TSUI KOON WAH v. L&L CONSULTANCY SERVICES LTD

HCLA 21/2023

[2023] HKCFI 3045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 21 OF 2023

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 2243 OF 2022)

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D E C I S I O N

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Introduction

1.  The Applicant (“A”) was employed by the Defendant (“D”) as a legal executive. He claimed that he had been constructively dismissed. He sought severance payment, or alternatively remedy (long service payment) under Part VIA of the Employment Ordinance Cap 57 (the “EO”). Upon set-off of the employer’s MPF accrued benefits, the Applicant’s claim was for HK$1,611.61.

2.  For reasons set out in the Reasons for Decision of 27 July 2023, Deputy Presiding Officer Ng Che Ling, Jennifer (the “Deputy PO”) dismissed the A’s claim, and ordered him to bear costs in the amount of HK$42,416.00 (the “Decision” and “Reasons for Decision”).

3.  Pursuant to section 32 of the Labour Tribunal Ordinance Cap 25, the Applicant seeks leave to appeal against the Decision.

4.  A’s Form 14 comprises, in addition to the top sheet, 6 pages and 20 paragraphs. On 20 September 2023, he lodged his Additional Grounds of Appeal comprising 26 pages and 56 additional paragraphs, with multiple attachments.

5.  When the application first came before this Court for hearing, I ordered and directed that the A should file a consolidated grounds of appeal confined to 10 pages (the “CGA”). He did so on 26 September 2023. It contains 20 grounds.

6.  The Reasons for Decision is in Chinese. However, A’s Form 14, the Additional Grounds of Appeal, the CGA, and his written submissions (“Submissions”) are all in English. In the light of that, I have decided to prepare this Decision in English[1].

The Reasons for Decision

7.  The following paragraphs of the Reasons for Decision are material[2]:

(a)  §4, that D’s case is that it dismissed A because of his conduct;

(b)  §§6 to 11, where the Deputy PO records the development of A’s claim, including A’s applications to strike out parts of the statements of the witnesses D intended to call, and A’s application to summon 18 witnesses;

(c)  §12 to 15, where the Deputy PO sets out and briefly explains the issues, and gives a summary of D’s case, that it decided to dismiss A because of his conduct, which included lateness and failure to fulfill duties;

(d)  §§16 to 17 where the applicable legal principles and cases are discussed;

(e)  §§18 to 23, where the testimonies are analyzed. The Deputy PO finds D’s witness to be honest and reliable witnesses. She also finds the 2 witnesses summoned by A to be credible, and support D’s case. The Deputy PO on the other hand finds that A is not[3];

(f)  §§24 to 27, where the Deputy PO considers the issue of “valid reason” under section 32K of the EO. At §24, the Deputy PO observes that:

“首先，被告公司是按照僱傭合約條款和《僱傭條例》第6條的規定，給予申索人1個月通知將其解僱。被告公司只是在行使法定權利終止雙方的僱傭合約，基本上任何一方都無須說明終止合約的理由，即使僱主是出於不可告人的動機，也可以這樣做：See Sun Zhongguo v. Bank of China Group [2003] 2 HKC 239。”

She further observes that whether the valid reason of “the conduct of the employee” has been established is a factual issue;

(g)  §§28 to 39, where the Deputy PO considers D’s case based on P’s lateness to work. The Deputy PO finds that D was not happy with A’s lateness. In particular, she rejects A’s case that there was any oral agreement between him and Mr Lee (a witness called by D) that A’s time of daily commencement of work had been varied to 10 am[4];

(h)  §40 to 42, where the Deputy PO finds as a fact that “申索人不但無視被告公司準時上班的要求，在執行工作職責方面亦不合作”[5], accepts the evidence of Mr Ng[6] that “實際上申索人是把所有外出工作任務卸给他”[7], and finds that “各證人的證供均反映對申索人工作態度的不滿。基於上述理由，本席接納被告公司對於申索人的行為不滿，絕非缺乏實質性”[8];

(i)  §43 to 47, where the Deputy PO sets out her consideration of the issue relating to the vaccine pass as follows:

