XCHRX KING WIN DYEING WORKS LTD. v. CHEUNG WAN SHING

IN THE COURT OF APPEAL

M.P. No. 523 of 1995

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J U D G M E N T

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Liu, J.A.:

1. The applicant (the Intended Appellant) seeks leave to appeal on what it claims to be a question of law of general public importance under s.35A of the Labour Tribunal Ordinance.

2. It is submitted by Mr Tong, leading counsel for the applicant, that the real point for which leave is sought is one of burden of proof as regards the act of dismissal for the purposes of Part VA of the Ordinance.

3. The applicant's stance taken under Part VA of the Ordinance is as follows:

(1)	S.31Q of the Employment Ordinance raises a presumption that an employee "who has been dismissed" is dismissed by reason of redundancy. Subject to the employer's rebuttal, the dismissed employee is thereupon entitled under s.31B(1)(a) for severance pay because he has been "presumed to have been so dismissed by reason of redundancy" under s.31Q. (Emphasis added.)
(2)	Under s.31B(2), an employee "who is dismissed" under the divers circumstances therein set out is "to be taken to be dismissed by reason of redundancy". (Emphasis supplied.)
(3)	In both (1) and (2) above, the employee must first establish that he is "dismissed", and under s.31D(1)(a), an employee is "taken to be dismissed" if his contract of employment is terminated other than for good cause under s.9.

Mr Tong submits that an employee has the initial

burden to satisfy the tribunal that his contract of employment was terminated and that he has not been dismissed for good cause under s.9.

4. I am told that judicial opinion is much divided. I shall begin with the 1985 judgment of Mayo J in To Kin Wah v. The Shui Hing Co. Ltd. in Labour Tribunal Appeal No. 9/85. The judge decided in favour of what I have loosely described as the employee's initial burden. Mayo J. delivered another judgment for the same reason in Lau Sze-hon v. The Shui Hing Co. Ltd., Labour Tribunal Appeal No. 10/85. In January 1987, in Labour Tribunal Appeal No. 45/85, Mortimer JA, as he now is, accepted the ratio of Mayo J but he concluded that the notice in those proceedings itself provided prima facie evidence of dismissal in the absence of any attempt by the employer to invoke s.9. Later in the same year, in Labour Tribunal Appeal No. 12/87, Barnett J followed the decision of Mayo J.

5. On the other side of the line, placing the burden on the employer is the decision of Deputy Judge Findlay, QC, as he then was, in Chow Koon Shing (trading as Lee Cheung Transportation Company) v. Fan Kok Choy, Labour Tribunal Appeal No. 26/89, the judgment of which was delivered on 10 April 1990. The departure was sought to be supported by, inter alia, the language in s.31C(1) and s.31S(1). The Deputy Judge also observed that only very clear words in an Ordinance could displace the notion that it would be for the employer to justify the termination of a contract of employment. A like approach was adopted by Rhind J in Wan Hung Shu (trading as Paris Wan's Company) v. Li Chun Lam, Labour Tribunal Appeal No. 31/93, the judgment of which was given on 21 December 1993. See [1993] 2 HKC 714.

6. Such onus of proof clearly requires to be settled as a matter of general public importance.

7. I grant leave to the applicant in terms of the revised proposed Notice of Appeal submitted on 22nd March 1995.