HOP FUNG STEVEDORES & TRANSPORTATION CO LTD v. CHOW TAI HAY

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

LABOUR TRIBUNAL APPEAL NO. 50 OF 1987

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J U D G M E N T

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1. This is an appeal from a decision dated the 12th of October 1987 of Mr Paul Chiu, a Presiding Officer of the Labour Tribunal in which he made awards in favour of the then claimant, the respondent here, for wages in lieu of notice, statutory holiday pay, annual leave pay, and severance pay. He dismissed a claim for long service pay which had been brought as an alternative.

2. Before me the original defendant, the appellant here, was represented by Mr Andrew Chung to whom I was much indebted for an admirably well researched and clear argument.

3. The appellant does not challenge the Presiding Officer's awards other than that of severance pay. There, however, his case is that the "relevant date" for the purposes of Part VA of the Employment Ordinance ('the Ordinance') was the 28th of March 1987. The respondent was required by Section 31N of the Ordinance to give notice of his claim within 3 months of the relevant date but did not do so until the 2nd of July 1987 which was too late, the 3 months having expired on the 28th June.

4. The following facts were found by the Presiding Officer :-

(1)    The respondent was employed by the appellant from 1st June 1982 as a crane-driver on daily pay of $152 a day.

(2)    He worked on an average 20-21 days a month which constituted a continuous contract.

(3)    The respondent was asked to go back to work each day when he was required but on the 16th March he was not asked to go back and did not work for the appellant after that.

(4)    The respondent was accordingly dismissed from his employment due to redundancy within the meaning of Section 31B(1) of the Ordinance because Section 31E provides that he shall be taken to be so dismissed if the employees remuneration depends on the employees being having been provided with work and such work is not provided for 12 working days within any period of 4 consecutive weeks.

(5)    Such period of 4 consecutive weeks began on the 16th of March 1987 and accordingly finished on the 15th of April. The notice served on the 2nd of July was within 3 months of that date and was accordingly within the time limit.

5. There was little evidence before the Presiding Officer of what days the respondent had actually worked before the 16th of March except his estimate of 20 days a month. No records were apparently available from the appellant. The respondent's allegation that he had worked for the appellant after the 16th March was rejected.

6. I have no doubt that, on the facts as found, the respondent was "laid off" in accordance with the provisions of Section 31E of the Ordinance for the purposes of Section 31B. He would therefore be entitled to severance pay provided he gave notice within the time limit provided in Section 31N i.e. 3 months from the "relevant day". The "relevant day" is defined by Section 31E (3) of the Ordinance as any day or, which the period of four consecutive weeks referred to in subsection (1) has expired. It is the case for the appellant that just because the last day on which the respondent was known to have worked was the 16th March the relevant day is not therefore four weeks after that, as found by the Presiding Officer (a week is defined in the Ordinance as beginning on Sunday and ending on Saturday). The appellant's business was in decline and while no records were available it is highly unlikely that the respondent worked every day in March up to the 16th. The 1st to 28th March 1987 formed 4 continuous weeks. It is known that the respondent did not work from the 16th to the 28th. On average he would have worked 11 days during the period 1st to 15th and therefore on the 28th there had been a continuous period of 4 weeks without 12 days work being offered.

7. This is an ingenious argument but, with respect to Counsel, it must fail. The only period in March when it is known whether or not the respondent worked is the 16th to the 28th, and the Court cannot speculate as to what days were worked during the rest of the month in the context of calculating the relevant day for the purposes of Section 31N.

8. The defence raised here is technical i.e. that the notice was served 4 days too late. It should, in my view, only succeed if the relevant date must have been prior to the 2nd of April. I am satisfied that is not so here on the available evidence.

9. If the appellant's argument on what was the relevant date based on the average number of days the respondent was likely to have worked in March fails, it then relies on contructive dismissal. Section 11(3) of the Ordinance allows an employer to lay-off a worker for such periods as agreed or can be implied by the terms of the contract of employment provided such lay-off does not exceed 12 days in any 4 consecutive weeks. Here there was no term of the contract which enabled the respondent to be laid-off and it may be difficult to imply such a term. It is argued that if that is so the contract was repudiated by the appellant on the first day the respondent was not asked to go back. Even if such repudiation must be accepted by the worker before there can be a dismissal, such acceptance must be taken to have occurred before the 15th of April.

10. Again I am satisfied this argument must fail. Whether or not the contract of employment between the appellant and the respondent came to an end on the 16th of March (or on the 28th of March) by constructive dismissal, I am satisfied that that does not affect the "relevant date" which has its own definition. It seems to me that once it is found that the employee was "laid-off" within the provisions of Section 31E(1) the employer cannot rely on the concept of constructive dismissal to change what those provisions provide is the relevant date. Again I am satisfied that the Presiding Officer was correct in holding that to be 4 consecutive weeks after the 16th March, i.e. the 15th April and the notice served was within time.

11. The appeal must therefore be dismissed.

12. The respondent was not represented. He is not entitled to costs but I make an award of $100 to cover his expenses.