LAW NGAI MING v. THE KOWLOON CLUB O/B THE KOWLOON CLUB LTD

HCLA 70/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 70 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 926 OF 2002)

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J U D G M E N T

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1. This is an appeal against a decision of Mr Henry Wai as Presiding Officer in the Labour Tribunal. The Claimant was employed by the Defendant as an assistant in the kitchen (the post was called Ordering I). He was summarily dismissed on 27 November 2001. The Claimant considered that his dismissal was unjustified and lodged a claim in the Labour Tribunal. On 12 July 2002, the Presiding Officer dismissed the claim of the Claimant. An application for review by the Claimant was dismissed on 24 July 2002. Leave to appeal was granted by this court on 13 June 2003.

2. According to the written reasons for decision handed down by the Presiding Officer on 17 September 2002, he found that the Defendant was entitled to summarily dismiss the Claimant on 27 November 2001. Hence, the Defendant was not liable to pay the Claimant any wages in lieu of notice nor severance payment / long service payment. Several incidents were taken into account by the Presiding Officer and I respectfully adopt the summary by the Presiding Officer in Paragraphs 9 to 11 of his Reasons for Decision (which was written in Chinese),

“	IV	有關之事件
	9.	2001年11月18日事件：於當日，申索人缺席，但未經過被告公司批准亦未能呈交醫生證明。此缺席行為，本身已構成頗為嚴重之失職。故此，被告公司向申索人發出《犯規通知書》，而申索人亦承認錯誤。此事件會在法庭考慮之內。
	10.	2001年11月21日至24日告病假事件：
		(1)	申索人於上述期間請病假，在2001年11月21日上午將醫生證明交予陳賢昌（三鑊）。根據陳賢昌之證供，當時大廚胡興盛並不在場，故申索人當時並未能將醫生證明親手交給胡興盛。誠然，申索人當時之做法，還有其他選擇，如一直等候下去，直至大廚出現，或交給二廚，或直接將醫生證明交到人事部辦公室。但申索人當時將醫生證明交給陳賢昌，並不可算完全不合理。
		(2)	至於被告公司於2001年11月19日發出有關告假程序之通知（D-6文件），規定：
			「所有中廚部員工如有緊急事故需要告假或身體不適告病假，須於當日指定上班時間前通知行政總廚或副總廚，並得到批准方為有效。員工如沒有給予通知及未獲批准告假而缺勤，將當作曠工論及會被受紀律處分。」
		(3)	惟被告公司並未有將此通告派發予每一位廚房部員工（包括申索人），只是將此通告夾在燒味部的鐵線上面 - 此地方並非一個貼通告通知員工的恰當地方。
		(4)	而申索人於2001年11月21日未有將醫生證明直接交予主管，並無證據顯示為申索蓄意違反公司之指令，故此，此事件並不足以構成有實質重要性之失職行為，對於被告公司是否有權即時解僱申索人，影響不大。
		(5)	此外，被告公司梁依婷小姐曾與申索人討論此事件，但並無證據顯示，在該次討論中，申索人會蓄意再違反公司之指令。
	11.	2001年11月27日事件:-
		(1)	當日大約中午12時30分，申索人離開其工作崗位往洗手間，然後就前往員工之飯堂坐下吸煙及看報紙。當時申索人離開工作崗位，並未有經過主管批准，只告訴其他在廚房的同事會離開工作崗位一會。當時正是中菜餐廳「萬壽菊」之營業時間（開始營業時間中午12時正）。
		(2)	申索人當時在飯堂之舉動，被會計主管胡少強目睹。胡少強即時通知梁依婷小姐，然後亦告訴行政總廚胡興盛，接着三個人走到飯堂與申索對質。之後他們與申索人再到梁小姐之辯公室討論。
		(3)	根據被告公司呈交之訂位紀錄（D-31文件），當日午膳時間共有大約14、15枱已訂位，其中3枱預訂了1時之前。此外，當日打荷二休息，故負責打荷此線工作之人員，只剩下申索人（打荷一）及一名學師。
		(4)	被告公司《員工手冊》(D-23文件) 有關條文如下:-
			“ （廿二）（3）當值工作時絕對不准吸煙，吸煙休憩祇可在員工飯堂或更衣室中進行，但須小心煙頭之擲棄，吸煙後必須洗手再行工作。
			...
			（廿三）職工如有違犯下列店規者，將受懲戒或被革除：
			...
			(7) 故意違背上司命令。
			...
			(14)在工作更期內未能經許可而擅離崗位。
			...”

