KARCHOUD, LEILA BENT MOHAMED v. THE INCORPORATED TRUSTEES OF THE ISLAMIC COMMUNITY FUND OF HONG KONG

HCLA 61/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 61 OF 2001

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM
NO. LBTC 9412/2000)

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J U D G M E N T

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1. This is an appeal against the award of the Labour Tribunal on 15 August 2001. The Claimant had been employed by the Defendant as the Headmistress of the Muslim Community Kindergarten since 2 March 1998. Her employment was terminated in August 2000. The Defendant paid her, inter alia, one month's salary in lieu of notice, severance payment, unpaid annual leave, pro-rata bonus when her service was terminated. The Claimant believed that she was dismissed without a valid reason under Section 32K and she lodged a claim against the Defendant in the Labour Tribunal, seeking inter alias, terminal payment under Section 32O of the Employment Ordinance, compensation under Section 32P and order for reinstatement or re-engagement. Her claim was dismissed by the Presiding Officer.

2. In his written Reasons for Decision dated 3 October 2001, the Presiding Officer made the following findings ["the Findings"],

(a) there were frequent disputes between the Claimant and the teachers in the Kindergarten;

(b) there were genuine complaints from the parents against the Claimant on her misbehaviour;

(c) the Claimant forced some teachers to sign a document containing twelve complaints against two teachers;

(d) the Claimant assaulted a teacher on 5 July 2000; and

(e) the Claimant deliberately failed to show up on 8 July 2000 when all parents came to the Kindergarten for school reports and subsequently sent out those reports on 10 July 2000 to the parents without the signature of the supervisor of the Kindergarten.

Based on these findings, the Presiding Officer held that in view of the Claimant's conduct, the Defendant had a valid reason under Section 32K of the Employment Ordinance to terminate the Claimant's employment.

3. Leave to appeal was granted on 30 January 2002. In my written decision of that date, I explained why leave was granted on one ground only. The ground is stated in Paragraph 10 of that decision,

"That the Presiding Officer failed to take into account of the evidence of the Claimant in reaching his decision." ["the Original Ground"]

4. Unfortunately, through no fault of the parties, the appeal could not be heard until 20 December 2002. More unfortunately, the Legal Aid Department initially refused to give approval to the Claimant's lawyers to obtain all the transcripts of the hearings in the Labour Tribunal. Only one day's transcript out of a four days' trial was obtained. Hence, when it transpired at the hearing of 20 December 2002 that transcripts of the other days might be relevant, the appeal had to be adjourned part heard in the interest of justice.

5. The hearing of the appeal resumed on 14 May 2003. On that day, I granted leave to the Claimant to advance an additional ground of appeal which is as follows,

"The learned Presiding Officer erred in law, having regard to the nature of the proceedings in the Labour Tribunal and his duty to investigate, in failing at all or sufficiently to advise and/or remind the Claimant of the importance, in presenting her case, of giving her evidence in relation to the issues in dispute, especially on those on which the learned Presiding Officer subsequently made findings against her." ["the Additional Ground"]

6. There might be some apparent inherent inconsistency between the Original Ground and the Additional Ground. This requires some explanation. When leave to appeal was granted, the Claimant was unrepresented and the transcript of the trial had not been obtained. The court was informed by the Claimant that she did give relevant evidence at the Tribunal with regard to the Findings. However, by 20 December 2002, the transcript of the Claimant's evidence given at the Tribunal had been obtained. It is plain from the reading of that transcript that the Claimant's oral evidence did not touch upon matters relevant to the Findings. Mr Wong however continued to argue the Original Ground on the basis that there were documentary evidence before the Tribunal setting out the Claimant's case regarding matters relevant to the Findings. He submitted that those were as good as Claimant's evidence and the Presiding Officer erred in law in failing to take those into account in his Reasons for Decision. Mr Wong maintained this submission at the resumed hearing on 14 May 2003.

7. At the same time, Mr Wong also advanced a submission that the Claimant did not give any oral evidence at the trial on matters relevant to the Findings because of the failure of the Presiding Officer to advise or remind her to give evidence. Hence, the Additional Ground was canvassed.

