TUNG WAI SHEUNG v. WAH SUN GARMENT FACTORY

Labour Tribunal Appeal No. 19 of 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. The parties have sensibly settled the dispute after full argument and after the court had given its decision. But in view of the issues involved in the appeal and in deference to counsel's argument, I feel obliged to give a written judgment.

2. This is an appeal against the decision of the Presiding Officer in the Labour Tribunal dismissing the appellant's claim for wages in lieu of notice and long service payment against the respondent. The total claim amounts to just over $20,000.00

3. The appellant had been working as a sewing machine worker in the respondent's garment factory since June 1989. She claimed to be summarily dismissed by the respondent on 24th of October 1996 after an argument with the daughter of the proprietor of the respondent when the daughter accused her of being absent since 19th of October 1996 without leave. The daughter was also unreasonably critical of her work throughout that day. The appellant alleged that she had in fact applied for leave.

The appellant also suggested that there had been insufficient work in the factory for some time and that she only had work on the first three days of October 1996 and was then told to wait for phone call at home.

4. The respondent on the other hand suggested that the appellant was absent without leave between 19th and 23rd of October 1996. When the appellant unexpectedly turned up for work on the 24th of October 1996, she was given a warning. But there was insufficient work for her that day, the appellant was sent home after she was given her pay cheque for the first half of October 1996. There was an argument the next day in connection with the cheque and as a result the appellant simply walked out.

5. The respondent alleged that the appellant had in fact terminated her employment without notice and hence the counterclaim for wages in lieu of notice.

6. The Presiding Officer dismissed the claim and the counterclaim because the appellant had failed to prove that it was the respondent who dismissed her and the respondent had failed to prove it was the appellant who terminated the employment. In his Reasons for Decision, he said the following: -

"Each party had portrayed themselves as completely blameless in the ending of the employment relationship between the claimant and the defendant. Each presented a different story at trial. I found both stories equally unbelievable. I therefore dismissed the claimant's claims for wages in lieu of notice and long service payments. The Defendant's counterclaim for wages in lieu of notice was also dismissed."

7. On the background of the case, the primary issue that the Presiding Officer had to resolve was whether the appellant was dismissed by the respondent or whether the appellant terminated the employment herself.

8. If the appellant was dismissed by the respondent without notice, the further issue would be whether the dismissal was justified under s. 9 of the Employment Ordinance.

9. If the appellant was dismissed by the respondent and the summary dismissal was not justified, the respondent would be liable to pay to the appellant the wages in lieu of notice as well as the long service payment.

10. On the other hand, if it was the appellant who terminated the employment, the Presiding Officer would have to consider the question of constructive dismissal. The background of the case suggested that the appellant was provided with little work at the material time.

11. If her income depended on the amount of work she performed, by providing insufficient work for the appellant to enable her to make a normal and reasonable income, the respondent might well be guilty of constructive dismissal in which event, the respondent was still liable to pay the appellant wages in lieu of notice as well as long service payment even it was the appellant who terminated the employment.

12. In F.C. Gardner Ltd. v. Berisford (1978) I.R.L.R. 63, it was suggested that in some circumstances it would be reasonable to imply a term in the contract of employment that an employer will not treat his employee arbitrarily, capriciously or inequitably on matters of remuneration.

13. If the respondent had not provided enough work for the appellant so as to enable her to make a reasonable earning, the respondent could well be the sort of employer of whom an employee is entitled without notice to rid himself. (see Wetherall (Bond St. W1) v. Lynn [1978] 1 W.L.R. 200)

14. If it was the appellant who terminated the employment without notice and the question of constructive dismissal did not arise, the appellant must be liable to the respondent for the wages in lieu of notice.

15. A judge, of course is perfectly entitled to reject the plaintiff's case if, in the view of the judge, the evidence does not suffice to make out that case. The onus is on the plaintiff. The same, of course, applies where there is a counter-claim: the onus in on the defendant to make out the counterclaim. But this applies only to a situation where the claim and the counterclaim are separated and unrelated.

16. In the present case, the appellant's claim and the respondent's counterclaim both depended on the same facts: was the appellant dismissed by the respondent or did she terminate the employment herself?

17. Unfortunately the Presiding Officer had not made the necessary findings pertaining to the issues involved in the dispute at all.

18. Section 20 of the Labour Tribunal Ordinance stipulates that "the presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party."

19. There are clear authorities to suggest that the procedure in the Labour Tribunal is inquisitorial and not adversarial. A presiding officer can pursue an active investigative role by calling whatever witnesses he thinks may be of assistance in his determination, ordering for production of whatever exhibits he thinks are relevant and putting questions to any party of witness as he thinks fit. (Yan Kwok Tung v. Napoleon Restaurant Ltd [1993] 2 HKLR 1, Chan Suk Bing Angie v. Harbour Phoenix Ltd & Anor. [1992] 2 HKC 459.

20. I accept that the statutory duty is not absolute and not every failure to investigate a relevant matter would give rise to an appeal. But the fundamental issue involved in the dispute was whether the appellant was dismissed or whether she terminated the employment.

21. The Presiding Officer had not made a finding on the basis that there was no evidence for him to make a finding of facts as to who actually effected the termination of the employment relationship.

22. His approach, with respect would lead to a denial of justice. It can only mean that the parties to the case on one side or the other are deprived of relief to which they are entitled. In my view, his approach was incorrect as he had failed to discharged the statutory duty to investigate and had failed to discharge the judicial duty to decide on the issue.

23. The Presiding Officer had also failed to appreciate the question of whether the appellant could have been constructively dismissed because of the failure by the respondent to provide her with adequate work so as to enable her to make a reasonable income.

24. I would have made the order remitting the case back to the Labour Tribunal for a re-trial before another presiding officer to resolve the following issues:

1. Did the appellant terminate the employment and if so whether such termination was the result of constructive dismissal?

2. Did the respondent summarily dismissed the appellant and if so whether the dismissal was justified under section 9 of the Employment Ordinance?

25. The presiding officer might have to make further enquiry by calling for additional witnesses or documents to enable him to resolve the issues in dispute and once the issues were resolved, the claim and the counterclaim would have been properly disposed of.

26. As the parties had settled the matter, no further order is required.

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