FONG YEE DUNG v. SWIRE PROPERTIES MANAGEMENT LIMITED

IN THE SUPREME COURT OF HONG KONG

Labour Tribunal Appeal No.96 of 1995

(On Appeal from Claim No.E1234 of 1995)

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J U D G M E N T

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1. This is an appeal by the appellant against the dismissal of his claim by the learned presiding officer.

2. The appellant's claim is for wages in lieu of notice, annual bonus and long service payment. It is the appellant's case that he was wrongly dismissed by his former employer, the respondent, in this case. He was employed as a senior caretaker, looking after the properties managed by the respondent. The incident that led to his dismissal occurred on 12 August 1994.

3. On that day, the appellant was assigned the duty of building patrol. That meant he would have to take the lift up to the top floor and walk down 30 storeys. On the way, he would have to sign on registers and also to clock-in. He refused to perform that duty and asked for permission to perform other kinds of duties.

4. He alleged, in his witness statement, the reason was because he suspected he was suffering from an onset of symptoms of his high blood pressure. He was found, by a doctor during a medical examination - evidenced by a medical certificate dated 2 August 1994 about a fortnight before the incident - to be suffering from a sudden elevated blood pressure coupled with dizziness and drowsiness on that day. He was recommended to receive further treatment.

5. He alleged that, because of the symptoms he was suffering on that day, it would be dangerous for him to perform building patrol. He claimed that he might faint whilst patrolling the floors and would not have been discovered by anyone before he could be resuscitated; and this would be injurious to his health.

6. There were also allegations against the appellant for physical violence or attempts of physical violence consequential upon arguments arising from this request.

7. Thereafter, the defendant went to consult the company doctor, or a doctor - it is not very clear from the evidence whether he was the company doctor, but I am given to understand, by the appellant today, that he was the company doctor, the same doctor as before. There was ambiguous medical evidence produced as to the result of this consultation. It was, however, clear he was not given any sick leave. He had to return to work after this medical consultation and perform the duties assigned.

8. About a fortnight later, the company dismissed him for what happened on that day. The reason for dismissal was a failure to obey a reasonable and lawful order and instruction of the employer.

9. The learned presiding officer disbelieved the allegations of the appellant. He came to the conclusion that the appellant simply found the duty not to his liking and wished to be exempted. He did not accept the allegation that the appellant was medically unfit to carry out the duty. He was satisfied that the alleged hypertension was merely put forward as an excuse to evade undesirable work. And he came to the conclusion that the appellant attended the doctor later on the same day, only to attempt to get some medical evidence to justify his earlier stance and behaviour. And he found that the attempt turned out to be in vain and the appellant had no choice but to return to work as assigned. In short, the learned presiding officer refused to accept that the appellant had any reasonable excuse to disobey the instruction given on his assignment of duty.

10. Leave was given to the appellant to appeal on five grounds. Firstly, that the learned presiding officer did not adequately consider all the medical certificates and medical records as admitted by the defendant in their statement.

11. Secondly, the presiding officer did not adequately consider the inconsistencies in the evidence of PW2, 3, 4 and 5, as to the alleged attempt to strike PW2.

12. Thirdly, the presiding officer did not adequately consider the evidence of CW2, that the appellant did not carry any walkie-talkie when he argued with DW2.

13. Fourthly, the presiding officer did not adequately consider the appellant's good record and the character of the defence witnesses.

14. Fifthly, the presiding officer should not have, in all the circumstances, accepted the evidence of the defence witnesses.

15. It appears to me that the thrust of the grounds of appeal centre on a failure on the part of the learned presiding officer to adequately consider the evidence before him, thereby leading him to a wrong conclusion on the evidence that is against the weight of such evidence.