8. It is not disputed by Mr Kerr (counsel for the Defendant) that the Presiding Officer did not advise or remind the Claimant to give oral evidence on matters relevant to the Findings. His submissions on the Additional Ground can be summarized as follows,

(a) At the call-over stage, when another Presiding Officer discussed with parties as to the estimate length of the trial, the Claimant agreed to an indication that she herself would give evidence. Hence the Claimant was aware that she could give evidence at the trial;

(b) The evidence against the Claimant was overwhelming and that included evidence from witnesses subpoenaed by the Claimant;

(c) The Presiding Officer was fully aware of the Claimant's case on these allegations in view of the statements made by the Claimant in the course of examination of other witnesses and in her closing submissions;

(d) The Presiding Officer said in his written Reasons for Decision that he had read all documents filed in the tribunal and that would include those documentary evidence relied on by Mr Wong as setting out the Claimant's case on these allegations against her;

(e) In any event, it cannot be disputed that there were a lot of conflicts between the Claimant and other people involved in the kindergarten including the supervisor, the teachers and some parents. In those circumstances, the Defendant had to act to restore harmony in the kindergarten. In the circumstances, irrespective of the rights and wrongs in the conflicts, Mr Kerr submitted that the dismissal must be justifiable under Section 32K(e) of the Employment Ordinance. It would therefore be futile to remit the case back to the Tribunal.

9. I do not think one can dismiss the Claimant's complaint under the Additional Ground on the basis of the first four submissions of Mr Kerr. Regarding point (a), the question in the present case is not whether the Claimant knew she could give evidence. As I said, she did give evidence. But she did not give any oral evidence on matters relevant to the Findings and the Presiding Officer did not invite her to do so.

10. As presently advised, I would not go so far as suggested by Mr Wong to hold that the Presiding Officer should on his own motion put the Claimant into the witness box and lead evidence from her on those matters. Usually, a party can decide whether he would give evidence and in making that decision, he must weigh the advantage of giving evidence against the disadvantage of being cross-examined. If a Presiding Officer were obliged to compel a party to testify, the Tribunal would in effect compel a party to expose himself to cross-examination. In the absence of clear provision or authority to that effect, I am not prepared to say that the duty to investigate in Section 20(3) of the Labour Tribunal Ordinance imposes such obligation on a Presiding Officer. However, I hold (and I understand Mr Kerr also accepted) that a Presiding Officer does have a duty to invite the Claimant to consider giving evidence on relevant matters when it is clear to the Tribunal that the Claimant could give relevant evidence on important issues in the case.

11. In the present case, the documents filed by the Claimant in the Tribunal showed that she could give material evidence on matters relevant to the Findings. In this connection, I need not recite what Mr Wong has highlighted in his Supplemental Skeleton Submission of 18 December 2002.

12. Another alternative open to the Presiding Officer was to tell the parties at the trial that the Tribunal noted what the Claimant said in those documents and in the course of her questioning of the witnesses and ask them whether there was any objection from either party treating those as evidence of the Claimant. If such course is adopted, the Presiding Officer should also ensure,

(a) That the Claimant had nothing relevant to the issues to add to the documents and statements already made by her;

(b) That the Claimant adopted such evidence in the witness box and the Defendant would not be deprived of the chance of cross-examining her. The Presiding Officer might also examine the Claimant on her evidence as he deems appropriate in order to resolve any relevant factual disputes.

13. At the trial of the present case, the Presiding Officer did not adopt any of these courses. From his Reasons for Decision, it is by no means clear that he had regarded the statements of the Claimant in the course of her questioning of the witnesses and the documents as evidence. In his recitation of the evidence, he did not deal with the points raised by the Claimant in the documents or the matters put forward by the Claimant in her questioning of the witnesses. By way of illustration, in respect of the assault on 5 July 2000, the Claimant said in a memorandum addressed to a member of the school management committee dated 22 July 2000 that she was prevented from entering the school by the teacher and the latter was trying to block her way. Physical contacts occurred as a result and the teacher accused the Claimant pushed her. In respect of the absence on 8 July 2000, the Claimant said in the same memorandum that she was sick and had spoken to two class assistants to inform the parents to collect the school reports later. She also produced a medical certificate. None of these were referred to in the Reasons for Decision. These are matters which might have important bearing on the Findings.

