CHAN CHAI SUN v. THE REGENT

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO.176 OF 1995

(APPEAL FROM CLAIM NO. E3533 OF 1995)

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J U D G M E N T

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1. This is an appeal against the decision of the Presiding Officer dismissing the claim by the appellant for wages in lieu of notice of dismissal and long service payment.

2. The appellant was employed by the respondent as a banquet houseman since 1987. He was summarily dismissed on 17th February 1996. The incident which triggered his dismissal was he was instructed to remove some curtain in the banquet hall by his superior, one Mr Chu. Initially, the appellant was not willing saying it was not his job but finally, he carried out the work, though reluctantly. There was no case of wilful disobeyance of a lawful and reasonable order that might have warranted his summary dismissal. In the course of removing, the curtain was damaged. The respondent's case was that the appellant was angry and deliberately damaged the curtain when he removed it. After that he even scolded his superior. The respondent considered that such conduct should not be tolerated. In addition, the appellant had been given a final warning a year before on 16th February 1995 and his summary dismissal was therefore justified. The appellant's case was that he was only negligent in removing the curtain and accidentally damaged it. Also the damage was slight. There was no evidence before the Labour Tribunal as to the extent of the damage to the curtain and the sole witness to the incident, Mr Chu was not called as a witness. Only Mr Mo the assistant manager gave evidence but he did not witness what happened.

3. The appellant was given leave to appeal by Woo J. on two points. To put them shortly: it is arguable that the dismissal was not justified because it did not complied with the procedure laid down in the Employment Handbook and the dismissal would only be justified if the appellant's act was deliberate.

4. In the Employment Handbook the terms of which form part of the employment contract, Section 3 of Chapter 6 sets out the procedure for disciplinary action. Under paragraph (c), a final warning to an employee for breach of rules and offences committed will be issued after two written warnings to him. In the same section, paragraph (e) lays down that if an offence is committed after the final warning, the employee may be summarily dismissed. Alternatively, the employee may be summarily dismissed if he commits a serious offence. There is no definition of "serious offence" although a list of offences which will lead to disciplinary action or instant dismissal has been set out. Prior to the final warning on 16th February 1995, the appellant had been given only one written warning. This is clearly not in accordance with Section 3. The issue of the final warning was not justified. It follows that if the respondent relies on the first limb of paragraph (e), i.e. the appellant committing an offence other than a serious one after he had been given a final warning, the dismissal could not be justified. If the respondent relies on the alternative limb of paragraph (e), i.e. the appellant committing a serious offence, his summary dismissal could only be justified if indeed the offence was a serious one. Deliberately damaging properties of the respondent is a serious offence which may justify summary dismissal. Thus the issue must be whether the appellant's act was deliberate or accidental and the extent of damage to the curtain must be relevant.

5. The Presiding Officer found that it was a deliberate or reckless act and not accidental. However, there was no or insufficient evidence to support his finding since there was no evidence of the extent of damage although it was mentioned that it was torn. To what extent was silent. Miss Lau for the respondent told me that the eye witness Mr Chu was available at the Labour Tribunal but was not called to give evidence and Mr Chu would be available to give the Tribunal first hand information about what the appellant did with the curtain. The appellant said he only pulled the curtain as he was not instructed on how to remove it. He also said that his workmate at the time would be able to tell he did not damage it deliberately.

6. In the circumstance, the case was not sufficiently investigated before the Presiding Officer so that the decision cannot stand. There must be evidence to support a finding that it was deliberate or otherwise. The appeal should be allowed and the order dismissing the appellant's claim is set aside. The case is remitted to the Labour Tribunal for a retrial on the issue of the extent of damage to the curtain and whether the appellant acted deliberately and to determine on the finding, whether the dismissal was justified. There shall be no order as to costs.

(Arthur Leong)

Judge of the High Court