16. On the first ground of appeal concerning the medical evidence, the only medical evidence placed before the tribunal is as follows :

17. Firstly, it came in the form of oral testimony and, insofar as the appellant is concerned, from what he alleged in his witness statement, which he adopted as his evidence at the hearing. In there, he alleged his problem arising from high blood pressure and how dangerous it would be for him to perform the assigned duty. He did not mention at all anything about pains in the leg. During the trial, he put to his own witness that he did allege that he was feeling dizzy and had a pain in the leg when he was arguing with his superior Mr YIP. His witness, who said he was there almost from beginning to end witnessing the incident, said he did not hear that.

18. The defence case was that the appellant did not mention he was feeling dizzy, he only claimed to have a pain in the leg. Evidence in respect of his medical condition also came in the form of medical certificates and/or chits. I have already mentioned the medical chit dated 2 August 1994 from the company doctor. The appellant produced two further medical chits, one dated 10 July 1994 certifying that he was suffering from certain respiratory infection on 12 August 1994. The year written on the medical chit was not very clear, it could have been dated 10 July 1995 rather than 10 July 1994 because if it was dated 1994 it could not have certified a future event. There is an ambiguity as to the precise year.

19. The second medical certificate produced by the appellant was dated 14 September 1994, after the incident, which certified that the appellant was suffering from hypertension and was on regular medication.

20. That was the sum total of medical evidence in respect of the health of the appellant at around the material time. I am unable to see how that evidence would justify a complaint that the finding of the learned presiding officer is faulted. There is simply no independent medical evidence to establish that the appellant was, in fact, suffering from dizziness on the day in question. Even if one takes the ambiguous medical certificate to be dated 10 July 1995, certifying that he was suffering from upper respiratory infection on 12 August 1994, that does not help the appellant in his allegation that he was suffering from symptoms of high blood pressure with the associated hazard and risk to health in performing building patrol.

21. Taken at its highest, the certificate verifying a respiratory infection could hardly be sufficient to substantiate an allegation that it would be hazardous to his health to perform the assigned duty to the extent claimed by the appellant. I cannot find any merit in the first ground of appeal that the learned presiding officer failed to adequately consider all the medical certificates and medical records, as admitted by the defendant in their statement. The only medical record admitted by the defendant, in their own statement, is the one relating to July 1994 about the high blood pressure of the appellant on that day. It only purports to substantiate the symptom of dizziness and drowsiness on the date of the medical certificate, and that is 2 August 1994. This is in contrast with the subsequent certificate relating to 12 August 1994, the date in question, where the only problem diagnosed by the doctor was an infection to his respiratory system. In the premises, there is nothing of substance in this ground of appeal.

22. I do not find it necessary for me to go to grounds two, three and four of the grounds of appeal. They all relate to the allegation of physical violence that had erupted after the initial disagreement between the appellant and Mr YIP.

23. Firstly, that was not the reason for the dismissal of the appellant. Secondly, even if the learned presiding officer was wrong in respect of his findings relating to that incident, it could not help the appellant to substantiate his excuse on medical grounds in disobeying the instruction.

24. The appellant had the burden of establishing a reasonable excuse in not obeying prima facie lawful and reasonable instruction of the employer. Even if the learned presiding officer rejected the evidence of the defence witnesses, it would still be up to the appellant to justify his refusal to carry out his duty on that day. The quality of evidence he adduced in support of that claim is far from being satisfactory. The appellant was not able to explain why he could not have adduced independent medical evidence, from the doctor in question, to verify and support his claims of physical discomfort on that day.

25. Upon enquiry, the appellant was not able to confirm, if given the chance now, he can adduce better medical evidence. He only confirmed he can try to obtain better medical evidence from the company doctor who examined him on the day of the incident. It is not sufficient to enable the court to give him a second chance, in the form of a re-hearing, to enable him to adduce fresh material evidence. It is not known if, given such an opportunity, such evidence would be forthcoming.

26. For reasons given above, I am unable to find any fault in the judgment of the learned presiding officer and the appeal must be dismissed accordingly.

27. I have not mentioned ground five of the appeal because it relates to a complaint that the presiding officer should not have, in all the circumstances, accepted the evidence of the defence witness. I have already dealt with this point when dealing with the other grounds.

[Submission on costs]