14. I am not suggesting that a Presiding Officer has to deal with each and every point raised by a party in the course of cross-examination of witnesses or in documents or in submissions. That would add an unwarranted burden to the already onerous duty of a Presiding Officer. But it is essential that a losing party should be able to know from reading the Reasons for Decision as to why his or her case was rejected in respect of the important and salient findings in a case. In a case like the present one, the absence of reference to the points made by the Claimants cast serious doubt on whether the Presiding Officer had properly considered her side of the story before making such Findings. In my judgment, it is not enough for the Presiding Officer to state merely that he had read all the documents filed.

15. Hence, neither points (c) nor (d) as stated in Paragraph 8 above could assist the Defendant. For these reasons, insofar as one can suggest that the case of the Claimant set out in the documents were evidence before the Tribunal, I will hold that the judgment of the Presiding Officer was open to the criticism under the Original Ground.

16. As to point (b), Mr Kerr emphasized that some of the evidence adverse to the Claimant which supports the Findings came from the witnesses called by the Claimant. But I do not think one can attach too much significance to this in respect of proceedings in the Labour Tribunal. It may be unwise for the Claimant to insist on calling several witnesses who eventually gave evidence not in her favour despite such risk being fairly explained to her by the Presiding Officer. But it does not mean that the Claimant would be barred from putting forward a case inconsistent with these witnesses.

17. As to the weight of evidence, I agree that on the evidence adduced, it was open to the Presiding Officer to make the Findings. However, apart from the Finding stated in Paragraph 2(a) above, I do not think one can say that the evidence in respect of those other Findings were so overwhelming that the Claimant's own evidence (if she was invited to testify on those issues) would make no difference. Mr Wong rightly reminded me not to assume that the documents and statements made by the Claimant at the trial represented all she could say on those issues.

18. On the other hand, I am of the clear view that it was indisputable that there were frequent disputes between the Claimant and the teachers. It is quite obvious from the documents that the Claimant had serious conflicts with several teachers and at a later stage with the supervisor as well. The matter had got to a stage where the supervisor indicated to the Trustees of the Defendant that he would step down from his office.

19. Mr Wong did not dispute that there were conflicts. His submission was that such conflicts were not the faults of the Claimant.

20. Since the Presiding Officer's conclusion on the validity of the reason for terminating the employment of the Claimant was based on conducts of the Claimant by reference to all five specific Findings, I cannot assume that he would come to the same conclusion if different findings were made in respect of four out of those five issues. Neither can I assume these would be the only relevant issues considered by the Presiding Officer if the Claimant did give evidence. That being the case, I have to see whether based on Finding (a) and other indisputable matters as shown by the evidence before the Tribunal, this court can conclude that this is a case within Section 32K. If not, I have to remit the case to the Tribunal.

21. It is convenient to set out at this juncture the relevant legislative provisions. Section 32K reads,

"For the purposes of this Part, it shall be a valid reason for the employer to show that the dismissal of the employee or the variation of the terms of the contract of employment with the employee was by the reason of -

(a) the conduct of the employee;

(b) the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

(c) the redundancy of the employee or other genuine operational requirements of the business of the employer;

(d) the fact that the employee or the employer or both of them would, in relation to the employment, be in contravention of the law, if the employee were to continue in the employment of the employer or, were to so continue without that variation of the terms of his contract of employment; or

(e) any other reason of substance, which, in the opinion of the court or the Labour Tribunal, was sufficient cause to warrant the dismissal of the employee or the variation of the terms of that contract of employment."

