IP MAN LOK v. SUN SANG PRINTING & DEYING FACTORY

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO.74/95

(CLAIM NO. E765/95)

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J U D G M E N T

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1. This is an appeal by the claimant against the decision of the Presiding Officer. Who dismissed the claim for 7 days' wages in lieu of notice and long service payment. There were other claims but they were either agreed, accepted or withdrawn.

2. The claimant started employment with the respondent on 1st April 1989. On 16th July 1994, he said he had applied to take leave from 17th July to 23rd July and submitted an application form to the respondent's supervisor a Mr Ng. This was done at about 6:00p.m. on that day. He then went off work. He returned to work on 26th July, 24th being a Sunday and 25th was the day on which he was delayed by traffic. I don't think it matters whether he returned on the 25th or 26th because nothing turned on this. On the 26th July there was a notice in the factory saying that there would be no work on the 26th and 27th. Furthermore, the reason given by the respondent case was not that the claimant did not come back on the 25th. It was alleged that he simply did not apply before he went on leave and therefore he was treated as having resigned or left the employment.

3. The respondent's case was that there was no application for leave at all. There was also the evidence of the so-called procedure in the application and granting of leave. In essence it was said that the employee should get a form from the supervisor, he should fill in the form and return it to the supervisor. The supervisor would hand the form to the management. The management would either reject or approve the application and then convey the message to the supervisor, and the supervisor would then inform the employee. It was only after approval had been given that he could take leave.

4. The Presiding Officer held against the claimant. He said that there was an implied term that an employee must apply for and obtain approval before taking leave. The claimant had failed to establish that through a course of conduct the application he had made was granted as a matter of course. He said that the claimant was required to apply by filling in the form stating the reason for the leave. The form had to be signed by the supervisor and it stated that it had to be approved by the Personnel Department. The Presiding Officer also found that because of an experience on 8th June, the claimant must have been made aware that approval was required before taking leave.

5. The evidence shows that the claimant had worked for 5 years and he had taken little leave for the last 3 or 4 years. Previously, it was not necessary to fill in any forms. It was only later that the factory required the employees to do so. The evidence also shows that there were three occasions when he applied for leave before the 16th July. It appears that on two occasions the claimant went on leave without being told whether his application was approved or not. Nothing was said to him. The Factory Manager said that on of these 2 occasions, he had told the supervisor to tell the claimant but was not sure whether the supervisor had done so or not.

6. The Factory Manager also admitted in evidence that in other cases where approval was given to other workers, he told the supervisor to tell the workers whether approval had been given or not. However, he admitted that sometimes the application form only came in the next morning when the worker had already gone on leave. So these admissions seem to support the claimant's case that there had been cases, that he himself and other workers were not told whether the applications had been approved or not before they went on leave. This had happened not only to the claimant before but also to some other workers. It would be therefore reasonable for the claimant or any worker to expect that if there was no indication from the management, then they would take it for granted that the application for leave was approved.

7. On the occasion which happened on the 8th June it was not clear whether it was in fact a refusal of the application or just a request by the management to the claimant to change the dates of his leave. The claimant said he was only asked to change the dates. The respondent said the first application was refused but the second application was approved. The evidence was not unequivocal. I am not sure the Tribunal can rely on such evidence to show that the claimant must have known that approval was required before taking leave. The Presiding Officer's conclusion is not free from doubt.

8. On the occasion in question, that is on the 16th July, the claimant said he had sent in an application form. The respondent said there was no such form and produced all the records to the Tribunal and also to this Court. But, the claimant said that he had certainly seen the form shown to the Labour Officer, Mr William Ng. A Mr Tang who gave evidence on behalf of the respondent denied having seen this form and denied having said to the claimant on the 28th July that his application had not been approved. This was, however contradicted by another witness called on behalf of the respondent. This 2nd witness said that Supervisor Tang did tell the claimant on his return to the factory that the claimant's application was not approved. If that is true, then certainly there was an application form because if there had been no application at all then Mr Tang would not have told the claimant that his application was not approved. Mr Tang would have told the claimant that he had not even applied for leave.

9. The claimant asked to call the Labour Officer Mr William Ng. The Presiding Officer said that that was not necessary, because of his finding that the claimant had failed to establish a practice. As I said I am not sure this was a correct conclusion he could reach upon the evidence. There was also no finding of fact as to whether there was in fact an application. I think this is also relevant. Is it a case of where there was no application or is it a case where there was an application but it was not approved for leave? Or is it case where there was an application but simply no reply was given? If there was no application at all, then certainly the claimant was not entitled to wages in lieu of notice because he was in breach of contract, and it follows that he would not be entitled to the long service payment. If it is a case of an application having been made but not approved, again it would seem that the claimant's case would also fail. But there were no evidence of such a situation. If it is a case of an application having been made but there was simply no reply, or the supervisor was asked to tell the claimant but did not do so, or was not able to do so in time, then it depends on whether there was any practice that in the absence of any reply a worker could assume that his application was approved, or even if there was no practice established, whether in the circumstances of this case, the claimant had been led to believe as he was on two occasions that if he had received no reply then he would take it that his application was approved.

10. In these circumstances, I do not think that the decision of the Presiding Officer can stand. He had not made sufficient investigation into the relevant issues involved. I would allow the appeal. Since there is no finding on the relevant issues, I have to remit the case back for a re-trial. Costs of this appeal will abide by the result of the re-trial.