LAM SIU WAI v. EQUAL OPPORTUNITIES COMMISSION

HCLA 21/2020

[2021] HKCFI 726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 21 OF 2020

(ON APPEAL FROM LABOUR TRIBUNAL

CLAIM NO. 2371 OF 2018)

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DECISION

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1.  This is the Defendant’s application for leave to appeal on points of law against the decision of the Labour Tribunal made on 4 December 2020 with the Reasons for Decision dated 18 January 2021 (“Decision”).

2.  I am satisfied that leave should be granted in respect of the points of law set out in Grounds 1, 2 and 5, and that they are arguable. 

3.  These grounds concern the interface between the contractual right of the Defendant to terminate the employment of the Plaintiff without cause and the common law implied term of mutual trust and confidence: see Johnson v Unisys Ltd [2003] 1 AC 518, §§24, 37-42.  It is not readily apparent from the Decision how that interface was dealt with. 

4.  Ground 3 has been abandoned.

5.  Ground 4 was described as a fall-back to Grounds 1, 2 and 5.  It challenges the factual findings of the Tribunal in respect of the validity of and motive behind the reasons stated in the Letter of Termination.  If Grounds 1, 2 and 5 or anyone of them is upheld, it may render the findings challenged under Ground 4 irrelevant.

6.  I bear in mind the applicable principles summarised in Chen Rongbin v Heng Xin China Holdings Ltd [2020] HKCFI 2744, §§18-23.  Notwithstanding the characterisation that the findings were “preserve and unsustainable”, I am not persuaded that the factual findings are open to challenge.  Leave will not be given on this ground.

7.  The findings were made after evaluation of the oral as well as documentary evidence before the Tribunal.  The Defendant complains that the Tribunal had failed to place proper weight on the contemporaneous documents adduced by it.  However, it was a case where the witnesses called by the Defendant were not parties to the decision making process which led to the Plaintiff’s dismissal.  On the other hand, the Tribunal heard and accepted the evidence of the Plaintiff and her two witnesses.

8.  Ground 6 relates to the requirement to engage the disciplinary procedure prior to the termination of the Plaintiff’s employment.  It is closely related to the issue of contractual termination without cause.  I am also satisfied that it raises a proper point of law and is arguable.

9.  Ground 7 is little more than a challenge to the factual finding by the Tribunal on the issue of failure to mitigate loss raised by the Defendant.  I have examined part of the transcript at the suggestion of the Defendant.  I am unable to agree that a point of law has been properly raised in respect of this finding.  I will not give leave on this ground. 

10.  Accordingly, I grant this application on grounds 1, 2, 5 and 6 only.  Costs should be in the cause of the appeal.  I direct that the bundles should be re-used in the appeal with appropriate modifications.