22. It has to be considered together with other provisions under Part VIA of the Employment Ordinance. If an employee was dismissed other than for a valid reason, he is taken by Section 32A(2) to have been dismissed because the employer intends to extinguish or reduce his rights or benefits conferred by the Employment Ordinance and Section 32A(1)(a) provides that he may be granted remedies under Part VIA. Section 32L stipulates what the court must have regard to in determining whether a valid reason has been shown under Section 32K,

"(1) On a claim for remedies under this Part, in determining whether or not an employer has shown that he has a valid reason for the dismissal of an employee or for the variation of the terms of the contract of employment with an employee within the meaning of section 32K, the court or the Labour Tribunal shall take into consideration the circumstances of the claim.

(2) Without affecting the generality of subsection (1), the circumstances of a claim include the length of time that the employee has been employed under that contract of employment with the employer as compared to the length of qualifying service required for the right, benefit or protection conferred or to be conferred upon the employee by this Ordinance which is capable of being extinguished or reduced by means of the dismissal or the variation of the terms of the contract of employment."

23. The legislative scheme in Hong Kong has some similarities with the English legislation on unfair dismissal (viz. Part X of the Employment Rights Act 1996). But there are also some material differences. The Hong Kong scheme has been considered by Deputy Judge Muttrie in Vincent v South China Morning Post [2002] 2 HKC 353 and His Lordship's construction of the legislation was set out in Paragraphs 29 to 32 of his judgment. I will only highlight several salient points emerged from that judgment,

(a) The legislature could not have intended the court or tribunal to have the power in all cases to substitute its opinion for that of the employer on the question whether the reason was a valid one (Para.29);

(b) The Hong Kong scheme is not intended to strike at unfair dismissal generally but at unfair dismissal in circumstances where the employer dismisses the employee to save money at the employee's expense by getting rid of him before he becomes entitled to some kind of benefit (Para.30);

(c) A reason for dismissal on the ground of conduct could not be a valid one if it did not come within the band of reasonable responses which a reasonable employer might have adopted and even if it was within that band, one must still have regard to Section 32L (Para.31);

(d) The reasonableness of the response includes procedural reasonableness and an employer cannot show a valid reason for dismissal if he cannot show that he gave proper consideration to the matter before coming to a decision to dismiss (Para.32).

24. Counsel did not refer me to this authority at the hearing. I note from the Daily Cause List that there was an appeal in Vincent and the appeal was heard on 15 and 16 May 2003. Since the proper construction of the provisions in Part VIA will have an important bearing on the outcome of this appeal, I brought the attention of counsel to this and invited written submissions from them. As a result Mr Wong filed further written submissions on 2 June 2003 and Mr Kerr filed his on 3 June 2003. Both of them saw no need to wait for the decision of the Court of Appeal.

25. By reason of the flaws at the trial and in the decision making process mentioned above, I cannot uphold the decision of the Presiding Officer on the basis of his Reasons for Decision. But this is not the end of the matter. As I said, Mr Kerr made a submission that in any event, it was quite plain that the Defendant dismissed the Claimant for a valid reason under Section 32K(e). If I were satisfied as to that, it would be pointless to remit the case back to the Tribunal.

26. If one examines the evidence, it is obvious that the Trustees of the Defendant made the decision to dismiss the Claimant by reason of her incompatibility with others in the school rather than her specific conducts. Two of the Trustees were subpoenaed to testify before the Tribunal. Having read the transcripts carefully, I am of the view that the following passages extracted from the evidence of the chairman of the Trustees summarized succinctly the Trustees' reasons for the dismissal of the Claimant,

"But what was more important to the defendant was that there should not be an atmosphere of quarrelling, bickering going on in the kindergarten between the headmistress and all the teachers in front of all the students, sometimes in front of the parents. It's this kind of bickering that we are putting an end to ..." (p. 14I to J of the transcript of 17 July 2001)

"We didn't want to summarily dismiss her. Because while there was an attitude problem, we would not say that it was for wrongful conduct. She just didn't, wasn't compatible with the other staff, with the supervisor, and with others that she was working with." (p. 24R to S of the transcript of 17 July 2001)

"... it's not a matter for the trustees to believe or not to believe one side or the other side of the story. But, from the reports, we knew what was going on. If anyone had to believe or find out the truth of those reports, it would be the school management committee, for them to take action on. So, it's not really within the problems of the trustees to try and determine the truth or otherwise contained in the reports. But that, from the reports, we knew of all the quarrellings and bickering that was going on, and the various complaints. Because there were not just complaints by the headmistress against the teachers, there were also complaints by the teachers against the headmistress." (p. 28 D to I of the transcript of 17 July 2001)

I should mention that it was clear from the evidence of the chairman that the Trustees had considered both the reports from the Supervisor as well as the letters from the Claimant before reaching their decision.

