NG YIN SAN v. WONG PAK SHING t/a C & P Pharmacy

HCLA60/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.60 OF 1998

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J U D G M E N T

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1. The Claimant (Respondent), Madam Ng Yin San, was employed by the Defendant (Appellant), Mr Wong Pak Shing trading as C & P Pharmacy as a Pharmacist since January 1995. Madam Ng was summarily dismissed by the Appellant on 7 March 1997. At the time of her dismissal her monthly salary was $30,000.

2. Towards the end of 1996, the Appellant had turned down a request by the Respondent for a raise in her salary. At about the same time, the Appellant was concerned over the Respondent's attitude towards her working hours as she was frequently late for work and often left early.

3. It is common ground that the Respondent was dismissed by the Appellant on 26 February 1997. She was given one month's notice on the same day and she was required to work until 26 March 1997.

4. On 5 March 1997, the Respondent was warned by Mr Wong to be punctual with her working hours but however, she indicated that she was not bound to follow the standard working hours of the company. The exact circumstance under which the warning was given was not entirely clear from the evidence. On 7 March 1997, the Respondent was late again for work and a warning letter was served on the Respondent by one Madam Kwok. The Respondent became agitated and tore up the letter in front of Madam Kwok and Mr Wong. The Respondent was dismissed by a notice of dismissal which was served on her on the same day.

5. The Respondent brought an action against the Appellant in the Labour Tribunal for wrongful dismissal and for wages in lieu of notice of termination from 8 March 1997 to 26 March 1997 with additional claims under Part 3 of the Employment Ordinance for alleged breaches by the Appellant on the maternity leave provisions. The claim under that head was dismissed by the learned Presiding Officer and it is not the subject matter of the present appeal.

6. After hearing evidence from the parties, the learned Presiding Officer found that the summary dismissal of the Respondent by the Appellant on 7 March 1997 was not justified. He gave judgment for the claim of wages in lieu of notice covering the period from 8 March to 26 March 1997 in the sum of $19,000. Having found that the Appellant was in breach of s.15 of the Ordinance, he also awarded a sum of $7,000 which is the equivalent of seven days' wages.

7. It is against the award of the above two sums that the Appellant now appeals.

8. In my view, this appeal turns on the learned Presiding Officer's finding as to whether in fact a warning letter was served on the Respondent on 7 March 1997.

9. Over several months, the Appellant had been concerned with the Respondent's punctuality at work. If it was a case of occasional minor lateness, the Appellant is not entitled to rely on such episodes as the basis of misconduct in justifying her dismissal under s.9 of the Ordinance. On the other hand, if it is a case of cumulative effect of persistent lateness, the Appellant is not entitled to rely upon such cumulative effect until sufficient warning has been given to alert the Respondent. According to the Appellant, a warning letter was served on the Respondent on 5 March, two days prior to the incident on 7 March. At the hearing the Respondent denied having received the warning letter. The effect of the letter of 5 March, if it was in fact served, would have been that the Appellant was not prepared to forgive the Respondent's conduct. If the Respondent's conduct persisted, then the Appellant would be in a position to rely on such conduct for summarily dismissing the Respondent under s.9. On the other hand, if there was no such warning letter, the legality of the dismissal on 7 March would be questionable. The learned Presiding Officer's finding on this issue would have been crucial to the parties.

10. It is however, unfortunate that the learned Presiding Officer's finding is tainted by ambiguity. At page 4 of the Reasons for Decision, he observed and found :-

"There is a warning letter given in March and she was dismissed on 7 March 1997."

He did not specify whether he was referring to the letter of 5 March or to the one served on the Respondent on 7 March which she tore up. Further down the page, he stated :-

"If DCR were to rely on the lateness in March only, they are not sufficiently serious. I am not satisfy [sic] that Defendant has served the warning letter prior to the dismissal."

As the evidence at the trial suggested there were two warning letters, it is not entirely clear which of the two letters was the Presiding Officer addressing his mind. One such possibility was that he was referring to the letter which was allegedly served on the Respondent on 5 March. But if that was indeed the case, he did not make himself clear. The other possibility was that he was referring to the letter of 7 March. This letter, although torn up by the Respondent, it was nevertheless her evidence that she had read it and disagreed with the contents. Based on such evidence at the trial, it must have been the case that this letter was in fact served on the Respondent. But somehow the Presiding Officer reached the baffeling conclusion that he was not satisfied that the Appellant had served this warning letter on the Respondent prior to her dismissal.

11. The treatment by the Presiding Officer on this issue leaves much to be desired. His finding appears to be entirely against the weight of the evidence and one can only speculate as to how he was able to reach the conclusion as he did.

12. In the light of such irrational finding, I am forced to come to the reluctant conclusion that the decision of the Presiding Officer is both unsafe and unsatisfactory. His award in favour of the Respondent is untenable and I would therefore allow this appeal and set aside the award made by the learned Presiding Officer. I would make a cost order nisi in favour of the Appellant in respect of this appeal.