CHEUNG CHI LEUNG v. YAU WAH PLASTIC MOULD FACTORY

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 149 OF 1995

(ON APPEAL FROM CLAIM NO. E2829 OF 1995)

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J U D G M E N T

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1. Now, there are several issues of fact which were not resolved by the presiding officer. So these issues of fact are not for me to resolve because this -- the court, sitting here hearing the appeal, I have only to decide on questions of law and not on questions of facts which are normally decided by the presiding officer.

2. The first issue that was not resolved was whether the factory in China belonged to the appellant because, according to the appellant, the factory belonged to another company, but according to claimant, it belonged to the same company. So this question is crucial in order to determine whether the kind of work in which the respondent was employed, had been reduced. And that question is relevant to the issue of whether or not the respondent should be entitled to redundancy payment.

3. The second issue of fact which had not been resolved, was the kind of work that the respondent was required to do at the factory in Hong Kong after he came back from China, when the factory had been burned down. This is relevant because the respondent was paid monthly salary, and he was employed on the same terms after he returned from China. So this continued until May '94 and, if that is correct, then he had not been dismissed. So he only left in September because he had to attend to his own work and he changed his terms of employment in May '94 because he needed more time to attend to his own business.

4. If that was the case, the appellant had not been dismissed, and there was no dismissal by reason of redundancy. In that case then, he should not be given any redundancy payment. On the other hand, the appellant said the nature of work he was required to do after he came back from China, when the factory there had been burned down, was some sort of finishing the work which has been left and also disposal of the machinery in the factory which has been burned down.

5. So that during this period of August to May '94, he was not doing the original kind of work he was employed to do. So if that be the case then, of course, then the nature -- the requirement for mould-making workers, by the appellant, might have been reduced, or likely to have been reduced. And he left in May '94 because there was no longer any such work for him to do. That would amount to a constructive dismissal.

6. So it all depends on which version of fact that is found by the presiding officer after hearing the evidence. But there is no finding in the reasons for decision in this respect. So this is another issue of fact that has to be resolved by the presiding officer.

7.  So in the circumstances I allow the appeal and make an order that the case be remitted to the presiding officer for a retrial on these issues. No orders for costs.