27. As I have already said, it is indisputable that there were quarrellings and bickering in the kindergarten between the Claimant and some teachers and also between the Claimant and the Supervisor. These are self-evident from the documents before the Tribunal, including documents written by the Claimant, e.g. a letter dated 9 December 1998 written by the Claimant to the Supervisor, letters dated 25 December 1999 and 18 February 2000 and 22 July 2000 from the Claimant to a Trustee and Co-ordinator. These conflicts between the Claimant and the teachers had been a problem for quite some time. There was an unpleasant incident at a teachers meeting on 8 December 1998. This culminated in a warning letter dated 25 January 1999 issued by the Supervisor to the Claimant on the instruction of the Trustees. In the letter, it was recited that the Claimant lost her temper in that incident and acted in a manner not befitting that of a headmistress. The Claimant was reminded that as senior she had greater responsibility to show tolerance and maintain high standard of discipline between her and other school staff.

28. The problem was not solved and at the meeting between the Claimant, the teachers and the Supervisor on 4 December 1999, the Claimant was very unhappy about how the Supervisor was handling the matter. The Claimant criticized the Supervisor in the Management Committee meeting on 18 December 1999 and blamed the Supervisor for the deterioration in the relationship between the Claimant and the teachers. The Claimant also had complaints about the teachers. The Management Committee had a meeting with the teachers on 25 December 1999 and they also heard the Claimant separately on that occasion. Based on the information gathered, the Supervisor submitted a report dated 11 January 2000 to the Trustees.

29. The Trustees then called all the teachers, the Claimants and the Supervisor to two meetings, one in February 2000 and the other one in April 2000. The chairman told everybody that such bickering was not good for the kindergarten and warned that if the condition persisted, drastic actions would have to be taken by the Trustees. Despite that the atmosphere did not improve. There were allegations and cross-allegations against each other as between the Claimant and the teachers. The Claimant persisted in her complaints against the Supervisor. Further unpleasant incidents continued to happen. The Trustees therefore reached the conclusion that they had to take strong measures to stop the further deterioration of the situation.

30. It is fair to say that the evidence clearly showed that the Claimant had difficulties in working with at least some of the teachers and the Supervisor of the kindergarten. There is also evidence that after the departure of the Claimant, harmony was restored in the school. On the facts of the present case, I am quite satisfied that the testimony of the Claimant cannot affect these conclusions although I am sure she could have a lot to say to explain why she behaved as she did and why the faults lies with the others (as she did in her letters).

31. It is also clear to me that the Trustees had tried their best to ameliorate the situation and fair warnings had been given before they resorted to drastic actions. No criticism can be levelled against the Trustees in respect of their decisions that the situation could not be allowed to persist and the hostile atmosphere at the school was not conducive to the benefit and welfare of the students.

32. I have studied the transcripts carefully and in view of the cross-examination of the Trustees who had given evidence at the trial, I feel confident enough to conclude that nothing can be said by the Claimant in her testimony to cast doubt on their testimonies as to the reasons for terminating the services of the Claimant and the steps they had undertaken before such decision was made.

33. Based on their testimonies (which were accepted by the Presiding Officer to be truthful and credible), irrespective of the rights and wrongs in relation to the other Findings, I am satisfied that the decision of the Trustees was within the band of reasonable responses which a reasonable employer might have adopted, particularly in the light of the fact the Defendant actually paid the Claimant all she was entitled to under the Employment Ordinance, a subject I shall need to return to later.