“43. 李先生亦指出，因為申索人沒有新冠疫苗醫療豁免證明及疫苗通行證，申索人無法進入法院履行職責。被告公司於第二封警告信提醒申索人，倘若申索人在4月11日前還未能獲取疫苗通行證或豁免證明書而無法履行職責，將被視為故意不服從合理的指令。

44. 申索人的說法是，疫苗通行證事件才是被告公司解僱他的主因。他指出解僱信中，雖然只提及他遲到及未履行職責的問题，但是第二封警告信發出的意圖是因為申索人未獲取疫苗通行證事件，而被告公司因此而解僱申索人。

45. 首先，本席不同意申索人的說法，即解僱的有效主因是接種疫苗問題，而是申索人的工作態度才是解僱的主因，包括屢次遲到且毫無悔意，不合作地於3月28日刪除Whatsapp，以至公司同事更加難以聯絡上申索人。這問題早於第一封警告信時已經提及，再加上申索人經常拒絕執行其職責範圍內之工作；而未有獲得疫苗通行證導致他未能履行其部分職責，本席認為這只是其中一項不當行為而已。事實上，申索人於7月5日所寫給公司信件中亦提到李先生在6月30日再次投訴申索人，指稱他不回覆WhatsApp 訊息，亦沒有接聽電話。

46. 疫苗通行證是香港特別行政區政府於2019冠狀病毒病疫情期間實施的防疫措施要求，申索人說被告公司本可以向法庭申請豁免，但李先生沒有這樣做。僱主是沒有責任向法庭作豁免申請，履行防疫措施要求與否是他個人的責任。

47. 在審訊中亦有充份證據顯示申索人以上的行為導致被告公司與及同事不滿。基於以上所述的，本席認為，被告公司已經有足夠並且實質的解僱理由。”

(j)  §§48 to 54, where the Deputy PO considers A’s case based on alleged constructive dismissal. She summarises A’s case at §49, that:

“49. 申索人依據公司以下的行為指稱遭變相解僱，即(1) 強加疫苗通行證要求與及花園休假構成單方面更改僱傭合約條款，(2) 拒絕讓他進入辦公室工作。”

The Deputy PO then considers the law. Having done so, she concludes at §§52 to 54 that:

“52. 有關疫苗接種是政府的要求，如果申索人不能符合政府的規定，申索人變相無法履行職責。但即便如此，申索人已經於6月30日完成工作交接，在花園休假期內不會再有新的工作，他是否有疫苗接種在當時而言已經不重要。

53. 同樣地，被告公司已經於6月30日通知申索人放取花園休假，明確表示不需要他在通知期間回來工作，本席看不出以上申索人所投訴被告公司的行為，顯示有意圖不受合約之約束。

54. 因此本席裁定，申索人於2023年7月8日的辭職實際上終止了與被告的僱用關係，但是推定解僱並不成立。”

(k)  §§55 to 60, where the Deputy PO considers A’s allegation of dismissal by reason of redundancy. In particular, and on the evidence before her, the Deputy PO finds as follows:

“56. 申索人有一定的法律經驗，但以經驗而言，他的薪金卻相對低於市場水準，李先生說如果不是到了他不能容忍的地步，他不會選擇解僱申索人。本席接納被告公司的證供，證明公司有正當理由下，以一個月通知終止雙方僱傭關係。

57. 李先生的證供亦指出，公司在申索人被解僱後的合理時間內，於2022年8月26日發佈招聘廣告，本席不認為這廣告是虛假的。

…

59. 申索人提到，李先生談到租約期滿後要搬遷辦公地址。本席認為這個證據是中立的，並不指向裁員指控。

60. 基於以上所述，本席認為裁員指控不成立。”

(l)  §65, where the Deputy PO dismisses all of A’s claims;

(m)  §§66 to 71, where the Deputy PO states the reasons for awarding costs against A.

Section 32 of the Labour Tribunal Ordinance

8.  Under section 32 of the Labour Tribunal Ordinance, this Court’s jurisdiction to grant leave to appeal is confined to the Decision being (a) erroneous in point of law or (b) outside the jurisdiction of the tribunal.

