NGAN YU CHIU v. NEW WORLD FIRST BUS SERVICES LTD

[English Translation – 英譯本]
HCLA 7/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 7 OF 2006

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 4787 OF 2005)

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BETWEEN

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JUDGMENT

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Background

1.  The Plaintiff was employed by the Defendant, a bus company, as bus captain as from 12 July 1999.

2.  The Plaintiff sustained an injury to the neck in the course of work on 9 July 2003. As a result, he was thereafter absent from duty on and off until 30 May 2005.

3.  On 12 May 2005, the Employees’ Compensation (Ordinary Assessment) Board made an assessment of the Plaintiff’s injury. The Board issued a certificate of assessment under section 16F (“the 16F certificate”) on 26 May 2005 in accordance with section 16D(5) of the Employees’ Compensation Ordinance.

4.  The Plaintiff filed an objection to the above assessment to the Commissioner of Labour on 30 May 2005 and provided the defendant with a copy of the notice of objection.

5.  On 31 May 2005 the Plaintiff made a request to resume his work with the Defendant. He was told that he would not be allowed to do so unless he provided a “certificate of resuming work”. The Plaintiff’s request was turned down as he failed to provide such certificate. In the meantime, the Defendant refused to pay the Plaintiff salary and treated his case as one of absence from duty without reason.

6.  The Plaintiff lodged a claim in the Labour Tribunal, which ruled that the Defendant terminated the employment contract with the Plaintiff on 31 May.

Grounds of appeal

7.  According to the Plaintiff, the Employees’ Compensation (Ordinary Assessment) Board reviewed the original assessment of his injury on 8 September 2005 and issued a certificate of review of assessment under section 16G(3) of the Employees’ Compensation Ordinance (“the 16G(3) certificate”) on 22 September 2005, which superseded the 16F certificate issued by the Board on 26 May 2005.

8.  The Plaintiff claimed that the Defendant had never dismissed him. Indeed, the Defendant’s stance, as its evidence before the Labour Tribunal made clear, was that it had merely suspended the Plaintiff from work and had not dismissed him. Nevertheless, Mr Alexandar Tang, Presiding Officer of the Labour Tribunal, ruled that the Defendant dismissed the Plaintiff on 31 May 2005. In this appeal, both parties agree that the written Reasons for Ruling of the Labour Tribunal does not explain why the Tribunal found as a fact that the Defendant dismissed the Plaintiff on 31 May despite the fact that both parties took the common stance that their employment relationship was not terminated on 31 May and the Plaintiff was not dismissed by the Defendant on that day.

9.  Mr Kwok, Counsel for the Plaintiff, fairly points out that the Plaintiff stated in the “Notice of Request for Remedy” that his employer had, contrary to section 48 of the Employees’ Compensation Ordinance, dismissed him other than for a valid reason, and that the date of dismissal was 31 May 2005. The Plaintiff served the above Notice on the Defendant company on 8 August 2005.

Focus of the appeal

10.  Did the Defendant contravene section 48 of the Employees’ Compensation Ordinance (Cap. 282) if it did terminate the Plaintiff’s employment contract on 31 May 2005? Section 48 provides as follows:

(1)   An employer shall not, without the consent of the Commissioner ―

(a)        terminate the contract of service or apprenticeship of an employee who has suffered incapacity in circumstances which entitle him to compensation under this Ordinance; or

(b)        give notice to the employee of such termination,

before ―

(i)          the Commissioner has issued a certificate under section 16A(2), to the employer and the employee; or

(ii)        the employer has entered into an agreement under section 16CA(1), with the injured employee; or

(iii)       an Ordinary Assessment Board or a Special Assessment Board, as the case may be, has issued a certificate under section 16F or 16G(3), to the employee, the employer and the Commissioner,

whichever occurs first. (Replaced 1 of 1995 s. 15)

11.  Mr Kwok, Counsel for the Plaintiff, submits that an employer shall not, without the consent of the Commissioner under section 48(1)(a), give notice to the employee of a termination of the employment contract before any of the facts stated in section 48(1)(b)(i), (ii) or (iii) occurs.

12.  In the present case, there was neither a certificate under (i) nor an agreement under (ii). The focus of the case therefore is: on 31 May, was there a certificate issued by an Assessment Board to the employee, employer and the Commissioner under section 16F or 16G(3)?

13.  Both parties agree that the words “whichever occurs first” towards the end of the section refer to (i), (ii) and (iii) and not to the 16F or 16G(3) certificate.

14.  (i)   In other words, therefore, the appeal turns on whether the employer may, as the Defendant argues, give notice of termination of contract under subsection (iii) as long as there is either a 16F certificate or a 16G(3) certificate;

(ii)  Or, as the Plaintiff argues, where a 16G(3) certificate is issued which supersedes a 16F certificate, the employer cannot dismiss the employee until the 16G(3) certificate has been issued.