34. Mr Wong accepted that an employer can lawfully dismiss one of two incompatible employees in order to restore harmony amongst the workforce and that could come within Section 32K(e). Similar grounds had been upheld in England under comparable legislation, see Gorfin v Distressed Gentlefolk's Aid Association [1973] IRLR 290 and Eveleigh v Wilson [1973] IRLR 323. However, Mr Wong submitted that before such decision was made steps had to be taken to investigate the conflicts and attempts were made to see whether the working relationship between the staff could be improved. Counsel submitted that in the present case, there was no meaningful attempts to improve the relationship or to effect conciliation.

35. In view of the history of the conflicts as outlined in Paragraphs 27 to 29 above and depicted in greater details in the transcripts as well as the documentary evidence, I have no hesitation in rejecting the last submission of Mr Wong. It is quite plain to me that the Trustees had looked into the matter and undertaken what a reasonable employer in the position of the Trustees would have done. Attempts were made initially by the Supervisor, then the Management Committee and lastly the Trustees themselves to resolve the matter without resorting to drastic actions. Fair warnings had also been given. Unfortunately, the situation persisted.

36. In Turner v Vestric [1980] ICR 528, the English Employment Appeal Tribunal held that to establish that a dismissal was not unfair, the employers had to show not only that there had been a breakdown in the working relationship between the staff in question but that the breakdown was irremediable. The decision of the Industrial Tribunal was set aside because the Tribunal failed to ascertain whether the employer had taken reasonable steps to try to improve the relationship. In that case, the court was dealing with a large organization. Hence, Phillips J said,

"One is dealing here with a large organization ... with, apparently, a properly developed and staffed personnel department, and, therefore, having every opportunity for proper conciliation and investigation of disputes. There is no evidence before us that there is a proper grievance procedure ... Therefore, before dismissing an employee for reasons of this kind (that is to say a breakdown in the working relationship) one would expect the matter to be properly, sensibly and practically investigated to see whether an improvement could not be effected."

37. In contrast, in Gorfin v Distressed Gentlefolk's Aid Association [1973] IRLR 290, the Industrial Tribunal expressed the view that one would not expect in a charity that the same sort of disciplinary procedures should be applied as would be appropriate in a small business. In Eveleigh v Wilson [1973] IRLR 323, the Tribunal held that on the facts of that case, a small business was entitled to dismiss one of two staff who could not get along with each other even though it did not conduct full enquiry as to who was to blame. It was recognized that there were situations where it was difficult to determine who was right and who was wrong.

38. Mr Wong cited three other cases to support his submission that there had to be proper and thorough investigation before a decision was made: Parr v Whitbread [1990] ICR 427, Scott Packaging and Warehousing v Paterson [1978] IRLR 166 and Hollister v National Farmer's Union [1979] ICR 542. Those cases were decided in different contexts and I do not derive much assistance therefrom. In the present case, the Board of Trustee, the Management Committee and the Supervisor had investigated into the matter. Whilst the Board of Trustees did not make any findings as to who was right and who was wrong in respect of these allegations and cross-allegations, this is hardly surprising in view of the nature of the disputes and the apparent long-standing hostilities between the Claimant and the other staff concerned. In my judgment, this is one of those cases where an employer could dismiss an employee for a valid reason under Section 32K even though the employer is unable to conclude that such employee was primarily the one to be blamed for dissension amongst the workforce. Human nature being as it is, I can envisage many cases where it is simply impossible and impracticable to expect an employer to identify or prove a dismissed employee as the prime culprit, if I may use such description, of some inter-personal conflicts in the workplace. The reasonableness of the extent of investigation and efforts on the part of the employer to resolve the matter by other means depends on the facts of each case. On the facts of the present case, my conclusion is that the Defendant had done what a reasonable employer would have done in similar situation.

39. Ultimately, the question is whether the decision of the Defendant was one within the band of reasonable options having regard to the requirement of Section 32L. In this connection, the court should assess the reasonable options by reference to the circumstances of the case.

40. One relevant factor is whether the Defendant paid the Claimant all she would be entitled under the Employment Ordinance. Counsel have addressed the court in this respect in their further written submissions. Mr Wong argued for the first time in his written submissions filed on 2 June 2003 that the termination of employment was in contravention of Section 33(4B) of the Employment Ordinance. The Claimant alleged that she was dismissed whilst she was having her sick leave. The letter of termination of the service of the Claimant was dated 23 August 2000 and she was having sick leave since 14 August 2000.

