DATOR, JIMSON MATTHEW C. AND ANOTHER v. SEAR ROGERS INTERNATIONAL SCHOOL AND ANOTHER

HCLA 19/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 19 OF 2005

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 7030 OF 2004)

____________

____________

_______________

J U D G M E N T

_______________

1.  Until 31 August 2004 the claimants were employed by the defendant Sear Rogers International School.  The first claimant, Mr Dator, was deputy head teacher, a position he had held for more than 12 years.  The second claimant, Ms Lilley, was a teacher.  Her length of service was for more than 9 years.

2.  It was the practice of the school to enter into yearly contracts of employment of its teaching staff at the start of each school year.  But come the beginning of the 2004/5 year there was no contract forthcoming for the claimants, and this has been treated as summary dismissal of them both.

3.  The SRIS declined to pay any wages in lieu of notice and long service payments.  Both claimants took the matter up with the Labour Tribunal.  A Presiding Officer investigated the matter and found in favour of the claimants.  He ordered that Mr Dator be paid wages in lieu of notice and a long service payment totalling $117,888.99; for Ms Lilley it came to $90,688.39.

4.  This is an appeal by the SRIS from that decision.  The school’s contention is that the correct decision would have been to hold that there was misconduct by both claimants in the performance of their duties giving the school the right to dismiss them both summarily, which in fact it chose to do.  Thus the claimants were entitled to neither wages in lieu of notice nor long service payments.  The Presiding Officer came to the wrong determination because he failed to carry out a proper or adequate investigation as was required of him under the Labour Tribunal Ordinance, and thereby erred in law.

The Law

5.  I begin by reminding myself as to how it is that a Presiding Officer is obliged to function.  Section 20(1) of the LTO requires that the hearing shall be conducted in an informal manner; this is no doubt because the parties in a dispute are not represented legally.  Section 20(2) entitles him to subpoena witnesses, order production of documents and put such questions to the witnesses as he sees fit.  Section 20(3) states:-

‘The Presiding Officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party.’

This, in effect, imposes upon the Presiding Officer the need to function as an inquisitor rather than as an adjudicator in adversarial proceedings; see Chan Suk Bing Angie v. Harbour Phoenix Limited & Another [1992] 2 HKC 459 at 462.

6.  Leave to appeal will only be given if there has been an error in point of law, or the order is outside the jurisdiction of the Labour Tribunal; section 32(1) LTO.  It follows that a finding of fact cannot be attacked on the basis that it is against the weight of evidence.  And as it was said in Chan Suk Bing Angie v. Harbour Phoenix Limited (supra) at p. 463:-

“It is not open to the appellate court to prefer its own views to that of the Presiding Officer’s as to the manner of investigation.  To suffice, it must be a clear and obvious case that the inadequacy of the investigation will render an ordinary reasonable man on the tram to Shaukiwan to conclude that injustice has resulted in that a fair and proper determination of the claim cannot be attained.”

The Statement of Defendant

7.  This is a statutory document that a defendant disputing a claimant’s claims is required to file and becomes part of the papers available to the Presiding Officer.  In this case the statement was completed by one Michael Chan, designated the school’s vice-supervisor.  In it he summarized the conduct or, rather, misconduct of the claimants which led to their dismissals.  In respect of Mr Dator there were 6 specified areas; namely:-

(1)     failing to report for duty as from 10 August 2004;

(2)     failing to get approval for taking leave during the summer break of 2003-4;

(3)     gross neglect of duties, as listed.  There were 6 examples; one is pertinent; failing to supervise to ensure that his teaching staffs (sic) attend the graduation ceremony [Speech Day] on 13 July 2004;

(4)     absences from work without leave (14 dates listed between March 2003 and August 2004;

(5)     habitual lateness;

(6)     wilful disobedience of reasonable orders (2 examples given).

8.  As for Ms Lilley, there were 4 matters:-

(1)     absence without leave on 13 July (Speech Day), and from 25 to 31 August (a week prior to the start of the New Year);

(2)     failing to get approval for taking leave during the summer break of 2003-4;

(3)     failing to report for duty as from 25 August 2004;

(4)     failing to organize an exhibition of artwork as instructed by the supervisor.

The Case Against Mr Dator

9.  Concerning Mr Dator the school exhibited 6 letters written by the school’s supervisor, Mrs Delia Pei to him on dates ranging between April 2003 and March 2004, in which she complains about his conduct and in some instances warns him of the consequences of a continuation.  What is pertinent about these letters is that they spell out that the misconduct complained of was ongoing for some 16 months prior to the date of dismissal.

10.  The school wrote a further series of letters to Mr Dator dated 25, 29 and 31 August 2004.  These were penned by one Michael Chan, as designated deputy supervisor.  The letters carried a common theme; that of complaining of dereliction of duty surrounding the close of the previous school year and during the summer vacation which preceded the next.  One of them, though oddly, not the last, gave notice of termination.  The complaints in particular were of inadequate supervision of the teachers on and prior to the school’s Speech Day of 13 July including their report writing, and assuring their attendance at the ceremony, and his failure prior to the start of the next school year to liaise with the school’s management concerning such matters as the hiring of new staff and interviewing new students.