Discussion

15.  Ms Tong, Counsel for the Defendant, submits that the statutory provision makes it clear that an employer may issue a notice of termination of contract when there is a 16F certificate or a 16G(3) certificate. In the present case, the Assessment Board did issue the 16F certificate on 26 May, and therefore the termination on 31 May was lawful and the Plaintiff is not entitled to seek an award of compensation under section 32P of the Employment Ordinance (Cap. 57).

16.  On the other hand, Mr Kwok, Counsel for the Plaintiff, submits that there would be no point including the words “or 16G(3)” if the section 48(1)(b)(iii) requirement could be fulfilled by either a 16F certificate or a 16G(3) certificate. 16F is the first certificate of assessment and will invariably be issued before 16G(3), which is a certificate of review of assessment. Upon review, the Board may amend or cancel the certificate of assessment previously issued under 16F; if a 16F certificate were sufficient, then whether there was any subsequent 16G(3) certificate would have no bearing on the employer’s decision to give notice of termination of contract.

17.  I accept Mr Kwok’s submission. One of the fundamental axioms of statutory interpretation is the presumption that the legislator avoids using superfluous words (see Hill v. William Hill (Park Lane) Ltd [1949] AC 530, at 546-7 & 552). That being so, where an employee seeks to object to an assessment of his injuries or to have the assessment reviewed, a 16G(3) certificate under (iii) will be the relevant one and the 16F certificate issued earlier is superseded and hence void. 

18.  Ms Tong for the Defendant submits that such an interpretation would cause confusion to employers for they would not know if the employee was going to raise any objection after the issue of a 16F certificate. While the law stipulates that the employee shall make an objection within 14 days after the issue of the certificate, the Commissioner may extend such time limit and as a result, the employer may unwittingly commit a criminal offence by giving notice of termination of contract.

19.  However, as long as an employer justifiably gives notice of termination of contract after a 16F certificate has been issued, the fact that the employee raises an objection and obtains a 16G(3) certificate of review afterwards will not be sufficient to render the employer guilty of a criminal offence. The issue of the 16G(3) certificate only serves, in the civil context, to supersede the 16F certificate and invalidate the notice of termination of contract. A valid notice of termination of contract can only be given after the issue of a 16G(3) certificate.

20.  As Mr Kwok points out, the legislative intent of section 48 is to protect the employee from termination of contract by the employer before a definite certificate of assessment is issued. It is true that the employee is entitled to lodge an appeal to the District Court and thereafter the Court of Final Appeal even after the issue of the 16G(3) certificate. However, under the Ordinance, the cut-off point is the date of issue of the 16G(3) certificate, after which the employer is entitled to terminate the employment contract.

21.  Finally, Ms Tong submits that, prior to its amendment in 1995, section 48 contained different provisions, as follows:

48. (1)   An employer shall not, without the consent of the Commissioner —

(a)        terminate the contract of service or apprenticeship of an employee who had suffered incapacity in circumstances which entitle him to compensation under this Ordinance; or

(b)       give notice to the employee of such termination,

before —

(i)          where the employee suffers temporary incapacity only, the date certified by a medical practitioner or registered dentist as the date on which the period of temporary incapacity ceased or will cease; or

(ii)        where the employee suffers permanent incapacity, the date of issue to the employer of the relevant certificate of assessment under section 16F or, where an objection to the assessment is made under section 16G(1), the date of issue to the employee of the relevant certificate under section 16G(3) or of a further certificate under section 16F, as the case may be.

On this basis, Ms Tong argues that the law has been amended so that an employee may no longer treat the date of issue of a 16G(3) certificate as the final date.

22.  Mr Kwok submits that the old law expressly provided that where an objection was made to a 16F certificate, the employer could not terminate the contract before the issue of a 16G(3) certificate. If the new section amended the practice of section 48, then as suggested above, it would be difficult to see the significance of the date of a 16G(3) certificate as the employer might give notice of termination after the issue of a 16F certificate.

23.  Furthermore, the old section explicitly provided that the employer could give notice only after the date of issue of the 16G(3) certificate. The new section merely seeks to express the old law in a more concise manner without altering the original legislative intent, and amendments have only been made to other areas such as (i) and (ii).  

24.  I agree with Mr Kwok’s submission. In my view, the most reasonable interpretation is that the old provision took the date of a 16G(3) certificate as the final cut-off date.

Conclusion

25.         For the above reasons, I allow the Plaintiff’s appeal and remit the case to the Labour Tribunal before another Presiding Officer for of the purpose of assessing the compensation payable to the Plaintiff under section 32P of the Employment Ordinance.

26.         As both parties agree that costs be in the cause, I order that the Plaintiff be awarded costs to be taxed before a Master of the High Court if not agreed, and that the Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.