CHANG KING LEUNG v. BETTER HONG KONG MOVEMENT ASSOCIATION LTD

   HCLA16/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   LABOUR TRIBUNAL APPEAL NO. 16 OF 2009

   (ON APPEAL FROM LBTC NO. 3882 OF 2008)

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BETWEEN

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JUDGMENT

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Background facts

1.  The claimant was employed by the defendant company, who is represented by Dr Yuan Tai Ming, Alexander. The employment started from 3 September 2007 and both parties expected that the employment period should be for one year. The monthly salary was agreed to be $10,000.

2.  In 7 August 2008, the claimant learned from Ms Mak, who is the manager for Dr Yuan, that Dr Yuan’s qualification to run for the Legislative Council had been annulled due to his Canadian citizenship. As both parties expected that the employment period should be for one year, the claimant said to Ms Mak that he did not intend to renew the employment contract. The claimant said that as he had seven days of paid annual leave, he would use this annual leave for the period of 21 to 31 August 2008. In other words, he would leave the defendant on 20 August 2008. Ms Mak said that she will inform Dr Yuan about this and asked what the claimant will do after his employment with the defendant. The claimant said that there were a number of possibilities, including helping other candidates run for the Legislative Council.

3.  About an hour later, Ms Mak gave the claimant and his colleague a cheque as payment for the period of 1 to 7 August 2008. Ms Mak also told them they could leave now.

The claimant’s version of the dispute

4.  The claimant said he saw Dr Yuan at 6:20 pm on the same day. The claimant asked if Dr Yuan was firing him. Dr Yuan replied that he did not want to fire him and that they could talk about it if he wanted to, but he would also allow him to leave immediately if he so wished. The claimant explained that he did not want to leave immediately and before he could better explain himself Dr Yuan became agitated and pointed at the claimant, shouting “我覺得你兩個簡直要piss off”. The claimant quarreled with him afterwards. Dr Yuan subsequently said the claimant could continue working but he had to attend work punctually and use a time card to record his attendance. The claimant agreed.

Ms Mak’s version of the dispute

5.  Ms Mak said that on 7 August 2008, at around 5 to 6 pm, Dr Yuan had a quarrel with the claimant. Before he left, the claimant said, “Outrageous” (“離晒譜”). Dr Yuan later said to her that she might have misunderstood the claimant and that the claimant did not really want to leave immediately. Dr Yuan also told her that the claimant could continue working until 21 August 2008.

Dr Yuan’s version of the dispute

6.  Dr Yuan said that he heard from Ms Mak that the claimant wanted to leave the defendant early by using his paid annual leave as notification period and that he wanted to help other candidates run for the Legislative Council. The election date was fast approaching and he wished to allow the claimant to begin his new employment as soon as possible. He told Ms Mak to hand a cheque to the claimant.

7.  In the afternoon of the same day, the claimant and his colleague asked Dr Yuan if he was firing them. Dr Yuan said he just wanted to give them an opportunity to leave earlier and that he realised Ms Mak might have misunderstood them. He told them that they could continue working but they would have to be more punctual in the future. He said that, “I’m pissed off at you two. You two can do much better.” That was the first time he reprimanded them and they had a heated debate.

Email correspondence between claimant and Dr Yuan

8.  It is undisputed fact that the claimant wrote an email in the night that followed, to Dr Yuan expressing his anger over the word “pissed off”. The email was titled “If you don’t want it becomes (sic) a public letter, please spend some time to read it”. Dr Yuan replied the next morning saying “I apologize for expressing my true feeling. I expect more from you and Nic. You two can be very capable young men. Obviously Della misunderstood you.” The claimant came to work the next day, but tendered his resignation on 11 August 2008.

The finding of facts in the Labour Tribunal

9.  The learned Presiding Officer Mr Mak Kwok Cheung seemed to accept Dr Yuan’s version concerning the dispute. He thought that Dr Yuan was only expressing his anger with the word “pissed off” and that he did not intend to use those words to ask the claimant to leave the defendant. He also found that the words “pissed off” do not amount to abusive language.

Claimant’s ground of appeal

10.  The claimant appears to have a single ground of appeal with two lines of authorities. The first ground is constructive dismissal by breaching “the very root of the employment contract”. The second ground is constructive dismissal by breaching an “implied term of relationship of trust and confidence”. Although technically there were two incidents that could have amounted to breaches of contract, namely the handing of cheques and the use of the words “pissed off”, the claimant seems to rely exclusively on the latter. Therefore, I do not have to consider whether the handing of cheque amounted to a repudiation and whether the claimant accepted it.

