XCHRX KING'S FLAIR DEVELOPMENT LTD. v. CHOI LAI CHING

HCLA 37/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 37 OF 1999

(On Appeal from Labour Tribunal Claim No. LBTC 1097 of 1999)

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REASONS FOR DECISION

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This is an application for leave to appeal against the determination of the Labour Tribunal made on 15th April 1999.

2. The facts of the case are quite simple. The Claimant tendered resignation by notice in writing on 20th November 1998. By this notice, termination of her employment was to take effect on 20th December 1998. The same day the Claimant tendered her resignation, the Applicant's managing director had a discussion with the Claimant. It was the Applicant's case before the Tribunal that during the discussion the Claimant agreed to leave immediately. The Claimant, however, averred that she did not agree to terminate her employment immediately. It was on the following day, 21st November 1998, that she was told to leave immediately and asked to sign a document bearing the heading "Final Remuneration". She signed that document and collected the remuneration calculated as shown in that document before leaving the office. After leaving the office, the Claimant then realized that she had not been given payment in lieu of notice and the document she had signed states that she had no further claim against the Applicant. According to the notes of proceedings and the Reasons for Decision of the Tribunal, the learned Presiding Officer heard the witnesses and studied the document before deciding that the Applicant must make payment in lieu of notice of termination.

3. The grounds for the application for leave to appeal on point of law are as follows: -

(a) the order/determination is erroneous in point of law in that the Learned Presiding Officer failed to find in favour of the Appellant that a letter dated 21st November 1998 recording the final remuneration and signed by the Respondent ("the Final Remuneration") was evidence of an agreement reached between the Appellant and the Respondent;

(b) the Learned Presiding Officer was wrong in law and/or in the exercise of his judgment in having held that there was not a legally binding agreement made between the Appellant and the Respondent regarding the final remuneration payable by the Appellant to the Respondent upon resignation of the Respondent;

(c) the Learned Presiding Officer was wrong in law and/or in the exercise of his judgment in not having found in favour of the Appellant that the Respondent was only entitled to the payment as set out in the Final Remuneration;

(d) the Learned Presiding Officer failed to investigate matters relevant to the issue and/or failed to make sufficient enquiries relevant to the issue as to whether the Respondent on her own initiative desired to and did terminate employment forthwith without giving 1 month notice;

4. As I see it, the first ground cannot be right. The document dated 21st November 1998 signed by the Claimant was admitted as evidence by the Tribunal. The Tribunal did find in favour of the Applicant that that document is evidence of an agreement between the Claimant and the Applicant. Of course the Tribunal in the exercise of its judgment may decide to attach little or no weight to any piece of evidence, however favourable that piece of evidence may be to one party; and that was what happened in this case.

5. The second ground touches on arguable points of law. But, for reasons given in relation to the third ground below, I do not think leave should be granted for irrelevant points of law to be argued.

6. The third ground in reality turns on whether (1) the Claimant was summarily dismissed and (2) the Claimant waived notice of termination and payment in lieu of notice. There was no suggestion that summary dismissal was justified. According to the Reasons for Decision, the Tribunal clearly believed the Claimant's evidence and found as a matter of fact that she was summarily dismissed. Such finding of fact is not appealable. As to waiver, Section 8 of the Employment Ordinance, Cap. 57 provides that notice or payment in lieu of notice may be waived at the time notice is required to be given. Obviously, the document "Final Remuneration" was not notice of termination. It only sets out the salary and other allowances calculated to 22nd November 1998. The decision to dismiss the Claimant with immediate effect was communicated to the Claimant verbally by a member of the staff of the Applicant when the Claimant was given the document to sign. There can be no doubt that the Claimant had been dismissed whether she would sign the document or not. The Claimant, it was common ground, did not say she waived anything. She took the document away for an hour before returning it duly signed. On such undisputed fact, Section 8 of the Ordinance does not apply. This leads to Section 8A of the Employment Ordinance, Cap. 57. That section provides that damages equivalent to payment in lieu of notice is payable if adequate notice has not been given. The Tribunal was bound to apply Section 8A and did just that.

7. Reverting to the second ground, it is arguable whether "remuneration" includes payment in lieu of notice or damages. It is also arguable whether the Claimant entered into a binding agreement on her remuneration. But these arguments became irrelevant once the Tribunal accepted as fact that the Claimant signed the "waiver" one hour after notice was given. Moreover, the Tribunal clearly accepted the Claimant's evidence that she gave no thought to payment in lieu of notice until after she had signed and handed in the "Final Remuneration" document. In other words, the Tribunal found that there was no consensus ad idem. Even if there was agreement, as the Tribunal found in fact, the agreement was too late in time.

8. As to the duty to investigate or make further enquiries. I do accept there is such a duty. See the judgment of Deputy Judge Wesley Wong in Lands Tribunal Appeal No. 24 of 1997 cited by Mr. Li for the Applicant. But it is no good complaining about insufficient investigation or enquiries unless it is clearly demonstrated that (1) further investigation or enquiries could be carried out and (2) it was reasonable to do so in the circumstances. In this case, as the learned Presiding Officer noted in the Reasons for Decision, evidence from the managing director of the Applicant as to what went on during the discussion he had with the Claimant would be crucial to the issue of whether the Claimant agreed to leave without serving out notice. The learned Presiding Officer further noted from the records of a previous hearing that another learned Presiding Officer had directed that a statement from the managing director should be filed before trial. No such statement was filed. No explanation for such failure was given. The managing director did not attend the trial to give evidence. The representative for the Applicant did not apply for adjournment to enable the managing director to give evidence. These circumstances are all too familiar to me. In labour disputes, for reasons better known to themselves, the bosses or senior management are often reluctant to give evidence. I have seen many similar cases during my time sitting at the Tribunal. When it is apparent that one side is not willing to produce a witness, it is unfair to adjourn a trial scheduled well beforehand to compel the attendance of that witness. The Tribunal has a statutory duty to determine claims expeditiously. If the other party does not wish to produce a witness within its control, the Tribunal taking into account all factors and circumstances may proceed with the Trial. It is not right to subsequently turn round and lambast the presiding officer concerned for not playing into the hands of an unco-operative party.

9. In my view, whether the Tribunal should proceed with the trial or adjourn for further investigation or enquiries is a matter for the discretion of the learned Presiding Officer. Unless the exercise of the discretion is patently wrong, an appellate court has no ground to intervene. Mr. Li relied on two decisions of the Court of Appeal in CHIU Wai Ming v. LEUNG Suk Fong, HCMP 1017 of 1999. That case concerned an application for leave to appeal out of time against a decision of the Lands Tribunal. On 12th March 1999, Leong J.A. refused leave and delivered a written judgment giving the reasons therefor. Then on 15th April 1999, the Court of Appeal comprising Chan C.J. and Liu J.A. granted leave on the same application and delivered a written judgment giving the reasons therefor. Now, the appeal intended there related to the decision of the Lands Tribunal to award costs against the Applicant. Leong J.A. sitting alone held that an order for costs is a matter of discretion for the lower court and is not appealable when the right to appeal is limited to points of law. Chan C.J. and Liu J.A. sitting together in a subsequent hearing on the same application held that an order for costs is arguable and thus appealable. Frankly, I do not see the relevance of these two decisions to the point before me. Even if they are relevant, they are directly in conflict and they arose from the same case. I am at a loss as to which one to follow.

10. In the premises, there being no relevant arguable point of law, leave to appeal is refused.