LIU KIN-YIP & 16 OTHERS v. JACKEL PORTER CO. LTD.

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 53 OF 1993

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal by Jackel Porter Co. Ltd., the employer, against awards made by the presiding officer of the Labour Tribunal Mr. Paul Chiu on 10 September 1993 in favour of 17 claimants. Leave to appeal was given by Deputy Judge Yeung on 23 November 1993. Section 32(1) of the Labour Tribunal Ordinance limits appeals against tribunal awards to two grounds namely (a) the award is erroneous in point of law or (b) it is outside the jurisdiction of the tribunal. Mr. Andrew Chung who appears for the appellant limits his appeal to the first limb of Section 32(1). The two Notices of Appeal put the grounds of appeal in various ways, and some of them are plainly not questions of law at all. But ultimately, as I understand the position, the complaint is simply this: That upon the findings of fact made by the presiding officer and upon the undisputed evidence before him, the presiding officer was wrong in law in holding that the employer was not justified in dismissing the claimants.

2. The presiding officer based his decision on Section 9 of the Employment Ordinance which where relevance provides:

"9. Termination of contracts without notice by employer

An employer may terminate a contract for employment without notice or payment in lieu -

(a) if an employee, in relation to his employment -

(i) wilfully disobeys a lawful and reasonable order;

(ii) misconducts himself such conduct being inconsistent with the due and faithful discharge of his duties;

(iii) is guilty of fraud or dishonesty; or

(iv) is habitually neglectful in his duties; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law."

3. The primary facts, either as founded by the Tribunal or as established by the evidence, are these: (1) The employer operated a transportation business which depended on the services of drivers and lorry assistants. (2) The employer had daily commitments to deliver material to various destinations on behalf of customers. (3) In February 1993, they had a total of 13 drivers and a number of assistants. These drivers and assistants would report to work in the morning and having punched-in their attendance would be given delivery schedules for the day. It was then the duty of the drivers and assistants to carry out the work in accordance with the schedules. (4) On the morning of 10 February 1993, the drivers and assistants, including the eight drivers and nine assistants who are the claimants in this case, were give their schedules as usual for the day. But instead of effecting the deliveries as required, they held a meeting after driving out of the employer's premises with the day's schedule. The meeting lasted the entire day and at about 4.30 p.m. they returned to the employer's premises. They came up with a list of demands for pay rise, among other things a sum of a thousand dollars for basic pay plus some similar rate of increase for delivery allowance and good attendance bonus, together with 14 months' bonus and sickness allowance fringe benefit. (5) Pursuant to this course of conduct the claimants were dismissed without notice and without pay in lieu of notice.

4. In relation to the case of the 16th claimant, the presiding officer found as follows:

"As regards Claimant 16, he had signed the contract with 3 months probation. As of 10-2-93, he had done only 1 month and 24 days of service into his 2nd month of probation. He had no legitimate claim to any pay rise, yet he saw fit to lend himself in the industrial action taken by others. Clearly he did not value his employment with the Defendant.

By virtue of the fact that he was in his second month's probation he chose to withhold his service by taking part in the stoppage of work on 10-2-93. He did not see fit to divest himself of the action on 11-2-93 when an option was given him to resume work by registering with the defence management. In the circumstances his dismissal was more than justified under Section 9 for disobeying a reasonable order for work. His claim ..... must fail and the same dismissed."

5. This would appear to be a clear finding that there was concerted action by all the claimants to wilfully disobey the employer's orders for that day, to which the 16th claimant had subscribed. However, in relation to the other claimants, the tribunal's findings was to this effect: (1) The stoppage of work on 10 February 1993 was on a "spontaneous decision". (2) It was an isolated incident. (3) It was an "aberration" but not such grave misconduct as warranted instant dismissal and the Tribunal Officer added "They (the claimants) might have been visited with a stern warning with deduction in pay by way of disciplinary measures." (4) The dismissal was therefore not justified under Section 9 of the Employment Ordinance.

6. It is not clear from the judgment what the presiding officer meant when he said that the stoppage of work was the result of a "spontaneous decision". The fact is that 13 lorry drivers with their lorries and attendants took the employer's lorries out of the premises. They did not do the day's work but instead gathered together at a meeting place. However that might have originated, and whether there was prior agreement or not, the result was that they acted in concert. At the end of that day, they formulated detailed demands of the employer, as the tribunal had found. In the meanwhile, they must have realised that by failing in their deliveries that day, the employer had fallen down on its commitments to the customers.

7. There was only one question for the tribunal namely: whether as a matter of law, the employer was entitled to dismiss the claimants instantly, having regard to what took place on 10 February 1993. Whether they were wise employers, whether another course of action might have been preferable namely to given the claimants a stern warning, these are matters beside the point and irrelevant to the tribunal's determination.

8. I have earlier referred to the tribunal's finding regarding the 16th claimant which appears contradictory to the findings regarding the other claimants. There is another piece of apparent contradiction in the judgment. The presiding officer had plainly found that the stoppage of work on 10 February 1993 was inconsistent with the claimants' discharge of their duties because he deducted from his award one day's pay for 10 February 1993. This sits uncomfortably with the conclusion that what had occurred was merely an "aberration" and not "misconduct".

9. In my judgment, the facts as found by the presiding officer, together with the undisputed evidence, point only one way. The claimants had wilfully withheld their labour on the 10 February 1993, by not effecting the deliveries in accordance with the delivery schedules. They had accordingly wilfully disobeyed the employer's lawful and reasonable orders and the employer was entitled to terminate their employment under Section 9(a)(i) of the Employment Ordinance without notice or payment in lieu of notice. Moreover, their actions were plainly inconsistent with the due and faithful discharge of their duties and amounted to misconduct in terms of section 9(a)(ii). It follows that the appeal must be allowed and the awards made by the tribunal in favour of the claimants as set out in the award of 10 September 1993 must be discharged.

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