent out some final calculations. In these circumstances, the company took it that Chiu was terminating the employment immediately. Hence, it sent out the 17 February email asking for payment in lieu.

THE DECISION OF THE PRESIDING OFFICER

25.  The presiding officer identified three issues which needed to be determined: see para 17 of the trial judgment. They primarily revolved around the 15 February email.

(a)  Was the email a resignation notice which terminated the employment immediately, without the requisite notice period?

(b)  Or was it a resignation notice which took effect from 15 February, with the question of whether the notice period would be waived to be confirmed by the company? As no waiver was forthcoming, was Chiu’s second email on 17 February a valid termination notice, with the last day of employment being 14 March?

(c)  Did the company improperly dismiss Chiu by its 17 February email?

26.  There was one major factual dispute on which the parties gave opposite evidence at the trial. And that was whether Chiu had made the waiver request at the office on 15 February. The presiding officer found in favour of Chiu: paras 25 and 40 of the trial judgment. On this factual dispute, she spelt out her reasoning in paras 26 to 39.

27.  It is worth highlighting here that she paid particular attention to the wording used in the 15 February email and the WhatsApp messages on the same day:

(a)  She noted the use of the words “如前所說” in the 15 February email. This should mean that something had been discussed before. She also noted that the email included the request for waiver of the notice period (“我會要求我們雙方同意立即終止我的僱傭關係”) and that was different from the usual termination letter where the termination was intended to take effect immediately. This corroborated Chiu’s evidence that the waiver had been raised orally before: para 26.

(b)  She took the view that an employee usually would choose to serve out the notice period instead of making payment in lieu, unless he had a job offer which could not wait. Here, if the parties could agree on the waiver, that would be a good arrangement and this accorded with what Chiu said on WhatsApp, “好來好去”: para 27.

28.  The presiding officer’s factual findings and rulings are set out in paras 40 to 42 of the trial judgment. I reproduce them below:

“ 40. … 本席作出事實裁決，申索人於2月15日公司裡，曾經向梅先生及李先生提及雙方考慮放棄通知期，他們表示會回覆她；及申索人沒有收拾一切所有私人物品決定離開公司，也未有表明2月16日不再繼續上班。

41. 本席作出事實裁決申索人向公司發 “辭職電郵” 提出辭呈，生效日期由2022年2月15日起計，有待公司回覆雙方放棄通知期一事。無疑申索人在等待被告的回覆期間可能採取了錯誤的一步沒有於2月16日返回工作崗位，但這不會改變她仍然有權以通知期方式或代通知金之間作出選擇的事實 。

42. 本席亦裁定申索人已經於2月17日16時21分的電郵向公司發出辭職通知取代 “辭職電郵”，給予一個月通知期，最後工作日期為3月14日。因此公司於2月17號所發出的電郵追討申索人代通知金是不當地終止合約 …”

29.  In gist, the factual finding was that both during and after the meeting on 15 February, Chiu did make the request for waiver and the company at that time said it would give her a reply later. Chiu then sent the 15 February email to give notice of her resignation, which notice took effect from that day, but the actual notice would be pending the company’s reply as to whether it would waive the notice period. Further, Chiu’s second email on 17 February replaced the 15 February email. By the former, she gave her one month notice, counting from 15 February.

30.  The presiding officer acknowledged that while Chiu was waiting for a reply, her failure to return to work on 16 and 17 February was wrong. (In the trial judgment, she said that that “might” be wrong (“可能採取了錯誤的一步”). However, in her review judgment, she stated unequivocally that what Chiu did was not proper (“不恰當”) although she noted that authorities suggest that two days’ of absence from work should not warrant summary dismissal: see para 12 of the review judgment.) But the fact that Chiu was wrong in not attending work would not alter her right to choose between serving her notice period and making payment in lieu.

31.  In these circumstances, the presiding officer ruled that the company’s 17 February email amounted to improper termination of the employment. This ruling should also be read in conjunction with an earlier remark of the presiding officer at para 38:

“ 當僱員辭職時，僱員有權選擇給予合約規定的通知期或支付代通知金，而不需要僱主的同意。本席認為公司並沒有考慮到當申索人辭職時，她享有這選擇權。”

THE GROUNDS OF APPEAL

32.  The company has three grounds of appeal.

33.  First, the presiding officer erred in failing to hold that as a matter of construction and applying an objective and contextual approach, the 15 February email validly terminated the employment contract with immediate effect. She further erred in failing to hold that once Chiu sent that email, as a matter of law she was not entitled to unilaterally withdraw the same and to rely on a subsequent email to give one month’s notice.

