KEUNG AH PAN v. HONG KONG MACAU WATER PROOF ENGINEERING CO. LTD.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO. 77 OF 1994

(On appeal from Labour Tribunal claim No. E3555 of 1993)

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D E C I S I O N

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1. This is an appeal from a decision of the Labour Tribunal on 9th August of last year. The reasons for decision were given on 11th September of last year.

2. Very briefly, the only claim which is now relevant is that Mr. Keung claims for wages in lieu of notice. The Claimant, who is the Appellant in this matter, worked for the Defendant and it seems that he worked on repairing roofs.

3. For a long period of time, the Appellant was off work. On 3rd December 1992, the Appellant obtained a medical certificate certifying he was medically unfit to work. That medical certificate was obtained at the Queen Elizabeth Hospital and provided by a doctor. There were subsequently medical certificates which covered the Appellant for part of the time up until the end of that year. The parties were in dispute and the matter came before the Labour Tribunal.

4. There was, first of all, a claim in respect of medical expenses. The Tribunal dismissed that claim and there is no appeal against that.

5. Then there was a claim in respect of 5 day's wages. That was for a period in December. The decision turned upon whether the Claimant was working for the Defendant over a period from 7th December and whether he was assigned the work which he did.

6. The defence was that the Claimant had resigned from the Defendant Company on 8th December. That the Presiding Officer rejected. He held that the Appellant had not resigned on 8th December, or indeed on any other day, and that he had worked on those 5 days. Therefore he awarded the Claimant the 5 day's wages.

7. The Claimant's last claim was a claim for wages in lieu of notice. The Claimant put his claim on 3 bases. First of all, there was a telephone conversation with a Mr. Hui of the Defendant Company. I should say this Mr. Hui was not called as a witness on behalf of the Defendant before the Tribunal. The telephone conversation was alleged to have taken place on 24th December in which Mr. Hui mentioned that no work could be provided to the Claimant until the matter of sick-leave for the period from 1st October to 3rd December 1992 was clarified. This is referred to as Ground A in Grounds of Appeal. Ground B was that there was a telephone conversation with Mr. Hui on 28th December 1992 to the same effect as the previous conversation. Ground C was that there was no provision of work by the Defendant since 12th December 1992.

8. Having rejected the suggestion that the Claimant had resigned and made the appropriate award, the Presiding Officer went on to consider the wages in lieu of notice. In respect of Ground A, the Presiding Officer said that the Claimant's evidence indicated that Mr. Hui did not really mean to give no work to the Claimant until the issue of sick-leave was clarified, Mr. Hui so mentioned simply because he was in a bad mood. I see no merits in Ground A. What in effect the Presiding Officer held was that the Claimant on his own statement realized that Mr. Hui did not actually mean what he said and therefore there was no basis upon which of the Claimant could say that he had been laid off on 24th December.

9. Then in respect of Ground B, the Presiding Officer says this:

"There was a real doubt over the Claimant's sick-leave for the period of 1 October to 3 December. I felt it reasonable for the Defendant to say that the Claimant would not be assigned work until that issue was ironed out. The Defendant would be under a duty to investigate with due diligence. They did not fail in this respect. I fail to see in Ground B any intention of the Defendant repudiating the contract of employment."

10. Now I pause there for a moment. As I have indicated there was a substantial period of sick-leave which was claimed pursuant to a medical certificate which was issued by a doctor.

11. First of all, as to the factual position. There was a letter, which was Exhibit D9, written by the Defendant's insurers which simply referred to this medical certificate and said: "Please stop your payment to the injured until the doubt is clear." It does not say what the doubt is. "We shall send our surveyor Mr. Tan Kam Wing to look into the matter and please give your assistance to him." It says no more than that.