3. The Presiding Officer regarded the unauthorized cigarette break taken by the Claimant as a serious breach of duty. More importantly, he made the following findings as to the reaction of the Claimant when the management of the Defendant confronted the Claimant about his breach and the general attitude of the Claimant,

“	12	(4)	至於申索人對於梁小姐以及兩位胡先生與他對質之反應，本席接受被告方面證人之口供，即申索人係拒絕承認錯誤，還堅持自己不需要主管批准就可以離開工作崗位吸煙，申索人此行為為蓄意違背被告公司之合法合理之指令，亦顯示申索人並無意圖將來會遵守此指令。
		(5)	至於申索辯稱當時只要沒有工作要做，他便可以離開工作崗位，此講法為絕對錯誤，是否可離開工作崗位，並非由員工決定，而必須要由管理階層及主管去決定。作為一名僱員，申索人一定要受到上級之控制及監管，若果任憑一名員工自行衡量工作量而決定是否可離開工作崗位，則極容易形式失控或混亂之情況；而申索人之態度亦顯示他不願意接受被告公司此方面之指令。”

4. The conclusion of the Presiding Officer was encapsulated in Paragraph 13 of his Reasons for Decision,

“考慮2001年11月18日申索人曠工事件，以及2001年11月27日申索人之失職行為，主要為:-

(1) 擅離職守；及

(2) 申索人對於被告公司管理層質問之態度，顯示申索人會違抗公司之命令。

此等事件之累積效果，構成嚴重失職，故此，被告公司有權即時解僱申索人，而無須給予通知或代通知金，因此，在此情況之下，申索人所有之申索不能夠成功，而被駁回。”

5. The grounds of appeal focused on the incident on 27 November 2001. The first ground could be called the acquiescence point. Based on the evidence of three witnesses, Mr Ng, counsel for the Claimant, contended that the Defendant had acquiesced the practice of cigarette breaks and the Claimant was only acting in accordance with past practice. Mr Ng had taken this court to the evidence of the three witnesses and submitted that in view of the tolerance of the Defendant in the past, it was necessary for the Defendant to give a reasonable warning to the Claimant before the Defendant exercised the draconian power of summary dismissal. He referred to Chitty on Contracts, 28th Edn., Paras. 3-077 and 3-080. He further submitted that because of acquiescence in the past, this case is distinguishable from So Ching v Kwan Hang Ching [1987] 2 HKC 297.

6. I have some doubt whether the evidence of the three witnesses established acquiescence on the part of the Defendant. Acquiescence, as well as forbearance referred to in Chitty, required knowledge on the part of the innocent party and the breach must be of the same nature as previous breaches which had been tolerated. The evidence of Chan Kwok Kit only referred to cigarette breaks taken with the approval of the person in charge or when such person was absent. This was not the case on 27 November 2001. The evidence of Yip Kan Nin showed that the workers did not need to ask for approval of the person in charge to go to toilet and the workers would usually take turn in having breaks. He said the person in charge had not expressly approved. Chan Yin Cheong said the person in charge expected self-discipline from the workers and they would not take such a break when it was busy.

7. The Presiding Officer was of the view that at the material time, there were operational needs for the Claimant to be in attendance (see Paragraphs 11(3) and 12 (1) and (2) of his Reasons for Decision). Hence, the break taken by the Claimant on 27 November 2001 was more serious than a break taken when the restaurant was not busy. On the findings of the Presiding Officer as to the operational needs, notwithstanding the evidence of these witnesses, I am of the view that the management of the Defendant was not acting unreasonably in reprimanding the Claimant for his unauthorized break on 27 November 2001.

8. Further, it is plain that the Presiding Officer did not rely solely on the unauthorized break on 27 November 2001 as justification for summary dismissal. The more serious concern was the attitude of the Claimant when he was confronted by the management and the accumulative effect of other occasions of disobedience in the past. As I observed in the course of argument, even assuming that loose discipline had been tolerated in the past, that does not mean that the management could not make changes to tighten up the discipline (see Ying Kee Safes & Furniture v Wong Yam Tak [1996] 1 HKC 307). If an employee adopts an attitude that since something has been tolerated in the past the employer must continue to tolerate it in the future, he is seriously mistaken. If he persists in following the past practices despite warning from the employer, the employer could regard the same as wilful disobedience.

