POW YEE WAH v. CHUNG WAI STATIONERY FACTORY LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO. 45 OF 1985

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 2322 OF 1985)

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J U D G M E N T

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1. On 9th December 1985 the Presiding Officer gave judgment in favour of POW YEE WAH the employee for $290 being the balance of wages in lieu of wages in lieu of notice and for $ 12,615 severance pay.

2. The employee worked for the employer for nearly 10 years between 24.7.75 and 28.4.85 as a moulding worker. On 20.4.85 she was given 7 days notice of dismissal (D. 2) between 22.4.85 and 28.4.85. Although 7 days notice was given the notice purported to be on the ground of poor workmanship and the making of unjustifiable complaints against the company. After she received the notice she worked for 3 days until the 22.4.85 (The day the 7 days notice began). On the 23rd she reported to the employer that she was sick. On the 24th she was still sick. On the 25th she did not work because she had to attend to her child. On the 26th she overslept and on the 27th she thought there was no point in returning as her notice terminated on the 28th.

3. The employee claimed 26 days wage in lieu of notice and severance pay. The employer contended at the hearing that she was only entitled to 7 days notice, that she had been paid for the days she actually worked (as was agreed) and that she was not entitled to a severance payment because she had not been dismissed by reason of redundancy but for cause as stated in the notice.

The effect of the Presiding Officers decision was as follows:-

1. That the allegations in the dismissal notice were unjustified and that the dismissal was by reason of redundancy.

2. That the employee was entitled on the terms of her employment and as agreed in evidence by her to 7 days notice only.

3. That in the circumstances the employee was entitled to treat and had treated the notice as a constructive dismissal.

4. She was entitled to wages in lieu of notice for 7 days from the day it was given (20.4.85).

5. He therefore awarded her the balance of 4 days wages in lieu of notice and severance pay.

The employer appeals on the following grounds:-

1. That the Presiding Officer misdirected himself on the burden of proof of the reason for dismissal.

2. That he failed to take account of the effect of Section 31C(5) of Cap. 57 which deprived the employee of the right to severance pay as she left the service of her employer before the expiration of the notice and without his consent.

3. That in awarding 4 days wages in lieu of notice be failed to take account of Section 7 of Cap. 57.

4. The employee served a Respondent's notice contending that the period of notice required is 1 month from a consideration of the documents and Section 6 of Cap. 57. In the course of argument I gave leave for the employee to cross-appeal and I ordered that the Respondent's notice should stand as the notice of appeal.

The Appeal

Ground 1

5. In the course of his judgment the Presiding Officer indicated that the burden was on the employer to justify the dismissal. On P. 3 he said:-

"The crux of the matter was whether the defence had made out a case for justified dismissal."

6. The employer contends that the burden is on the employee to show that she was dismissed without cause having regard to the terms of Section 31D(1). He cites the decision of Mayo J. to this effect in:

To Hin Wah and Lau Sze Hon v The Shui Ming Co. Ltd.
Claim 38/85 on 31st May 1985.

7. This contention is misconceived. In this case the initial burden on the employee is to show that she was dismissed in accordance with Section 31D(1)(a). She therefore had to show (a) that the contract was terminated with or without notice or payment in lieu thereof and (b) that it was a dismissal 'other than in accordance with Section 9'.

8. In spite of the Presiding Officer's reference to Section 9 and Section 31D(1) there was no issue as to whether the dismissal was with notice and was 'other than in accordance with Section 9' which deals only with terminations without notice or payment in lieu. On this matter the notice itself is prima facie conclusive and there was no attempt by the employer to dismiss under Section 9.

9. There being no issue that the employee had been 'dismissed' the presumption in Section 31Q takes effect 'unless the contrary is proved'.

Section 31Q : " ......... an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy."

10. The Presiding Officer rightly held that the employer had undertaken the burden of displacing this presumption and having considered the evidence be found that the dismissal was not justified.

11. In any event it is clear from a reading of the whole judgment that the burden of proof was not a factor upon which the Presiding Officer found it necessary to rely in making his finding.

Ground 2

12. The employer contends that as the employee failed to attend work for the last 2 days of the period of notice without any proper excuse the Presiding Officer ought to have found that she had left the service of her employer before the expiration of the notice and without his consent and therefore under Section 31C(5) she is not entitled to a severance payment.

13. The Presiding Officer did not refer to the provisions of Section 31C (5) in his judgment. He found that the dismissal was due to redundancy and on Page 6 he found that the employee was 'therefore' entitled to severance pay. Considered in isolation this reasoning would be difficult to justify but reasoning in a judgment must not be considered in isolation; the judgment must be read as a whole. The award of 4 days wages in lieu of notice can only have been made on the basis that the employer's behaviour in giving unjustified notice amounted to a constructive dismissal which the employee was entitled to treat as a dismissal without notice at common law and in accordance with Section 10(C) of cap. 57 and that by her actions she chose so to do. Further, that by working for three days after receipt of the notice and until the period of the notice purported to begin she had not affected her right to so treat the notice.

14. As there is no suggestion that she worked on any of the 4 days for which she received the award this is the only basis upon which the award could have been made. The Presiding Officer indicated the nature of his finding on this part in the second paragraph on Page 3 of his judgment. There was evidence before him upon which it was open to him to make this decision. In these circumstances Section 31C(5) has no application to the present case.

15. If in other circumstances if had been necessary for the Presiding Officer to consider Section 31C(5) in order to decide whether the employee had left the service of her employer without his consent before the expiration of the notice the fact that she did not attend work without good excuse on two days would not be conclusive. The decision is one of the fact and degree in which all the surrounding circumstances are relevant including the fact that the employee had worked for nearly 10 years for the employer before her dismissal and that she had received a notice making unfounded allegations against her.

16. The second ground of appeal fails.

Ground 3

17. It is urged by the employer that there was no agreement for the payment of wages in lieu of notice as provided for in Section 7 and Cap. 57. This is not in dispute but an agreement for wages in lieu of notice is not the basis of the Tribunal's award and this ground fails.

The Cross-Appeal:

18. The employee contends that the appropriate period of notice for her dismissal for redundancy is one month not seven days. The basis of this contention is as follows :-

(a) That when the employee gave evidence and appeared to agree that 7 days was the contractual period of notice this was an error on the basis (i) that her words were 'the notice period should be 7 days' (not 'was' 7 days) and (ii) that she relied on the printing on the back of the attendance cards (D.3) which specified 7 days as the notice to be given by an employee (not the employer).

(b) That therefore there was no evidence that 7 days was the agreed period of notice.

(c) If there was an agreement that 7 days was the period it was at most an agreement made in the witness box 'ex post facto' and could not be relevant.

(d) That in the circumstances the combined effect of Sections 5(1) and 6(2) (a) is to deem the length of notice to be not less than 1 month.

19. This was an attractively presented argument by Mr. Pritchard but I reject it. The Presiding Officer heard the employee give evidence and it was clear to him that she agreed that the length of notice was 7 days. She had worked for nearly 10 years with the same firm and although D.3 only specified the notice to be given by an employee and she appeared to rely upon this there is no reason to think any error took place. There was no issue before the Tribunal as to the length of notice after the employee had given evidence. It would be wrong in law and dangerous to justice for me to attempt to try a point that was not in issue at trial from a consideration of the record and the exhibited documents.

20. The cross-appeal fails.

21. Both the appeal and the cross-appeal are dismissed.

22. No extra costs were incurred as a result of the employee being given leave to appeal on her notice. I make an order nisi that the employee shall have the costs of the appeal and the cross-appeal.

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