41. I do not think that take the Claimant's case further. According to the Claimant's own letter dated 17 August 2000 to the Defendant (at

p. 29 of the original appeal bundle), she was informed by the Hon. Secretary of the Defendant as to the decision to terminate her services. She started to have sick leave on the same date. At the same time, she requested a hearing and a meeting took place with the Board of Trustees on 29 August 2000.

42. In the present context, it is more important to note that the Defendant already paid the Claimant sickness allowance from 25 August 2000 to 11 September 2000 calculated at full daily wages on top of her one month's salary in lieu of notice and another sum representing 7 days' extra pay under Section 33(4BA). Based on the leave record at p. 8 of Bundle B and a letter dated 14 September 2000 from the Defendant to the Claimant (at p. 5 of the same bundle), it is plain to me that the Claimant had received more than what she was entitled to by way of sickness allowances under the law having regard to Section 33(4BA) of the Ordinance.

43. Under such circumstances, bearing in mind the irresistible conclusion that the termination of the services of the Claimant was due to the reasons given by the Chairman in his testimony as stated in Paragraph 26 above and chronology of events leading to the taking of sick leave by the Claimant, the alleged contravention of Section 33(4B) provided slender support for a claim for compensation under Section 32P. No reasonable court in the exercise of its discretion under that section would award any further compensation to the Claimant. Put it another way, in my judgment, it would not be just and appropriate to make a further award.

44. Further, it is obvious that the Claimant was not dismissed by reason of redundancy nor being laid-off. However, the Defendant still paid her a sum calculated as if she was entitled to severance payment.

45. Plainly, the Defendant did not terminate the service of the Claimant with an intention to extinguish or reduce any right, benefit or protection conferred upon the Claimant under the Employment Ordinance. With due regard to Section 32L, taking all the circumstances into account, no matter how one looks at it, irrespective of the rights and wrongs on the matters set out in Paragraph 2(b) to (e) above, the dismissal of the Claimant must in my judgment be within the range of reasonable options.

46. Mr Wong sought to argue, again for the first time in his written submissions of 2 June 2003, that the Claimant's claim for terminal payment under Section 32O should be calculated by reference to what the Claimant would have received up to the 5th anniversary of her employment. Having regard to the commencement of her employment on 2 March 1998 Mr Wong submitted that terminal payment should include,

(a) wages calculated up to 1 March 2003;

(b) bonus of one month salary calculated up to 1 March 2003;

(c) annual leave again calculated up to 1 March 2003.

47. Mr Wong advanced that submission on the basis of the decision of Deputy Judge Muttrie in Vincent v South China Morning Post [2002] 2 HKC 353 at para. 52.

"52. In the premises the plaintiff is entitled to terminal payments under section 32O of the Employment Ordinance. This means in effect that he must be put into the position in which he would have been, if he had been dismissed on due notice after his 5th anniversary of commencement of employment."

48. To deal with this submission, it is necessary to refer back to Section 32O of the Employment Ordinance. That section reads,

"(1) Subject to section 32M, if no order for reinstatement or re-engagement is made under section 32N, the court or Labour Tribunal may make an award of terminal payments to be payable by the employer to the employee as it considers just and appropriate in the circumstances.

(2) Terminal payments under this section refer to the statutory entitlements under this Ordinance that the employee has not been paid and that the employee is entitled to upon the termination of the contract of employment, or that he might reasonably be expected to be entitled to upon the termination of the contract of employment had he been allowed to continue with his original employment or original terms of the contract of employment to attain the minimum qualifying length of service required for the entitlements under this Ordinance.

(3) Subject to subsection (4), terminal payments include-

(a) any wages and other payments due to the employee under his contract of employment;

(b) any payment in lieu of notice payable under Part II, in the case of a dismissal without due notice;

(c) any end of year payment payable under Part IIA;

(d) any maternity leave pay or sum payable under Part III;

(e) any severance payment payable under Part VA or any long service payment payable under Part VB;

(f) any sickness allowance or sum payable under Part VII;

(g) any holiday pay payable under Part VIII;

(h) any annual leave pay payable under Part VIIIA; and

(i) any other payments due to the employee under this Ordinance and under his contract of employment.