The Consolidated Grounds of Appeal

9.  I have considered the CGA. I have considered A’s Submissions. I have also considered his oral submissions made during the hearing.

10.  Grounds 1 to 4 of the CGA concerns the vaccine pass issue. As I have set out above, the Deputy PO on facts rejected A’s case on that basis. No error of law is involved.

11.  Ground 5 of the CGA concerns D’s unilateral imposition of the garden leave. I have set out above §24 of the Reasons for Decision. I have set out further the Deputy PO’s findings on A’s conduct. On the facts, I am not satisfied that the imposition of the garden leave constituted any constructive dismissal. No arguable issue of law is involved.

12.  Grounds 6 and 7 of the CGA are factual. No issue of law is involved.

13.  Grounds 8 and 9 complains about the validity of the one-month notice given by D. A orally supplemented to those grounds during the hearing which I have also considered. There is nothing in it. The termination notice was given pursuant to Clause 10.1 of the employment agreement. It clearly called 31 July 2022 the “Last Employment Date”. Salary was paid up to and including that date. On the facts of this case, I also agree with the Deputy PO’s observations at §62 of the Reasons for Decision, that “即使通知上計算日期有錯誤，也不會導致通知無效”. No arguable point of law is involved.

14.  The case of Ying Kee Safes and Furniture Ltd v Wong Yam Tak (HCLA 105/1995, 1 December 1995) does not, as A claims in Ground 10, recognise or establish any “buffering time of 30 minutes”. No error of law is involved.

15.  Ground 11 is factual. No error of law is involved.

16.  Ground 12 involves the assessment of A’s attendance records. Thomas Vincent v South China Morning Post Publishers Limited (2005) 8 HKCFAR 605 is not engaged.

17.  Clause 10.3 of the employment agreement concerns the circumstances where D can rely on the service of notices as grounds for summary dismissal. I agree with the Deputy PO’s observation at §61 of the Reasons for Decision that “第10.3條是針對即時解僱的情況”, and otherwise does not affect the validity of the reasons under section 32K which D relied upon. Ground 13 is not arguable.

18.  Ground 14 complains that the Deputy PO has failed to consider certain parts of A’s closing submissions. The Deputy PO has no duty to expressly deal with each and every parts of A’s very lengthy submissions. She expressly says at §11 of the Reasons for Decision that:

“11. 本席在作出裁決之先已經詳細考慮了雙方的證人口頭證供，文件證供以及雙方的陳詞，但是本席不會在這裡列出雙方所有的事實爭議，而只會處理與本案爭議事項的判決或事實的裁定有重大影響的事宜。在這裡沒有提到的，並不代表本席沒有作出考慮。”

I am satisfied that she has sufficient considered and dealt with the material points. No arguable point of law is involved.

19.  Grounds 15, 16 and 17 complain about alleged “failure of the administration of justice” arising from certain aspects of the trial on 20 June 2023, and the manners in which certain interlocutory applications made by A were handled. I have considered those aspects, which principally concern manners of cross-examination and submissions, and A’s application to expunge the “Stamped Letter”. I am of the view that the trial has been conducted in manners consistent with section 20 of the Labour Tribunal Ordinance. No arguable issue of law in engaged.

20.  Ground 18 complains about “actual bias” which A says the Deputy PO showed against him. I have considered the matters which P seeks to relies upon. I am not satisfied that any bias is or can be made out.

21.  Ground 19 concerns the redundancy issue. A has supplemented to it during the hearing, which I have also considered. His main complaint is that the Deputy PO has ignored substantive parts of his closing submissions. I repeat §18 above.

22.  Ground 20 complains about the costs order imposed by the Deputy PO. On the facts of the case, and applying the correct legal principles, the Deputy PO was amply justified in ordering that costs should follow the event. I see further no basis to interfere in the assessment.

Conclusion

23.  For the above reasons, I refuse A’s application for leave.

24.  On the basis that the application was an ex parte one, I make no order as to costs.