GENERAL SECURITY (H.K.) LTD. v. LAI YIU CHING

Labour Tribunal Appeal No. 121 of 1994

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 a Labour Tribunal Appeal. It is against a judgment of Mr. Ernest Lin dated the 3rd January 1995.

2. The Appellant employer was the Defendant in the proceedings before Mr. Lin. There was however also a cross claim.

3. The Respondent was employed as a nightwatchman on the 1st July 1994. His superior caught him asleep on duty. It would appear to be common ground that an unseemly scene followed this and the Respondent used foul and coarse language. Mr. Lin found this proven and held that this was conduct justifying his summary dismissal. It is however the Appellant's contention that on the evidence which was before Mr. Lin the Respondent was not actually dismissed.

4. The superior who remonstrated with the Respondent had not dismissed him as he had not had authority to do so. They claimed that subsequent to the incident the Respondent had threatened to resign thus indicating that he had not been sacked. The Appellant accordingly claimed that they were entitled to receive 2 weeks wages from the Respondent in lieu of notice.

5. Essentially this appeal can conveniently be divided into two parts.

6. The first relates to the complaint that the Appellant should not be bound by the settlement which was concluded prior to the hearing. Under this settlement, the Appellant consented to judgment in the sum of $2,473.00 in favour of the Respondent which sum represented wages in arrears, statutory holiday payment and annual leave payment. The part which the Appellant did not consider themselves to be liable for was the final item the annual leave payment.

7. Mr. Yip who represented the Appellant submitted that Mr. Lin had not strictly complied with s. 15 of the Ordinance.

"15. Conciliation certificate to be filed

(1) The tribunal shall not hear a claim until a certificate in the prescribed form signed by a tribunal officer or an authorized officer is filed or produced to the effect that --

(a) one or more of the parties has refused to take part in conciliation;

(b) conciliation has been attempted but no settlement has been reached;

(c) conciliation is unlikely to result in a settlement being reached; or

(d) conciliation may prejudice the interests of a party.

(2) A certificate under subsection (1) shall be filed with or produced to the tribunal not later than 24 hours before the date fixed for the hearing of the claim.

(3) During the hearing of a claim the tribunal may, subject to sections 16 and 30, adjourn the claim and notify the Commissioner in the prescribed form of the adjournment and the reason therefor if -- (Amended L.N. 377 of 1980)

(a) the tribunal is of the opinion that there is a reasonable likelihood of a settlement of the claim; and

(b) all parties to the claim have agreed to an adjournment for the purpose of conciliation.

(4) The Commissioner may, when he has been notified of an adjournment pursuant to subsection (3), hold conciliation between such of the parties to the claim as are willing to take part.

(5) The Commissioner may, if after such conciliation the parties reach a settlement of the claim or if he is of the opinion that there is no reasonable likelihood of such a settlement, so advise the tribunal in the prescribed form.

(6) The Commissioner shall, unless he has earlier advised the tribunal under subsection (5), advise the tribunal as to what, if any, progress has been made in the conciliation not less than 24 hours before the date to which the claim has been adjourned.

(7) If a settlement of a claim is reached, whether as a result of conciliation or not, the terms of the settlement shall be reduced to writing in the prescribed form and signed by the parties to the settlement.

(8) A settlement, which has been reduced to writing and signed by the parties thereto, shall be filed in the tribunal.

(9) A settlement filed under subsection (8) shall be treated for all purposes as if it were an award of the tribunal."

8. Mr. Lin specifically referred to subsection (7), (8) and (9).

9. It would appear to be the case that no certificate was prepared or signed by Mr. Lin.

10. I do not agree with Mr. Yip that this was a procedural irregularity in the present case.

11. What is clearly envisaged in s. 15 is the successful outcome of the conciliation process and a requirement that any agreement concluded be formally finalised.

12. That was not the position in the present case. It is evident from the notes of the proceedings that the agreement which had been concluded prior to the substantive hearing was not a resolution of the issues outstanding between the parties but simply an agreement as to a part of the claim being made by the Claimant. I do not consider that there was any necessity to draw up a conciliation certificate in these circumstances.

13. The other matter complained of by Mr. Yip was that the agreement concluded was clearly inconsistent with the finding eventually reached by Mr. Lin that the claimant had been guilty of misconduct justifying his summary dismissal.

14. I do not think that there is anything in this point. It is often the case that where parties are attempting to reach an accommodation the agreement reached may not be in conformity with findings which may thereafter be made. Indeed, it would not be possible to consider a settlement in many cases unless this was the case.

15. The second part of the appeal relates to the matter I referred to in my introduction to this judgment. This was the factual question as to whether the Respondent had been dismissed or whether he had resigned on his own initiative. The complaint made by Mr. Yip was that it was incumbent upon a Presiding Officer to go into all of the background of a case so that he could make findings of fact on all relevant outstanding issues.

16. I consider on reading Mr. Lin's brief judgment that he did all that it was necessary for him to do. On the evidence which was before him this was clearly a situation where an employee had been guilty of serious misconduct. It was a situation where the employer would obviously be fully justified in dismissing the employee. It would seem to me to be highly artificial to start casting around to see whether the employee had actually been dismissed.

17. The 2 cases cited by Mr. Yip in this connection Tanner v. Kean [1978] 1 RLR 100 and Harrison v. George Wimpey [1972] 7 ITR 188 dealt with different situations to those which were before Mr. Lin.

18. I consider that the real test to be adopted in such a situation is to enquire whether the Appellant would have been prepared to keep the Respondent in their employment after the incidents which occurred on the 1st July 1994. Assuming that these are responsible employers the answer must clearly be 'no'.

19. For the reasons I have given I have dismissed this appeal.