(4) Notwithstanding that the employee has not attained the qualifying length of service required for the entitlements under this Ordinance, the court or Labour Tribunal may make an award for terminal payments under subsection (1) or (5) which shall be reckoned according to the actual length of time that the employee has been employed under that contract of employment with the employer.

(5) For the purposes of this section, where no order for reinstatement or re-engagement is made for an unreasonable variation of the terms of the contract of employment, the court or Labour Tribunal may treat the unreasonable variation of the terms of the contract of employment as an unreasonable dismissal by the employer and make an award for terminal payments and such terminal payments should be calculated up to the last date on which the employee renders services to the employer or the date on which an award of terminal payments under this section is made by the court or Labour Tribunal, whichever is the earlier.

(6) The respective provisions governing the calculation of the statutory entitlements shall apply to the calculation of the terminal payments; and, subject to subsection (4), in the case of an employee aged at the relevant date less than 45 years who at that date has less than 5 years service with his employer, any long service payment payable by virtue of subsection (3)(e) shall be calculated in the same manner as any long service payment payable under Part VB to an employee aged at the relevant date less than 45 years who at that date has 5 years service with his employer.

(7) Sections 31I and 31IA shall apply to any severance payment paid under this section.

(8) Sections 31Y, 31YAA and 31YA shall apply to any long service payment paid under this section."

49. Deputy Judge Muttrie was dealing with a case where the employee's service was terminated three weeks before the minimum qualifying period for entitlement to long service payment. Hence the reference to the 5th anniversary in that paragraph.

50. In my judgment, on proper construction, the second limb in Section 32O(2), viz. the reference to what an employee might reasonably be expected to be entitled to upon the termination of the contract of employment had he been allowed to continue with his original employment to attain the minimum qualifying length of service required for the entitlements, must be read as being confined to entitlements which require a minimum qualifying period. Long service payment and severance payments fall within that class. But it cannot be the intention of the legislature to provide for award of terminal payments including wages calculated up to the fifth anniversary even though the employee would not be working for the employer any more after the dismissal. This must be clear from sub-section (3)(a). No wages is due to the employee for any period after the effective termination of contract. This construction is further reinforced by sub-sections (4) and (5) where the legislature clearly provides that even for calculation of long service payment or severance payment, the notional basis in the second limb of sub-section (2) only serves to qualify the employee for those payments. However, in respect of the calculation of actual amount payable, it has to be reckoned according to the actual length of time the employee has been employed and calculated up to the last date on which the employee renders services. In short, there is not going to be any free-ride in the award for terminal payments.

51. I therefore respectfully disagree with Deputy Judge Muttrie insofar as he held otherwise. It follows that I reject Mr Wong's argument in Paragraph 46 above.

52. In any event, for reasons already given, I am of the view that the Defendant has showed a valid reason for dismissal within Section 32K and the dismissal was not because the Defendant intended to extinguish or reduce any right, benefit or protection conferred on the Claimant by the Employment Ordinance. Hence, none of the requirement under Section 32A(1) could be satisfied and there is no room for any award to be made under Part VIA.

53. Mr Wong also referred to Malik v Bank of Credit and Commerce International [1998] AC 20 in his written submissions of 2 June 2003. This is misconceived. In the first place, the Claimant did not advance any claim for Malik damages in the Tribunal. If such a claim were advanced, it would probably be outside the jurisdiction of the Tribunal. Lastly, in view of Johnson v Unisys Limited [2001] 2 WLR 1076, such a claim cannot succeed having regard to remedies already provided by the legislature in the context of employment protection under Part VI A of the Employment Ordinance.

54. In the circumstances, I agree with Mr Kerr that there is no viable claim by the Claimant against the Defendant and the appeal should be dismissed. I also make a cost order nisi that the Claimant shall pay the Defendant the costs of this appeal, such costs to be taxed if not agreed.