CHIN KAM MING v. WONG KWAN t/a SUN SING BARBER SHOP

IN THE SUPREME COURT OF HONG KONG

MINOR EMPLOYMENT CLAIM APPEAL NO. 10 of 1995

(CLAIM NO.MB 1443 of 1995)

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JUDGMENT

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1. The only issue in this appeal is whether the worker (i.e. the Claimant) is entitled to one month wage in lieu of notice. On 21st August 1995 there was an argument between the worker and Mr Yiu, the manager of the Defendant employer. Mr Yiu gave instructions to the workers of the barber shop forbidding them to go out to place bets during working hours. Another co-worker intervened and the worker got into argument with the co-worker. According to Mr Yiu, the worker then said he would chop someone and went into the kitchen. Mr Yiu followed him into the kitchen but it was accepted that the worker did not pick up the knife, when the worker came out of the kitchen, Mr Yiu told him to leave the employment immediately. Mr Yiu said he dismissed the worker because he was "violence prone".

2. The Adjudication Officer's finding was that the worker did say that he would chop someone but the words were said during a heated argument without evidence that anyone was so threatened, frightened or actually wounded. He said this isolated event was not a sufficient ground for dismissing the worker summarily. He awarded the worker one month's wage in lieu of notice.

3. The principle to be applied is set out by the Privy Council in Jupiter General Insurance Co. v. Shroff [1937] 3 All E.R. Annotated 67 :

"On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. SIR JOHN BEAUMONT, C.J., was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded. Placing, however, all proper weight on these considerations, their Lordships have yet to determine, in view of the facts found by the trial judge, apart, of course, from the vital finding that the circumstances justified dismissal, whether the misconduct of the respondent was not such as to interfere with and to prejudice the safe and proper conduct of the business of the company, and therefore to justify immediate dismissal. It must be remembered that the test to be applied must vary with the nature of the business and the position held by the employee, and that decisions in other cases are of little value."

4. Each case depends on its own facts. While the words were said in the heat of the argument, they were not merely "regrettable words". The words connote a threat of violence accompanied by the action of going into the kitchen where the knife was located. In my view the misconduct was such that an employer could not fairly or reasonably be expected to submit to, or to continue a person in his employ after the misconduct. The employer was entitled to summarily dismiss the worker and the award for one month wage in lieu of notice has to be set aside.