12. Now I ask upon what basis could it be said that the Defendant was entitled not to assign work to the Claimant and, in effect, lay him off. I was directed to Section 11 of the Employment Ordinance and that reads as follows:

"(1) Notwithstanding any other provision of this Ordinance or of any other law, an employer may without notice or payment in lieu suspend from employment any employee for a period not exceeding 14 days-

(a) as a disciplinary measure for any reason for which the employer could have terminated the contract of employment under Section 9;

(b) pending a decision by the employer as to whether or not he will exercise his right to terminate the contract of employment under Section 9; or

(c) pending the outcome of any criminal proceedings against the employee arising out of or connected with his employment."

13. The only basis upon which it was suggested that this Section applied was Section 11(1)(a). That would contemplate a disciplinary measure being taken for a reason which the employer could have terminated the contract. It does not seem to me that the stage for disciplinary measures could have arisen. One cannot suspend somebody as a disciplinary measure whilst the matter is still under investigation. The matter was apparently referred to the Queen Elizabeth Hospital and on the 10th February, the Hospital Chief Executive wrote to the Managing Director, Mr. Hui, of the Defendant Company saying that Mr. Keung had failed to come to the hospital for a Medical Assessment Board (MAB) at the end of October. Despite that, on 8th October and 26th November, Mr. Keung had gone back to the hospital clinic with the same complaint as he had before. The letter terminates thus:

"As a matter of practice, sick leaves are usually granted to the date of the MAB. The attending doctor on 3.12.92 mistakened that Mr. Keung had not yet assessed by the M.A.B. because of some technical delay, without realizing that Mr. Keung had never turned up to request for M.A.B. as instructed.

To rectify the situation, sick-leave granted to Mr. Keung from 1.10.92 onwards is, hereby, declared invalid."

14. I asked on what basis the Hospital Chief Executive could declare invalid a medical certificate given by a doctor of the hospital. I received no clear reply to that. I fail to see how a hospital Chief Executive can in his capacity as hospital Chief Executive declare a medical certificate issued by a doctor to be invalid. I do not see what power he has to do that. The complaint which is made about this medical certificate is not, from what I can see, that of the Claimant was not entitled to be regarded as sick but that he did not turn up and ask for a Medical Assessment Board.

15. Despite that, however, the fact is after he should have attended the hospital apparently to apply for a Medical Assessment Board, he still in the succeeding months went to the hospital and nobody bothered to tell him to go to the Medical Assessment Board. Even after this certificate, which was granted on 3rd December, he was granted further medical certificates. I can only conclude from that he was actually entitled to a medical certificate from the doctor to say he was sick.

16. The attack on the validity of the medical certificate is not that he forged the certificate nor that he was a fraudulent in obtaining one. I see no grounds therefore that any disciplinary measures could have been taken against him. He had what on 3rd December was a perfectly valid medical certificate and, irrespective of the Hospital Chief Executive's supposed power to declare it invalid, it was there.

17. Returning then to the Presiding Officer of the Labour Tribunal's decision, I find it is difficult to see how the holding that he felt it reasonable for the Defendant to say that the Claimant would not be assigned work until that issue was ironed out. The finding which the Presiding Officer made seems to me to make it implicit that he accepted the conversation of 28th December 1992 and that the Claimant as of 24th December was saying he wanted to go back to work, but that he was being told that he could not because the medical certificate had to be, as the Presiding Officer put it, ironed out. In my view, there was no justification for holding that the employer was entitled to withhold work. Therefore this tainted the ultimate holding of the Presiding Officer that what happened is that the parties just allowed their working relationship to wither away without either the Claimant resigning or the employer giving the Claimant the sack.

18. In my view, there was an effective termination of the contract of employment by the failure to give the employee work and a notification to the employee that no work would be given. This was for reasons which were not valid. Therefore, in my view, the Claimant is entitled to wages in lieu of notice. The Presiding Officer has helpfully quantified 7 days wages in the total sum of $1,960 being 7 days at $280 per day and therefore, I allow the appeal and award the Claimant that sum.