Whether “piss off” amounts to abusive language

11.  The learned Presiding Officer decided that “piss off” could not amount to abusive language. He found support form Shorter Oxford English Dictionary, 5^th ed. and held that those words were slang and not suitable for written or formal communication. The claimant criticised the Presiding Officer for using a dictionary to give meaning to those words, he submitted that in a number of English authorities the learned judges did not rely on any dictionary definition. In my view, the approach adopted by the learned Presiding Officer cannot be criticised in any way. The use of dictionary was appropriate in ascertaining whether the words “piss off” as understood by the general public amounted to abusive language. It also supports the learned Presiding Officer’s comment that the claimant has a different meaning of those words from the general public.

12.  It should be remembered that the phrases “pissed off” and “piss off” have two different meanings. The first phrase, which is the one adopted in the Labour Tribunal and this court, means “expression of anger”. The meaning of the second phrase is “asking someone to leave”. Dr Yuan’s version of the dispute is accepted by the learned Presiding Officer, i.e. the first meaning was accepted by him.

13.  Consequently, as found by the Presiding Officer, the words “I am pissed off”, when used in the context as described by Dr Yuan could amount to no more than an expression of anger or disappointment and objectively speaking Dr Yuan did not intend to swear at the claimant. Having so found, that should be the end of the matter. However, the claimant was able to cite a number of authorities to support his proposition.

14.  The claimant relies on Isle of Wight Tourist Broad v Coombes [1976] IRLR 413 for the proposition that an employer’s verbal abuse could breach the very root of the employment contract. However, if one reads the case report carefully, one will find that in paragraph 6 it was held that not only did the employer use the word “intolerable bitch” and “bitch” when addressing the employee, Mr Brenchley of the employer even “thump[ed] on the desk” of the employee. This, in my view, was a much more severe form of verbal abuse. The comment made by Dr Yuan could not come close to the words used in Coombes. I do not consider that that case is applicable.

15.  The claimant also relied on Moores v Bude Stratton Town Council [2000] 1 IRLR 676, where the employer (through a Mrs Parsons) was “intermittently hostile” and addressed the employee as “lying toe-rag” several times, and sometimes the words “lying toe-rag” were spoken in front of the employee’s colleague. Mrs Parsons in that case also instigated an investigation alleging fraud on the part of the employee. The allegation of fraud was cleared in a subsequent investigation but the employee was criticised for “lack of judgment” and received a written warning. That case was of a much more severe nature involving a prolonged history of hostility and great humiliation of the employee and as those features cannot be found in the present case, that case is not applicable to the present case.

16.  The claimant further relied on the case J P King v Webb’s Poultry Products (Bradford) Ltd [1976] IRLR 135 in which the employer used the words “piss off and fuck off”. The court held that there was an unfair dismissal. However the court’s reasoning is based on the employer’s insistence that the employee should go, as reflected by those words but not the abusive nature of those words. At paragraph 19, it was said that :

“He [the employer] did not hit the nail on the head once.  He hit in on the head three times.  The initiative never passed from him to the applicant [the employee]…He pursued him out into the corridor.  He went after him into his office.  He made sure that there was an absolute parting of the ways by keeping his car and taking the keys.’  …if an employer [says]: ‘Very well, we are not going to wait until you do.  You are going to leave now’, he must accept the consequences of taking the bull by the horns because it is the employer who then terminates the contract of employment.”

17.  It is therefore apparent that the case was decided on the basis that the employer should be responsible for taking the initiative of terminating the contract of employment. The same cannot be said of this case, as the claimant does not rely on the handing of cheque to them, there is nothing to suggest that the employer was taking any initiative in terminating the employment.

18.  The claimant also cited a number of authorities related to the law of constructive dismissal. It is unnecessary for me to go through each one of them. Suffice it for me to say that the conduct of the employer is to be judged objectively, as was held in Western Excavating (ECC) Ltd v Sharp [1978] 1 All ER 713. Whatever feelings the claimant might have held against Dr Yuan, I am not satisfied that objectively speaking, the comment made by Dr Yuan could amount to a breach of the root of the contract or a breach of trust and confidence. Therefore I dismiss both grounds of appeal.

19.  The defendant shall have his costs in this appeal, to be taxed by a taxing Master if not agreed.