34.  Second, the presiding officer ought to have held that an implied resignation took effect by the words and conduct of Chiu.

35.  Third, the presiding officer erred in holding that the company had wrongfully terminated the contract by its 17 February email. She ought to have held that as a matter of construction, the company did not seek to terminate the contract and merely sought to carry out the 15 February email.

LEGAL PRINCIPLES ON APPEAL FROM THE LABOUR TRIBUNAL

36.  An appeal from a decision made by the Labour Tribunal is limited to where the decision is erroneous in point of law or is outside the jurisdiction of the tribunal: see section 32 of the Labour Tribunal Ordinance, Cap 25.

37.  Under its three grounds of appeal, the company is in substance appealing against the tribunal’s determination on how the 15 February email should be interpreted.

38.  It is important to identify at the outset whether that determination is one of law, one of fact or one of mixed law and fact. The answer will dictate how I should approach the appeals.

The two rival approaches

39.  Ms Lau submits that the process of construction is a mixed question of law and fact and as such it is open to me to examine whether the presiding officer has committed any error in its construction of the 15 February email and the surrounding circumstances. She relies on paras 10 and 11 of the decision in Lam Chun Choi v Standard Chartered Bank (Hong Kong) Ltd HCLA 15/2015, 29 February 2016. Those paragraphs in turn referred to passages in an old edition of Chitty on Contracts. The equivalent passages are to be found in para 16-050 in the latest edition of Chitty (35^th ed).

40.  On the other hand, Mr Cheung submits that the construction of the 15 February email was a highly fact-sensitive exercise, which the tribunal undertook in a three-day trial. On that basis, the court can only intervene in very limited circumstances, as explained in Kwong Mile Services Ltd v Commissioner of Inland Revenue (2004) 7 HKCFAR 275 at para 37, which was applied in the context of an appeal from the Labour Tribunal in Chen Henry v William E Connor & Associates Ltd HCLA 51/2006, 14 May 2007 at para 18.

41.  The principles are as follows. The appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the tribunal’s conclusion is a reasonable one, the court cannot disturb that conclusion even if its own preference is for a contrary conclusion. If it considers the contrary conclusion as the true and only reasonable one to reach on the facts, the appellate court is duty-bound to substitute the contrary conclusion for the one reached by the tribunal.

Notices given in the employment context are interpreted in accordance with contractual principles

42.  The 15 February email is not a contract. It is, however, common ground that its construction requires an objective and contextual assessment, which is the same or analogous to contractual interpretation. This is well supported by the authorities: Willoughby v CF Capital plc [2012] ICR 1038 at paras 26 and 37; Harry Greenhouse v Paysafe Financial Services Ltd [2018] EWHC 3296 (Comm) at para 18; Mr R Omar v Epping Forest District Citizens Advice [2023] EAT 132 at para 97(3).

43.  The analogy was explained by Rimer LJ in Willoughby:

“ Second, employment law is, at least in large part, a branch of contract law. The principles of contract law ordinarily require that a person’s intentions are ascertained not by reference to his subjective intentions but objectively, by reference to how a reasonable man would interpret them. His intentions will therefore be ascertained by reference to a consideration of the words used, whether written or oral, in the context in which he used them.” (para 26)

“ The ‘rule’ is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms.” (para 37)

Construction of documents is a question of law: the rule and its scope

44.  In the context of contracts, it is well-established that the construction of written documents is a question of mixed law and fact. There are two parts to the construction exercise. Chitty explains at para 16-050:

“ The construction of written instruments is a question of mixed law and fact. The expression “construction” as applied to a document includes two things, first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. Construction becomes a question of law as soon as the true meaning of the words in which an instrument has been expressed and the surrounding circumstances, if any, have been ascertained as facts.”

45.  It is worth reminding ourselves the historical origin why the second part of the construction exercise is treated as a question of law. This can be traced back to medieval times when juries were often illiterate and could not therefore interpret written contracts (but they could interpret oral ones). Hence, the issue of interpretation of written instruments would not be submitted to the jury for determination and would be reserved to the judge. It therefore became a question of law.

46.  On this, I refer to the judgment of Lord Hoffmann in Carmichael v National Power plc [1999] 1 WLR 2042 at 2048D-2049A in which his lordship discussed “the troublesome distinction between questions of fact and questions of law”. (This case was not cited by counsel but is listed in footnotes 254 and 261 in the Chitty extracts submitted by Ms Lau):

“ … the rule was adopted in trials by jury for purely pragmatic reasons. In mediaeval times juries were illiterate and most of the documents which came before a jury were deeds drafted by lawyers. In the 18^th and 19^th centuries the rule was maintained because it was essential to the development of English commercial law. There could have been no precedent and no certainty in the construction of standard commercial documents if questions of construction had been left in each case to a jury which gave no reasons for its decision. Thus the rule that the construction of documents is a question of law was well established when industrial tribunals were created and has been carried over into employment law.”

