倫志豪經營飛鵬速遞服務公司 v. LAI SUK MAN MASKUN

HCLA 73/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 73 OF 2001

(ON APPEAL FROM LBTC 2399 OF 2001)

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J U D G M E N T

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Introduction:

1. This is an appeal by the employer, i.e. the 1st Defendant ("the Appellant") against the decision of the Presiding Officer of the Labour Tribunal in dismissing his counterclaim for wages in lieu of notice against the employee ("the Respondent"). The Presiding Officer also dismissed the Respondent's claim for wages in lieu of notice. But as against that decision, there was no cross appeal.

2. The Presiding Officer found the Appellant credible and accepted his evidence. He rejected the evidence of the Respondent. The facts as found by the Presiding Officer are as follows. The Respondent started working for the Appellant on 2 November 2000 as a delivery girl under a contract of employment which provided for a notice period of one month. On 6 December 2000, the Respondent tendered resignation with effect from 13 December 2000 and acknowledged that one month notice was required under the contract of employment. On 7 December 2000, the Respondent returned to work as usual. She was given 20 delivery orders. She was unable to finish her deliveries as scheduled before lunch. The Appellant telephoned her at 1:30 p.m. and summonsed her to return to the office by taxi at once as she complained that the documents she collected were very heavy. She returned at about 2:30 p.m. with her boyfriend waiting for her downstairs. She said that her boyfriend assisted her in the deliveries because she was assigned an enormous workload. In the office, the Respondent returned the undelivered items to the Appellant and had a dispute with the Appellant. The Respondent alleged that during the dispute, the Appellant dismissed her for she had subcontracted her work to her boyfriend, but that allegation was rejected by the Presiding Officer. She demanded payment of her wages, but that was refused by the Appellant as the pay cheque was not ready. The dispute ended with the Respondent lying on the floor saying that she was fainting. She alerted her boyfriend downstairs to call for the police. She was then taken to hospital by an ambulance. In the following two days, she called the Appellant repeatedly and demanded for her outstanding wages. The Appellant returned call two days later and told her to stop making nuisance calls to his office, but did not ask her to return to work.

3. The Respondent then filed a claim for arrears of wages and wages in lieu of notice. The Appellant admitted liability for the outstanding wages but counterclaimed for wages in lieu of notice alleging that the Respondent failed to work out her notice period. The Presiding Officer entered judgment in favour of the Respondent in respect of the outstanding wages but dismissed both the Respondent's claim and the Appellant's counterclaim for wages in lieu of notice. He held:

"Judging from the hostile attitude of the parties towards each other at trial, more probable than not there was heated argument on the period of notice required on 6.12.2000 when the Claimant resigned. After this discussion, the Claimant and the 1st Defendant were on very bad term. The Claimant did not perform as well as before on 7.12.2000. On the other hand the 1st Defendant considered the delay on 7.12.2000 in the delivery work was a deliberate act by the Claimant. He lost confidence totally in the Claimant and asked her to be back immediately after knowing her failure to complete the Wong Tai Sin assignment and that she failed to return before lunch. He therefore arranged no further work for her. The Claimant, realising that the 1st Defendant had lost confidence in her when she was asked to return immediately, would like to get her salary for November as soon as possible in order to protect her position. As the 1st Defendant maintained a hard-line stance and a quarrel broke out she then asked for wages of November and December 2000, thinking that she would not be working for the 1st Defendant any more.

It is noted that the 1st Defendant:

(i) did not assign any work for the Claimant to do in the afternoon of 7.12.2000, contrary to what he normally did; and

(ii) did not ask her to come back for work nor did he raise any issue on the obligation of the Claimant to return for work in his telephone conversation with the Claimant some 2 days later, contrary to what of a reasonable employer is expected to have done in the circumstances.

I consider that from these facts 1st Defendant had evinced a clear intention not to allow the Claimant continue working further for him on 7.12.2000.

I also conclude that the Claimant also evinced an intention not to continue working for the 1st Defendant by her repeated demands for wages and for copy clocking-in cards for November and December 2000, bearing in mind that the wages for December was not yet due as at 7.12.2000. The request for a copy of the clocking-in card for December was clearly for the purpose of chasing wages which is more consistent with an intention not to work for the 1st Defendant further.

Furthermore, when they have an opportunity to talk some 2 days after 7.12.2000, they talked nothing about work but only wages. Vulgar language were exchanged. The mutual trust and confidence that ought to have existed in an employment relationship had gone. I conclude that both the Claimant and the 1st Defendant had no intention at all to be bound by the employment contract between them as at 7.12.2000 afternoon. By then, the 1st Defendant did not intend to provide further work to the Claimant and the Claimant also did not intend to work for the 1st Defendant. It is therefore akin to a mutual release situation. I therefore consider that the 1st Defendant is not liable to the Claimant for WILON nor is the Claimant liable to the 1st Defendant for the same."

