YING KEE SAFES AND FURNITURE LIMITED v. WONG YAM TAK

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO.105 OF 1995

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO.ST653 OF 1995)

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R E A S O N S

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1. This is in appeal by Ying Kee Safes and Furniture Limited, ("the Defendant"), against the award made by the Presiding Officer on 26th July 1995 in favour of Wong Yam Tak, ("the Claimant") who was summarily dismissed by the Defendant without notice or payment in lieu of notice. The Claimant lodged a claim for and was awarded a sum of $83,000 odd in respect of wages in lieu of notice, pay instead of annual leave and long service payment. At the hearing of the appeal, I allowed the appeal. The reasons appear below.

2. The Defendant's case is that it was entitled to summarily dismiss the Claimant. In essence, the submission is that the evidence showed that the Defendant was persistently late for work; he disobeyed a lawful and reasonable order to arrive punctually for work; and his attitude towards his employer was incompatible with an employer-employee relationship. The Defendant submitted that the learned Presiding Officer erred in law in finding that there were no fixed working hours, in failing to take into consideration the Claimant's failure to obey a lawful and reasonable order; the cumulative effect of the Claimant's persistent and repeated lateness; his attitude towards his employer, and in concluding that the Claimant's conduct was not of such a grave and weighty character as to amounting to a fundamental breach of the contract of employment warranting summary dismissal.

No fixed working hours

3. The learned Presiding Officer found that there were no fixed working hours and that provided the Claimant finished his assignments, he could call it a day. Implicit in this finding is that the Claimant did not have to report to work at a specific time. The only evidential support for this is the Claimant's evidence to the effect that :-

"[it is] not important when to report to work. What is important is that the work for the day is done."

4. However, the Claimant accepted that in July 1994, his superior Mr Tsui spoke to him about his being "late" and that Mr Tsui had warned the Claimant not to be "late". The Claimant also accepted that from July to December 1994, he was "late" from time to time. There is also the fact that in December 1994, the Defendant had introduced a punch card system. The Claimant agreed that he was told that card punching was necessary and that the purpose of punching the card signified that the worker was reporting to work. Notwithstanding the new system which was designed to monitor the punctuality of the workers, the Defendant was "late" on many occasions. Exhibit D3 is a copy of the Claimant's clocking-in card. This appears to relate to the month of January 1995. Leaving aside the several occasions when he was late by only a few minutes, it showed that the Claimant was late 6 out of 15 working days or at least 40% of the time.

5. Implicit in the concept of being late for work is an acknowledgement that there was a time at which one had to arrive at work in order not to be late. If it was indeed the case that the Claimant could arrive at whatever time he chose, he would never be "late". There is also the fact that the Defendant had introduced a clocking-in system. If there was indeed no fixed time for the workers to report to work, why was such a system introduced? Further, the Claimant was warned about his lateness. This would make no sense had he not been obligated to report for work by a particular time. The learned Presiding Officer's finding that there was no fixed hours in the employment contract is plainly contrary to and unsupported by the evidence.

6. As a matter of law, lateness has been described as absence without leave for the period between the time the employee is required to arrive and the time he actually does arrive. It is a species of unauthorised absence and is misconduct. It constitutes misconduct whether or not the employer's business suffered from the employee's lateness. (see Employees' Misconduct by Alfred Avins pp.8-9).

7. I now turn to consider the matters which the Defendant submitted the learned Presiding Officer had failed to take into consideration and their relevance.

(a) Failure to obey a lawful and reasonable order

8. Although there is a conflict of evidence as to whether or not the Claimant received a warning letter, it is not disputed that he was warned about his lateness on 18th July 1994 at a meeting with Mr Tsui, the supervisor. The warning was thus an order to report to work punctually. As such, it was a lawful and reasonable order. It is again common ground that subsequent to that warning, the Claimant was late for work from time to time. In December 1994, the Claimant and his fellow workers were all required to clock-in, in other words, to arrive for work punctually. As noted above, notwithstanding this requirement, the Claimant persisted in being late on many occasions.

(b) Persistent and repeated lateness

9. There is no doubt that the Claimant was persistently late in reporting to work and that his lateness was not an isolated occurrence: between July and December, he was late from time to time and in the month of January 1995, the Claimant was unacceptably late for at least 40% of the time.

(c) The Defendant's attitude

10. On the occasion in July 1994 when the Claimant was warned, the learned Presiding Officer found that there was "an outburst of words" by the Claimant resulting in a report being made to the police but did not go further to make any finding that the Claimant was abusive and threatened physical violence as alleged by the Defendant. Whether or not the evidence justified such a finding, the more important consideration is the Claimant's attitude towards his being required to be punctual. Not only was he unco-operative in that regard, it is fair to say that he totally ignored his employer's orders to arrive at work punctually and considered it to be his decision rather than employer's as to when he should report for work.

11. As a matter of law, wilful disobedience of a lawful and reasonable order shows a complete disregard of a condition essential to the contract of service so as to warrant dismissal. See Laws v. London Chronical Limited [1959]2 All ER 285 at 287E-G; Pepper v. Webb [1969]2 All ER 216 at 218 D,I; and Section 9 of the Employment Ordinance, Cap.57.

12. Further, whilst an isolated incident of lateness may not warrant dismissal on the particular facts, persistent and repeated lateness is quite a different matter. Persistent lateness that had been warned against has been held to be a sufficient ground for summary dismissal by reason of disobeying a lawful order. See Keung Man Lan v. Oceanic Universal Garment Manufacturers Co. Ltd, LTA No.796 of 1986, quoted in Downey's Employment Ordinance. An Annotated Guide at p.42: Kwan Hang-Ching v. So Ching trading as South Sea Co., LTA No.12 of 1987.

Conclusion

13. In considering whether the conduct of the Claimant justified summary dismissal, one has to look at the totality of the evidence. As noted above, whilst an isolated incident of lateness may not justify dismissal, repeated and persistent lateness assumes misconduct of a different character, particularly where the employee has been warned. Such disregard of lawful orders is a deliberate flouting of the employer's authority. In effect, the Claimant's position is no less than that he was free to come and go as he pleased provided he completed each day's assignments. That, as explained above, is contrary to the evidence. He was neither an independent contractor nor the owner of the business who might conceivably be in a position to adopt such a stance.

14. Those matters coupled with the Claimant's attitude to his employer struck at the heart of the employer-employee relationship.

15. Insofar as it formed part of the learned Presiding Officer's decision that the Defendant had waived its right to dismiss the Claimant, that finding is wrong as a matter of law. The warning cannot be viewed in isolation but must be viewed in context over a period of time which must include the clocking-in system and the persistent lateness that occurred in the month of his dismissal which conduct can only be described as egregious.

16. In the circumstances I am satisfied that the Claimant's conduct was such that the Defendant was justified in summarily dismissing him. Accordingly, this appeal is allowed with costs, such costs to include the costs of the application for leave to appeal.