47.  It has been recognised that this rule may be regarded as anomalous but is too entrenched in our legal system to be changed. In Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724, Lord Diplock said, at 736E-F:

“ A lawyer nurtured in a jurisdiction that did not owe its origin to the common law of England would not regard it as a question of law at all. … Nevertheless, despite the disappearance of juries, literate or illiterate, in civil cases in England, it is far too late to change the technical classification of the ascertainment of the meaning of a written contract between private parties as being “a question of law” for the purposes of judicial review of awards of arbitrators or decisions of administrative tribunals from which an appeal to a court of justice is restricted by statute to an appeal upon a question of law.”

48.  Bearing in mind the historical origin of the rule, one should recognise the limit of its application. Where the terms of the contract are not wholly contained in a written document, the rule does not apply. The limitation is spelt out in Chitty at para 16-051 as follows:

“ Where the contract is oral or does not depend solely on written documents, the question as to the character of the contract and the identification of the terms of the contract is properly one of fact.”

49.  In Carmichael, Lord Hoffmann explained when the rule applies and when it does not, at 2049B-C:

“ It applies in cases in which the parties intend all the terms of their contract (apart from any implied by law) to be contained in a document or documents. On the other hand, it does not apply when the intention of the parties, objectively ascertained, has to be gathered partly from documents but also from oral exchanges and conduct. In the latter case, the terms of the contract are a question of fact. And of course the question of whether the parties intended a document or documents to be the exclusive record of the terms of their agreement is also a question of fact.” (underline added)

Was the tribunal’s determination in respect of the 15 February email one of law or fact?

50.  In the trial judgment, the first two issues identified by the presiding officer revolved around how the 15 February email should be construed. The first ground of appeal of the company (which is its primary ground) is crafted as an issue of construction. Based on this, Ms Lau submits that as construction is a mixed question of law and fact, this court may intervene to correct any error which it sees, and in the process of doing so, does not have to follow the approach laid down in Kwong Mile.

51.  It is true that the core issue in this case has consistently been described as one of construction. On a proper analysis, however, I consider that in order for the tribunal to determine the rights and obligations of the parties under the employment contract, the real question before it was this – at any time before the company sent its 17 February email, judging by an objective standard, did Chiu show an intention to terminate her employment with immediate effect?

52.  In my view, the question should be approached by taking into account not only the 15 February email, but also by considering what happened on the three consecutive days from 15 to 17 February. The objective intention of Chiu was to be gathered from all these events which took place very close in time. This was in fact what the presiding officer did in her reasoning. This is in fact what counsel for both sides have attempted to do in their submissions in these appeals.

53.  Therefore, while the 15 February email was a material document at the trial, the intention of Chiu was to be ascertained not exclusively from that document but also from what she said orally, what she did (or did not do) and the other emails and messages exchanged between the parties. Accordingly, applying Carmichael, the rule that the construction of documents is a question of law does not apply here. The question about Chiu’s intention is a question of fact. It follows that the tribunal’s determination on this is one of fact.

54.  I should add that if one takes a step back and looks at the issue which was before the tribunal, it is plain that the issue was highly fact-sensitive. I share the observation which Mr Cheung makes in this regard.

55.  I therefore reject Ms Lau’s submission insofar as it suggests that whenever the tribunal’s finding involved the construction of a written document, it would be a mixed question of law and fact and would hence warrant the intervention of the appellate court. She refers me to para 16-050 in Chitty in support. However, para 16-051 (which appears on the same page) is pertinent in the present case and has not been taken into account in the submission.

56.  In conclusion, the ruling made by the presiding officer in respect of the 15 February email was one of fact. I should therefore approach the appeals by applying the principle laid down in Kwong Mile.

DISCUSSION

57.  I shall first deal with the first ground of appeal.

The first ground

58.  Under the first ground, the company contends that the presiding officer ought to have interpreted the 15 February email as meaning that Chiu was terminating the employment with immediate effect.

59.  In my judgment, this case is one of those cases where reasonable people would differ on how to interpret the events and reach different but equally reasonable conclusions about Chiu’s intention. I consider that the presiding officer’s interpretation of the 15 February email and all the surrounding circumstances was a reasonable conclusion which could be drawn from the primary facts. At the same time, the opposite conclusion advocated for by the company both at trial and in these appeals is also a reasonable conclusion. Neither can be said to be the true and only reasonable conclusion. As such, there is no room for me to disturb the tribunal’s ruling.