9. The Presiding Officer clearly took the view that this was what happened on 27 November 2001 when the management sought to reprimand the Claimant about his misconduct. Mr Ng accepted that the management was entitled to demand the Claimant to follow what had been set out in the Employees' Handbook and that was a lawful order. His main argument was that during the course of that conversation, the Claimant was only trying to exonerate himself in respect of that particular incident by reference to past practices without indicating that he would maintain the same attitude as to the future.

10. I do not accept that argument. The finding of the Presiding Officer was that the Claimant's behaviour showed that he had no intention to obey this lawful order in the future (see Para. 3 above). Having considered the evidence before the Tribunal, in particular what were set out in the witness statements of the Defence witnesses (and the Presiding Officer preferred their evidence to that of the Claimant), I am of the view that there was ample evidence justifying that conclusion. According to the evidence of the defence witnesses, the management had urged the Claimant to change from past practices but the Claimant maintained he was entitled to take such a break as in the past. Oral warning was administered by Ms Elaine Leung. The Claimant remained unrepentant. David Woo told the Claimant what had been tolerated in the past did not mean it would be continued to be tolerated. But the Claimant insisted that he was absolutely right. David Woo then said to the Claimant, "If you were not happy in doing your job, you could resign." The Claimant then told the management to fire him.

11. Mr Ng relied on Wilson v Racher [1974] ICR 428 and submitted that what was said by the Claimant at the height of temper could not be a sufficient ground for summary dismissal. The facts of that case are very different. What happened in that case was a solitary occasion and the inappropriate remark by the employee was an outburst after the employer had been provocative from the outset. The employee had tried to advert the situation but, as described by Edmund Davies LJ at p. 433D, "the [employer] continued his gadfly activity of goading [the employee] into intemperate language".

12. The test posed by His Lordship at p. 433E was as follows,

"In those circumstances, would it be just to say that the [employee's] use of this extremely bad language on a solitary occasion made impossible the continuance of the master and servant relationship, and showed that the [employee] was indeed resolved to follow a line of conduct which made the continuation of that relationship impossible?"

13. Unlike the remark by the employee in that case, the attitude displayed by the Claimant at the meeting between him and the management staff of the Defendant showed his refusal to follow lawful instruction in the future. It is more like what happened in the case of Pepper v Webb [1969] 1 WLR 514. Applying the test of Edmund Davies LJ, the Presiding Officer was entitled to conclude on the evidence he accepted that the Claimant was resolved to follow a line of conduct which made the continuation of the employment relationship impossible.

14. Given such findings on what happened during the conversation between the Claimant and the management on 27 November 2001, I do not think the Claimant could complain about lack of specific warning as to possibility of dismissal. Oral warning had been given by Ms Leung albeit not in respect dismissal. But the Claimant continued to demonstrate an attitude of disobedience. Had the Claimant become remorseful when David Woo invited the Claimant to resign, the matter might be different. But the Claimant insisted he was entitled to behave in the future as he had done in the past. There is therefore no merit in Ground 2 of the Grounds of Appeal.

15. I discussed the legal principles regarding summary dismissal in my judgment in Cheung Kin Ming v Yuen Cheong Chan Papermerchants Ltd HCLA 65 of 2001, 10 April 2002, Paras. 13 and 18 to 20. I shall not repeat what I had said. The court has to examine the overall circumstances to consider whether it is a case of wilful disobedience. This was what the Presiding Officer had done in the present case. Although the Presiding Officer did not refer to the acquiescence point in his written Reasons for Decision, given the special facts of this case, I do not think it would make any difference. Even taking into account of the tolerance in the past as testified by the three witnesses, the reaction of the Claimant to the reprimand by the management on 27 November 2001 was still an instance of wilful disobedience. I do not think the Presiding Officer erred in law in any respect in arriving at his decision.

16. The result is no doubt harsh on the Claimant. However, he only had himself to blame by behaving as he did on 27 November 2001. I am sure he regretted about that. But this is no justification for exonerating him from the legal consequences of his own acts. I therefore dismiss the appeal and make a cost order nisi that the Claimant shall pay the costs of the Defendant in respect of the appeal, such costs to be taxed if not agreed.