The appeal

4. Having found that the Appellant did not intend to provide work to the Respondent and that the Respondent did not intend to work for the Appellant, the Presiding Officer came to the happy conclusion that they were mutually discharged of their obligation towards one another. With respect, I find that rationale difficult to follow. For a release to be mutual, it must be made by consent, whether express or implied. The Presiding Officer was unable to point to any evidence of such consent. Quite on the contrary, the fact that the Appellant and Respondent claimed against each other for wages in lieu of notice show that neither of them considered having discharged the other party of his or her obligation under the contract of employment.

5. As against the Respondent, the Presiding Officer has rightly found that by repeatedly demanding for wages and for a copy of the clocking-in card for November and December 2000 when wages for December was not yet due, she evinced an intention not to work out her notice period and not to work for the Appellant altogether. Not only that, when her demand for wages was not met, she complained of fainting, lied on the floor and alerted her boyfriend to call for the police. If she had a genuine physical problem and considered her contract of employment still subsisting, she should have properly asked for leave that afternoon to consult a doctor or called for an ambulance instead of lying on the floor and asking her boyfriend to call for the police. Such conduct was disruptive of the Appellant's business and was calculated to be so. The Appellant was well entitled to accept that as a repudiation on the Respondent's part of her contract of employment.

6. As against the Appellant, the Presiding Officer found that because he did not assign any work to the Respondent that afternoon and did not ask her to come back for work or raise any issue for her not returning to work some two days later, he evinced a clear intention not to allow the Respondent to continue working further for him. With respect, such reasoning is seriously flawed. On the Presiding Officer's finding of fact, the Respondent demanded for payment of wages which were not yet due, she then lied on the floor, alerted her boyfriend downstairs to call for the police and made a scene in the office. It would be non-sensible for the Appellant to assign her any work under such circumstances.

7. As for the Appellant's failure in asking the Respondent to come back for work, I do not think an employer is under any duty to ask an employee to come back for work. On the contrary, it is the employee's duty to report to work on every working day without having to be invited. Unless by the arrangement of the parties or the nature of work or the circumstances are such as to make it unnecessary or inconvenient for the employee to start the working day from the employer's workplace, it is invariably the duty of the employee to report for work. If the Respondent considered her contract subsisting, she should resume work as soon as her physical condition permitted, but this was not what she did. She only telephoned the Appellant to demand for wages. Clearly, she evinced an intention no longer to be bound by the contract of employment. In the circumstances, on the afternoon of 2 December 2000, the Appellant was entitled to accept her repudiation and to treat the contract of employment as at an end so that when the Appellant spoke with her two days after, he was under no obligation to ask her to return for work.

8. As the parties have not mutually released the other party from the contract, the Presiding Officer should have considered whose act it was that first brought the contractual relation to an end. The Presiding Officer rightly found that by her conduct on the afternoon of 7 December 2000, the Respondent evinced an intention not to continue to work for the Appellant. However, the Presiding Officer did not stop there and then as he should and did not find that the Appellant was entitled to accept the Respondent's repudiation. But instead, he went on to hold that as a result of subsequent defaults by the Appellant in not assigning her any work and not asking her to return for work two days later, the Appellant evinced a clear intention not to allow the Respondent to continue work and hence both parties were mutually released of their obligation under the contract. In my view, that is where the Presiding Officer erred in law. The acts of the Respondent that afternoon were the first acts which triggered the termination of the contract of employment. The Respondent was in breach of her contract and evinced an intention no longer to be bound by her contract of employment. The Appellant was entitled to accept her breach as repudiation of the contract of employment on her part. The law does not impose on the Appellant an obligation to assign the Respondent work that afternoon or to ask her to return to work thereafter, otherwise he would be forced to condone the breach and to affirm the contract. The Appellant was entitled to accept the Respondent's repudiation, treat the contract of employment as at an end and claim damages for the Respondent's breach, which is the balance of the wages in lieu of notice he would otherwise have received under the contract.

Conclusion

9. In the circumstances, I find that the Presiding Officer erred in law in holding that the parties have mutually released the other party from the contract. Accordingly, I allow the Appellant's appeal. I set aside the order of the Presiding Officer dated 12 September 2001 in so far as it relates to the dismissal of the Appellant's counterclaim and substitute that with an award in favour of the Appellant against the Respondent in the amount of $5,145.16 being the balance of wages in lieu of notice due to the Appellant. I make no order as to costs.