60.  As regards the presiding officer’s conclusion, I have set out her rulings and some of her reasoning above. It is plain from a reading of the trial judgment and the review judgment that she placed considerable weight on the fact that Chiu repeatedly and consistently made the request for waiver of notice period on the three days in question. See paras 27 and 29 above. It is also apparent that she gave weight to the fact that when Chiu resigned, she had the contractual right to choose between serving her notice period and making payment in lieu. See paras 30 and 31 above. Taking into account these factors, the presiding officer concluded that Chiu did not intend to terminate the employment with immediate effect. If she had so intended, she would not have kept asking the company for a waiver of her notice period.

61.  The presiding officer did take into account the fact that Chiu did not attend office for work on 16 and 17 February, which is a factor heavily relied on by the company. But it is clear that it was not a factor which weighed particularly heavily in her mind. That said, it is not a case where the tribunal had disregarded a relevant piece of evidence.

62.  In her submissions, Ms Lau highlights some of the words used in Chiu’s emails and WhatsApp messages, which she submits show that Chiu had no intention to continue working for the company and she intended that the termination was to take effect immediately.

63.  In the 15 February email, she wrote:

“ 本人特此提出辭呈，自2022年2月15日起立即生效。” (underline added)

“ 我會要求我們雙方同意立即終止我的僱傭關係，恕不另行通知。” (underline added)

“ 請感謝李先生有機會為Life Young工作。但是，由於個人原因，我很難繼續下去。我真的需要時間好好休息一下，重新思考一下。希望你能理解。” (underline added)

64.  Further, in the WhatsApp message sent on 15 February, Chiu wrote:

“ 我已經Email Resign啦” (underline added)

65.  I have to say that these words are arguably equivocal insofar as Chiu’s intention is concerned because in her communications with the company in those three days, Chiu did repeatedly make the request for waiver of the notice period.

66.  The company has reached an opposite conclusion. For my part, I can well understand its reasoning, which is fairly straightforward. Even though Chiu asked for a waiver of her notice period in the 15 February email, after that email was sent, she immediately exited all the work-related WhatsApp groups and failed to attend the office on the following two days. As Ms Lau submits, had Chiu intended to serve out her notice period, she should have remained in the groups and attended the office to work in case the company did not agree to her request. After all, the fundamental duty of an employee is to work for his employer. Yet, she did not do so. Hence, objectively speaking, one can deduce from her conduct that she intended to terminate her employment with immediate effect, notwithstanding her words. And she should not be allowed to withdraw the termination unilaterally afterwards.

67.  When the two contrary conclusions are looked at side by side, one can readily see that they are arrived at because emphasis is being placed on different factors. The presiding officer gave more weight to Chiu’s words (her repeated request for waiver) whereas the company attaches more significance to Chiu’s conduct (her exiting the WhatsApp groups and failing to attend the office for work). Had I been the judge trying this case, I believe that I might have been more influenced by Chiu’s conduct than her words in my evaluation process.

68.  Having said that, there is no room for me to intervene with the tribunal’s determination since the company has failed to show that the conclusion which it draws is the true and only reasonable conclusion that can be drawn from the primary facts. The first ground of appeal therefore fails.

The second ground

69.  Under the second ground, the company contends that the presiding officer ought to have held that an implied resignation took effect by the words and conduct of Chiu. Whether such implication should arise turns on the objective intention of Chiu and the company. I have already held that the determination of the presiding officer on the intention is not to be disturbed. On that premise, no implied resignation would arise. The second ground therefore fails.

The third ground

70.  Under the third ground, the company says that the presiding officer erred in not holding that as a matter of construction, in its 17 February email, the company did not seek to terminate the contract and merely sought to carry out what Chiu said in the 15 February email.

71.  In light of my ruling above, this ground cannot be upheld. The tribunal found that the 15 February email was a notice of resignation, but the actual notice would be pending the company’s reply as to whether it would waive the notice period. I have held that this is a finding which I should not disturb. By its 17 February email, the company was asking Chiu to pay one month’s salary as compensation. It did not mention notice period at all. It did not say that Chiu could serve out the notice period as an alternative. Hence, it cannot be said to be “carrying out” the 15 February email.

CONCLUSION

72.  None of the grounds of appeal succeed. I therefore dismiss both appeals. I make an order nisi that the company do pay the costs of Chiu in both appeals, including all reserved costs, to be taxed if not agreed, and that Chiu’s own costs be taxed in accordance with the Legal Aid Regulations.