SIN BIK YIN v. CARAT JEWELLERY LTD

HCLA49/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 49 OF 2004

(ON APPEAL FROM LBTC 10418 OF 2003)

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J U D G M E N T

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1. The appellant was dismissed by the respondent company on 8 October 2003 and, according to the company, the appellant was an accounting clerk and she had made mistakes in the past concerning MPF calculations.   As a result of that, the company had been fined. 

2. On 8 October 2003, the appellant had a telephone conversation with a senior executive of the company, Mr Ko, who was in India.  He inquired whether there was any withholding of cheques in respect of two named employees in respect of which he had given earlier instructions not to release the cheques.  The appellant then said, “No, I have not” and Mr Ko obviously was very upset, and the appellant asked Mr Ko : “Are you dismissing me?”  Then, according to the appellant herself, Mr Ko said, “Yes”.

3. The cumulative effect of the mistakes of the appellant as found by the presiding officer amounted to misconduct and disobedience of reasonable order and, therefore, the employer company is entitled to dismiss the appellant on section 9 of the Employment Ordinance. 

4. The only trouble began after six days.  The company, by e-mail, on 14 October 2003, after stating that “The employee has low efficiency, lack of responsibility and the results were not satisfactory and after repeated warning there was no improvement and therefore this company had no choice but to dismiss you on 8 October 2003”, the company also said that “According to the labour law, we will give you one month’s salary in lieu of notice”.  That, apparently, would have the effect of a section 7 dismissal.

5. I am afraid after considering the whole case, that was a mistake of the company.  They were being generous.  I have referred to some of the decided cases and some of them said the company had received legal advice and therefore acted accordingly.  There was no evidence in this case that the company had received any legal advice.  There was a misconception of the law, and they have, in my view, generously given one month’s salary to the employer after they had stated that they were dismissing the employee, which amounted to a summary dismissal.

6. I cannot, in such circumstances, say in this case as found by the presiding officer it is a section 7 but not a section 9 dismissal.  The evidence is so clear, even from the admission of the appellant.  I cannot accept that the appellant can, so to speak, rely on the generosity of the employer and say in that case it is a section 7 dismissal when she was given more than she deserved.

7. The second dispute between the parties was concerned with sick leave.  On 7 October 2003, the appellant was given a sick leave certificate by a registered medical doctor.

8. As admitted by Mr Lawrence Ng, counsel for the respondent, the appellant went back to the office to work at 9.59 a.m. on 8 October.  I accept his submission that it is not a sick leave day as defined under section 2 which means “a day on which an employee is absent from his work by reason of his being unfit, therefore, on account of injury or sickness”.  There was no evidence — and the appellant did not say so in the court below — that she had told everyone, or her senior, that she was sick, but she came back to work anyway.  She was therefore not absent from her work because of sickness.  On the contrary, she reported to duty at 9.59 a.m.

9. The appellant did not claim sick leave allowance for 8 October and the company paid her working-day wages for that day.  In other words, the respondent’s witness, Chong Si Si, also clearly said that on 8 October when the appellant was dismissed she was still working at the office.

10. The only irresistible inference was that the appellant, after she was dismissed, went to see a doctor and obtained a sick leave certificate and only gave it to the company the next day on the 9^th.  The clear evidence was by then Mr Ko had already dismissed the appellant over the phone in the morning.  Even the appellant admitted that she only gave the sick leave certificate dated 8 October 2003 to Wong Siu Hong on 9 October.  That was also the finding of the presiding officer.  Mr Ko also said that the appellant did not ask him for sick leave on that day when he dismissed her.

11. Mr Lam, for the appellant, submitted that if an employee reported for duty and only got sick sometime later, the employer then said, “I know that you are sick but I’m dismissing you under section 9 for misconduct”, this would amount to dismissing an employee whilst he was sick.  But this is a quite different scenario.  Mr Ko did not know the appellant was claiming sickness.  There was no evidence.  In fact, the evidence was to the contrary, and that is Mr Ko dismissed her for her cumulative misconduct.

12. The question now is this : can an employee, after reporting to work, dismissed under section 9, then go to see a registered medical doctor, complaining of, say, headache, and get a medical certificate to that effect and then turn around and say, “You are dismissing me.  However I know I am on sick leave and therefore every provision in the Employment Ordinance concerning sick leave and dismissal would then be effective.”  I am afraid that should not be the intention of the legislature.  The legislation protects the employee and also the employer.  This will be an abuse of the provisions.

13. I agree with Mr Ng that the irresistible inference from the above evidence was that the appellant reported to work at 9.59 and it was only after she was dismissed that she obtained the sick leave certificate dated 8 October and gave the sick leave certificate to the respondent the next day, by which time she had already been dismissed.  Therefore, the appellant cannot turn a working day into a sickness day by obtaining a sick leave certificate after she was summarily dismissed.

14. Accordingly, the claim for sick leave allowance from the 9^th to the 18^th, although supported by the various medical certificates of various medical practitioners, could not be allowed.

15. The appellant agreed she was told that she is entitled to a statutory holiday for 4 October in full, even though the presiding officer only awarded half a day.  That is not a bone of contention.

16. Further, the appellant is not entitled to extra seven days’ wages, nor severance pay.  There was also a claim for terminal payments under section 32 and I was referred to section 32A, but I consider that section 32A is not applicable because 32K clearly stated that the conduct of an employee should be taken into consideration, and the conduct as found by the presiding officer warranted summary dismissal and there is no issue therefore under section 32P for an award of compensation. 

17. I will also state clearly that Mr Lam has so ably argued that under the sick leave provisions, 32, 33(4)(c), the employer after the termination should also, notwithstanding the termination of the contract of employment, pay to the employee sickness allowance for the total number of sickness days in respect of which an employee would have been entitled to be paid sickness allowance under sub-section 4 and that was as if the contract of employment had not been terminated.  There was no exception under a section 9 dismissal situation.

18. However, starting from 9 October up to 18 October, this is not a continuation of the sickness as provided under sub-section 4(c).  The sickness certificate for the 8th was only obtained after she was dismissed and she did not claim any sickness allowance for the 8^th.  She actually reported to duty.  So there was a discontinuation of this period and, therefore, sub-section 4(c) would not be applicable.

19. For the aforesaid reasons, the appeal is dismissed with costs to the respondent and the appellant’s own costs be taxed according to Legal Aid Regulations.