CHEUNG TIM FUK v. FAR EAST COTTON INDUSTRIES LTD.

LTA No. 71/95

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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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 of the Labour Tribunal in dismissing the Appellant's claim for wages in lieu of notice, annual leave, end of the year payment and long service payment.

2. The Appellant was employed by the Respondent company as a vehicle technician for more than 7 years and on the 8th of December 1994, the Appellant was told by his supervisor Mr. Junk to dispose of some spare vehicle parts. The Appellant was reluctant to do so as he regarded some of them could still be useful. An argument then followed between him and Mr. Junk. Mr. Junk told the Appellant to leave the spot as he was making a scene but the Appellant refused to do so. The evidence of Mr. Junk was the Appellant told him to dismiss him but he did not and he never had the intention to dismiss the Appellant. Nevertheless, as the Appellant refused to leave the spot until he was given a dismissal letter, Mr. Junk wrote out the letter which was exhibited before the learned Presiding Officer. This letter is as follows :

"I, Junk Hing Sui here at 8 a.m. on the 8th day of December, 1994 dismiss Mr. Cheung Tim Fuk and agree Mr. Cheung to go to the Labour Department to make a claim against Far East Cotton Industries Ltd.

8th December, 1994"

3. The learned Presiding Officer found that the defence of the Respondent was one of summary dismissal under s. 9 of the Employment Ordinance. He found the Appellant had challenged Mr. Junk to dismiss him and that the Appellant had either failed to obey a lawful and reasonable order or conducted himself in a manner inconsistent with the due and faithful discharge of his duties. He found that the Respondent was entitled to dismiss the Appellant summarily under s. 9 of the Employment Ordinance by just telling the Appellant to leave without writing out the dismissal letter.

4. On appeal, the Respondent submits that the company did not and had no intention to dismiss the Appellant. Mr. Junk was merely telling the Appellant to leave the spot and not leaving employment. The letter of dismissal did not intend what it states. That was written to satisfy the Appellant so that he would stop making a scene at the spot. It is also submitted that the Appellant was not required to leave the company premises until 12 noon and if the Respondent had dismissed the Appellant at 8 a.m., he would not have been allowed to stay until then. The Respondent submits the Appellant left of his own accord.

5. The Appellant submits that he did not leave of his own accord and he was dismissed because there was some grudge between him and Mr. Junk before and Mr. Junk used the occasion on 8th December, 1994 to dismiss him.

6. The evidence of Mr. Junk before the learned Presiding Officer is this:

"He pushed his cart over and dump all the parts on to the cart. I told him that I did not ask him to work there and I ask him to leave the spot. He retorted that I was dismissing him and demanded to be compensated. He then went around making a scene and insisted me to write out a dismissal letter before he agreed to leave."

7. When Mr. Junk was asked by the court if he wanted to dismiss the Appellant, his answer was "No".

8. Thus the case of the Respondent was as he submits before me i.e. the Respondent never dismissed the Appellant. The Respondent never relied on the conduct of the Appellant to found a justified summarily dismissal.

9. The conclusion of the learned Presiding Officer is against the evidence before him. The issue of whether the Appellant was dismissed or he left of his own accord should be further investigated. The appeal is allowed and the case remitted to the Labour Tribunal for a retrial.