CHAN WAI MAN v. KA KWOK TRANSPORTATION CO LTD

HCLA 28/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 28 OF 2006

(On appeal from Labour Tribunal Claim No. LBTC 5373 of 2005)

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REASONS FOR DECISION

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1.  The defendant applied for leave to appeal against the award of the Presiding Officer made on 12 June 2006.  After hearing submissions, I refused the application.  My reasons appear below.

Background

2.  The claimant was employed by the defendant as a coach driver as evidenced by a written employment form dated 31 March 1998.

3.  Clause (2) of the written employment form provided that either party may terminate the employment contract by giving 15 days’ written notice or wages in lieu of notice.

4.  It is common ground that in the afternoon of 16 August 2005, a Mr So (蘇健佳) of the defendant orally informed the claimant that his employment would be terminated and that he did not have to return to work after 31 August 2005.  It is also not in dispute that Mr So told the claimant that 8 days of his accrued annual leave would be applied as part of the notice period, and the claimant was instructed to start taking the annual leave on 17 August 2005.

5.  The claimant did not return to the defendant after 16 August 2005. 

6.  It is the defendant’s case that the claimant agreed to the arrangement.  The defendant said that after the 8 days’ annual leave was over, the claimant should have returned to work, but despite a written warning dated 28 August 2005, the claimant did not resume work.  The defendant therefore contended that the claimant had wrongfully absented himself from work and was in breach of the employment contract.

7.  On 19 October 2005, the claimant commenced proceedings in the Labour Tribunal claiming against the defendant (1) wages in lieu of notice, (2) severance pay, (3) as an alternative to severance pay, long service pay, and (4) annual leave payment.  The claim of annual leave payment was settled.  The trial in the Labour Tribunal only turned on the first three heads of claim.  

8.  At the same time, the defendant counterclaimed for 15 days of salary in lieu of notice and over paid salary on the basis that the claimant had wrongfully terminated the employment by absenting from work.

The findings and decision of the Presiding Officer

9.  The Presiding Officer identified the issue to be: whether the claimant had been dismissed and if so, when and how he was dismissed, or whether the claimant had wrongfully absented himself from work. 

10.  The Presiding Officer rejected the defendant’s case that the claimant had agreed to the arrangement of using 8 days of his accrued annual leave as part of the notice period for the termination, or that the claimant voluntarily accepted to start taking annual leave on 17 August 2005.  He disbelieved the evidence of the defence witness, Mr So, on these points.  He held that the claimant was faced with no choice on 16 August 2005 but to proceed to take leave on the following day as told.   He also disbelieved the defendant’s case that a written warning of 28 August 2005 had been issued.

11.  The Presiding Officer applied section 6(2A) of the Employment Ordinance, cap.57, which provided that annual leave to which an employee is entitled shall not be included in the length of notice required to terminate a contract of employment.  He further relied on section 41AA of the Ordinance which required an employer to give no less than 14 days’ written notice of the time he has determined for the employee to take annual leave.

12.  The Presiding Officer held that the claimant’s employment was terminated on 16 August 2005 without proper notice, that the claimant was under no obligation to return to work thereafter and that therefore he was not to be regarded as having wrongfully absented from work. The Presiding Officer awarded the claimant the claim of wages in lieu of notice and severance pay.

The amended grounds of appeal

13.  From the Amended Notice of Application for Leave to Appeal and the submissions advanced at the hearing, the defendant’s intended grounds of appeal are as follows:

(1)	The Presiding Officer failed to consider the validity of the termination of the employment by the defendant.
(2)	The Presiding Officer failed to consider that the claimant did not report to work after taking 8 days’ annual leave and was in breach of his employment obligations.
(3)	The Presiding Officer failed to consider that the claimant is not entitled to wages in lieu of notice and long service pay given that he had misconducted himself by failing to report to work.
(4)	The Presiding Officer erred in applying the case of 王曉秋 v. 救世軍港澳軍區HCLA 27/2005 (unreported), 22.8.2005 in that the claimant in the present case was not left with no choice but to resign.

Reasons for decision

14.  Under section 32(1) of the Labour Tribunal Ordinance, cap.25, decisions of the Labour Tribunal may only be appealed on the grounds that the decision is erroneous in point of law and/or is outside the jurisdiction of the Tribunal.  Accordingly challenges as to findings of credibility and facts are not within the permissible scope of appeals from the Tribunal.

15.  In the present case, the Presiding Officer had found as a fact that the claimant had not agreed to include 8 days of his accrued annual leave as part of the 15 days’ notice period required to terminate the employment.  It is not open to the defendant to seek to challenge this by arguing that the claimant had agreed to the arrangement.             

16.  As noted above, there is no dispute between the parties that Mr So of the defendant had orally informed the claimant that his employment was to be terminated.  Although the defendant purported to give 15 days’ notice in accordance with the employment agreement, the notice was invalid because it was short of the required 15 days.  This is because the defendant is not permitted by section 6(2A) of the Employment Ordinance to include any part of the claimant’s accrued annual leave as part of the 15 days’ notice period.  It therefore follows that the termination on 16 August 2005 was a wrongful termination and a breach of the employment contract between the parties.  There is no arguable point of law involved in the first intended ground of appeal.

17.  The claimant is entitled to accept the wrongful termination on 16 August 2005 as bringing the employment contract to an immediate conclusion.  He is thereby discharged from further performance of the employment.  The fact that he did not report to work after 16 August 2005 does not constitute breach on his part.  Neither can it be regarded as misconduct that justifies summary dismissal.  The second and third intended grounds of appeal therefore do not involve any arguable point of law.

18.  It follows from the above that it is immaterial whether the case of王曉秋 v. 救世軍港澳軍區HCLA 27/2005 (unreported), 22.8.2005 is distinguishable from the present case on the facts.  The fourth intended ground of appeal is irrelevant to the outcome of the claim.

Conclusion

19.  For the reasons indicated above, the defendant has not shown that its intended appeal involves any arguable points of law.  Accordingly, the application for leave to appeal is dismissed.