ALLIDEM MAE G. v. KWONG SI LIN

HCLA 35/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 35 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 1513/2002)

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R U L I N G

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1. This is a Labour Tribunal appeal. What is at issue is whether the domestic maid, the Claimant in the proceedings below, was summarily dismissed by her employer pursuant to s.9 of the Employment Ordinance (Cap. 57) for cause, or whether she was dismissed by payment of wages in lieu of notice pursuant to s. 7.

2. The Presiding Officer ruled in favour of the Claimant against which the Defendant has obtained leave to appeal.

3. According to the facts, at 6:15 a.m. on the day of dismissal, the husband of the Defendant told the maid that she was dismissed. According to a statement made by the husband which was before the Tribunal, he said he told her that she was "summarily dismissed" because of her unsatisfactory performance and so forth. Both the Defendant and her husband who is in Court to assist his wife maintain before me that according to the best of their recollection, while in oral evidence before the Tribunal, the husband maintained that he told the maid that she was summarily dismissed.

4. The twist in the present case was that three hours later when the maid had finished packing her things, the husband gave the maid a prepared letter setting out all the unsatisfactory aspects of the maid's performance of her job, and giving the maid a sum equivalent to one month's wages "in lieu".

5. The Presiding Officer was of the view that this letter showed the true character of the dismissal, i.e. a dismissal by payment of wages in lieu of notice, he having construed the words "in lieu" as meaning in lieu of notice. He therefore ruled in favour of the maid in respect of her claim for long service payment, she having worked for the couple for over nine years.

6. The Presiding Officer did not, so far as I can see from his reasons for decision, specifically make any finding as to the time at which the contract of employment was terminated. It has become clearer during today's hearing that the precise time of determination of the contract of employment may potentially have a great impact on the outcome of this case. For it must be remembered that the husband told the maid that she was dismissed at 6:15 a.m. and the letter together with the one month's payment did not come until three hours later. So if the maid was effectively and instantaneously dismissed at 6:15 a.m. and if the dismissal was one done pursuant to s. 9 of the Ordinance, i.e. summary dismissal, then arguably the letter which came three hours later might not be effective in changing the true character of the dismissal which took place three hours earlier, or put another way, it could not be used as an aid to find out the true nature of the dismissal which took place three hours earlier, assuming that the Tribunal was correct with its reading of the letter.

7. Of course in saying that, I am fully aware of Mr Collins' counter-argument in this regard which is also a respectable argument that one must view what took place that morning as a whole, and avoid falling into the pitfall of looking at what happened that morning in a piece-meal fashion. As I said, that is a respectable argument, but without being able to conclude that the argument must be correct at this stage of the hearing, the question still remains as to when exactly the termination of contract took place and if it took place at 6:15 a.m. that morning what was the true character of the termination. In determining the true character of the termination, assuming that the termination took place at 6:15 a.m., what was actually said by the husband to the maid would, so it seems to me, be of crucial importance, subject also of course to Mr Collins' argument about looking at the events that morning as a whole which I have already alluded to.

8. As I have mentioned, the husband said in a statement which was put before the Tribunal that he actually told the maid that she was "summarily dismissed". The Defendant also maintains at this morning's hearing that according to her best of recollection and according to the best of recollection of her husband, the husband said the same thing in oral evidence before the Tribunal. If that was correct, then given the Tribunal's rejection of the evidence of the maid regarding what was actual said at around 6:15 a.m. that morning when she first learned that she was fired, an arguable case, putting it at the lowest, could be mounted on behalf of the Defendant to the effect that the termination took place at 6:15 a.m., and regardless of the true construction of the letter which did not surface until three hours later, the true character of the termination was a termination under s. 9 of the Ordinance, namely, summary dismissal. Whether there was any ground to support a summary dismissal is quite another matter, which has yet to be decided by the Tribunal, assuming that the Defendant is successful with the present appeal.

9. It is true that in the reasons for decision given by the learned Presiding Officer, he said in paragraph 16 that he found that neither the maid nor the husband was able to recall exactly the conversation on the morning in question. Yet, he went on to say that he "accepted" that the husband told the maid to the effect that she was "dismissed immediately", and she had to leave later after packing. Given what the husband said in his statement and given what he allegedly said by way of oral evidence before the Tribunal, the "acceptance" by the Presiding Officer of what Mr Lam said about immediate dismissal could, depending on what actually was said, be viewed as the Presiding Officer's acceptance of what Mr Lam said he had actually told the maid to be true, there being a doubt, in my mind, regarding whether the Presiding Officer was fully aware of the crucial yet subtle distinction between dismissal immediately and summary dismissal, and the crucial importance of the actual words used by Mr Lam at 6:15 a.m. Of course, I may be right and I may be wrong with my reading of his reasons for decision - that is subject to argument.

10. All the above is mentioned not for the purpose of pre-judging the outcome of this appeal as to which I still need to hear full submissions from both parties, but only to explain why, in my judgment, this hearing cannot be safely proceeded with without first obtaining the transcript of the evidence placed before the Tribunal, and in particular, what actually did the husband say in the Tribunal about what he had told the maid on the morning of dismissal.

11. In this regard, I should also note the position of the Defendant, i.e. that she is not prepared to concede that when her husband told the maid that she was dismissed, he did not tell her that she was summarily dismissed. In other words, the Defendant maintains as one of her points in this appeal that the dismissal was effected at 6:15 a.m. and the husband actually told the maid that she was summarily dismissed, and thus a case under s. 9 of the Ordinance, in which case no long service payment would be payable, assuming that there was or there were grounds to support the summary dismissal under s. 9 of the Ordinance.

12. I believe I have clearly explained why the present hearing of the appeal has to be adjourned in order for the transcript to be obtained. I have come to this conclusion rather reluctantly, because I do share the parties' anxiety to hear and conclude this appeal as soon as possible. But given the issues between the parties which are by no means easy and are indeed rather tricky, I am afraid there is no alternative but to adjourn this appeal in order for the transcript to be obtained. To play safe and given that there were only three witnesses before the Tribunal, I would order that this hearing be adjourned to a new date to be fixed pending the obtaining of the full transcript of the hearing before the learned Presiding Officer. Estimated time: one day. Costs of the adjournment be reserved.

13. As far as the costs of obtaining the full transcript is concerned, I further direct that they should be paid for by the Defendant at the first instance; of course, they would form part of her costs of this appeal and therefore would be subject to any cost order by the court at the conclusion of this appeal depending on the outcome. And I further order that the Claimant's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91).