11.  Whilst these letters were most critical of Mr Dator’s conduct as spelt out, there was no reference made to the matters set out in Mrs Pei’s correspondence, which had supported the school’s statutory statement.

12.  This is crucial and material to the outcome of this appeal as it concerns Mr Dator, for in his written judgment the Presiding Officer stated at page 4:-

“I now deal with the alleged misconduct of Mr Dator and Ms Lilley.  However this must be viewed in the context of the events that occurred in the 3 months of June, July and August 2004.”

And at page 6:-

“The only evidence of misconduct apart from leave without prior approval, comes from the many letters written by Mr Chan …”

13.  June, July and August of course represents the period referred to by Mr Chan, and ignores the wider parameters complained of by Mrs Pei, which correspondence was not mentioned, and in fact was clearly overlooked, or ignored.

14.  Focussing thus on the circumstances surrounding the purported absenteeism as complained of by Mr Chan, the Presiding Officer found that the absence complained of did not amount to misconduct because there was no requirement for prior approval by management.  Further, as it came to be agreed, Mr Dator had in fact returned in good time before the start of the school year.  Based on these findings the Presiding Officer found no evidence to show misconduct as to warrant summary dismissal.

Had the Presiding Officer Performed Correctly?

15.  As I have said there was no mention in the judgment of the matters complained of by Mrs Pei.  Yet there were in her letters copious examples of misconduct that were documented from April 2003 but not mentioned by Mr Chan.

16.  Given the statutory obligation resting on the Presiding Officer at section 20(3) LTO to investigate any matter which he may consider relevant to the claim, there is no sign that he gave consideration to the relevance of Mrs Pei’s complaints.  Yet on the face of them they are highly relevant; they go to habitual lateness; habitual absences, and disobedience of lawful and reasonable orders, all of them sufficient, if established, to warrant summary dismissal.  And they were the material filed in support of the school’s statutory statement.

17.  It is not enough that the letters and their contents were not alluded to by the school’s representative in the conduct of its defence.  Section 20(3) requires investigation of matters relevant whether or not they have been raised by a party.

18.  In the circumstances there is, as I find, an error by omission by the Presiding Officer in dealing with the claim by Mr Dator and that needs to be rectified.

The Case Against Ms Lilley

19.  ..… is much more limited.  Although there are four grounds put forward by the school to justify Ms Lilley’s summary dismissal it seems the complaint boils down to her absence without authority from the school’s Speech Day of 13 July.  Concerning the complaint of failure to return in good time before the start of the next school year; the Presiding Officer made a finding of fact that, along with Mr Dator, she had returned in the week of 22 August; that as a finding of fact is not for me to query.  Further, the 4^th ground of not running an art exhibition appears not to have been pursued either before the Presiding Officer or in the appeal.

20.  Concerning the remaining complaint; it was undisputed that the Speech Day was originally scheduled for 24 June and Ms Lilley had arranged travel to England on 8 July.  When the Speech Day was rescheduled for 13 July she was unable or unwilling to change her travel plans; hence her absence from the ceremony.  In his judgment the Presiding Officer refers to her testimony that she told Mr Dator as deputy headmaster of her existing travel plans and that she would be unable to attend.  He went on to find that there was ‘no evidence to show or no suggestion that … Ms Lilley took leave against express disapproval’.

21.  A ground of appeal is that he failed to investigate whether Mr Dator had the express authority to approve Ms Lilley’s absence.  But from the judgment a particular matter emerges.  In February 2004 the headmaster vanished without warning, and was not replaced until the start of the new year on 1 September 2004.  Mr Dator in his absence was effectively in charge; if there is any doubt about this it is apparent from Mr Chan’s documented complaints that there were shortcomings in the way he supervised the staff.  A natural point of contact for a teacher seeking permission to leave early would be the head or, in his absence, the deputy.  If in the event the deputy exceeded his authority in his giving her permission, this could not be a matter that the teacher has to face.

22.  I am satisfied that from his judgment the Presiding Officer made a finding of fact after investigating the circumstances, and cannot be faulted for concluding there was no misconduct to warrant summary dismissal of Ms Lilley.

Determination

23.  In so far as the order entitling Mr Dator to wages in lieu of notice and long service payment is concerned, the appeal is allowed.  The claim by Mr Dator is remitted back to the Labour Tribunal to be heard anew before a different Presiding Officer.  SRIS’ costs of this appeal as relate to Mr Dator’s claim are to the SRIS should it succeed at the rehearing; otherwise no order as to costs.

24.  Concerning the order granting Ms Lilley her severance pay, the appeal is dismissed, with costs as relate to Ms Lilley to her.  The orders I make as to costs are nisi