Woon Thean Mun v. Hong Kong Airlines Ltd

HCLA 27/2018

[2019] HKCFI 2968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 27 OF 2018

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 2604 OF 2011)

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BETWEEN

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D E C I S I O N

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I. INTRODUCTION

1.The claimant (“C”) was an employee of the defendant (“D”). C signed a fixed-term employment contract with D as manager (“Employment Contract”). D claimed C’s employment relationship with D ended upon expiry of the Employment Contract, and D made a final payment to C on 3 June 2011 (which included C’s salary on 1-3 March 2011, 12 days’ annual leave and gratuity). But C claimed his employment with D had been renewed, so he suffered damages due to D’s breach of such renewed employment contract.

2.Although C commenced his claim against D in the Labour Tribunal (“Tribunal”) in 2011 as LBTC2604/2011, such claim was adjourned sine die until it was revived in 2017.

3.C’s claim in LBTC2604/2011 was tried before Deputy Presiding Officer Anny Chak (“DPO”) in October 2018. C and his witness Mr Ryan Goh gave evidence at the trial. D called Mr Kenneth Thong to give evidence. On 8 November 2018, the DPO delivered her judgment as follows (“DPO Judgment”), and gave oral reasons for judgment:

“1. Judgment be entered against [D] to pay [C] 3-month wages in lieu of notice in the sum of $360,000.00 for item (A): Damage to Salary. [D] shall pay to [C] interest on item (A): Damage to Salary pursuant to Section 39(3) of the Labour Tribunal Ordinance, Cap 25, and the interest shall be calculated from the date of the award until satisfaction. Payment to be made forthwith.

2.  Security of $20,000.00 paid into the [Tribunal] by [C] on 20/09/2011 pursuant to the Award/Order dated 19.09.2011 be refunded to the Claimant.

3.  Claim by [C] against [D] for item (B): Damage to Gratuity (At 15% Salary), item (C) Damage to Provident Fund Contributions, item (D) Loss of Flying Hours and item (F) Rise of Price of Condominium be dismissed.

4.  No order as to costs.”

4.C was dissatisfied with the DPO Judgment, so on 21 April 2018 C filed an Application for Leave to Appeal on Point of Law (“Application”). The Application set out C’s various intended grounds of appeal against the DPO Judgment (“1^st Grounds”), including the complaints that the DPO (a) failed to perform her statutory duty to investigate (and/or to allow C to cross-examine witnesses on) D’s malice, conspiracy, victimisation, fraud, and unjust, unreasonable, wrongful and unlawful actions and omissions in prematurely terminating C’s employment with D, (b) failed to give weight to C’s strong documentary and other evidence, (c) gave weight to obsolete/voided/unsigned documents, (d) accepted witnesses’ lies, (e) failed to recognise C as expert witness on flight operation matters despite his experience, and (f) failed to allow C’s claims in full. C reserved his right to add further grounds upon receipt written judgment by the DPO.

5.C applied for legal aid in December 2018.[1] On 23 January 2019, the DPO handed down written Reasons for the DPO Judgment (“DPO Reasons”).

6.At the first hearing of the Application on 15 February 2019, C applied to adjourn such hearing pending the outcome of his legal aid application. After hearing submissions from C, I adjourned the hearing of the Application to 28 May 2019. In March 2019, the Director of Legal Aid (“DLA”) refused C’s application for legal aid.[2] C appealed against DLA’s refusal, but on 6 May 2019 Master J Wong dismissed C’s legal aid appeal.

7.Meanwhile on 27 December 2018, without leave of the court, C filed 38 pages of additional intended grounds of appeal (“2^nd Grounds”). Later, again without leave of the court, C lodged 92 pages of intended grounds of appeal dated 18 May 2019 (“3^rd Grounds”) and 8 pages of intended grounds of appeal dated 24 May 2019 (“4^th Grounds”).

8.The adjourned hearing of the Application came before me on 28 May 2019. C appeared in person at such adjourned hearing. At such adjourned hearing, I granted leave for C to withdraw the 2^nd Grounds, and directed C to file the 3^rd and 4^th Grounds as his intended additional grounds of appeal. On the same day, C filed his affirmation exhibiting the 3^rd and 4^th Grounds as exhibits A and B thereto.

II.  LEGAL PRINCIPLES

9.The onus is on the applicant to show that the intended appeal has arguable grounds.[3] Whilst an appeal against a determination by the Tribunal is on a point of law,[4] leave to appeal will also be granted if the determination was made without regard to relevant factors, was made without evidence, or there was failure to discharge the statutory duty to investigate and such failure has given rise to injustice, in that a fair and proper determination of the claim cannot be attained.[5]

III.  C’s CONTENTION

10.C submitted he clearly had (at least) an arguable case that the DPO had committed fundamental errors of law and had failed to discharge her statutory duty to investigate in a material way in the above senses so that leave to appeal ought to be granted. To consider C’s contentions, it is necessary to start with the parties’ respective case.

IV.  PARTIES’ RESPECTIVE CASE

11.It was C’s contentions that although he received from D a “final” payment with letter from D on 3 June 2011, his employment with D had not ceased as there was an agreement by the then Training Manager, Captain Richard Stewart that D “would give [C] line flying and promotional opportunities to age 65 and instructional and/or managerial duties past age 65” (“Agreement”), which C claimed was evidenced by various emails/letters in August and November 2010, and bolstered by D’s email in March 2011 that made enquiry with C as to renewal of his working visa. C claimed his employment contract was not subject to any Conditions of Cockpit (“Conditions”) as (a) D’s 2008 Conditions had been replaced and had become obsolete and (b) he refused to sign any subsequent versions of the Conditions.

12.C made wide-ranging allegations against D of discrimination as well as unlawful, unfair, unjust, unreasonable, wrongful, malicious and fraudulent actions, and further claimed that by D’s conduct he was led to believe he would receive the same or better treatment as other employees. C claimed against D for breach of the Agreement for damages (including damage to salary, damage to gratuity, damage to provident fund contribution, loss of flying hours and loss over rise of price of condominium[6]) for over $32,000,000.

13.At the trial, D conceded that the Employment Contract should have expired by effluxion of time in November 2012, that the Employment Contract was prematurely terminated, and that D had to give 3-months’ notice for termination or 3-months’ salary in lieu of notice, but D denied there was any Agreement. D claimed it had full discretion whether or not to renew the Employment Contract, but any such renewal would have to (a) comply with the renewal procedure in the Conditions (ie the 2008 version and subsequent versions thereof), (b) involve D’s 3 departments (ie Human Resources, Finance and Senior Management Departments) such that any pilot employment contract would only be renewed if the criteria of these 3 departments were met, and (c) there was no mutual agreement on the renewal terms and conditions in writing or signed by C and D as required under the Conditions.

14.D alternatively argued that even if C’s employment contract had been renewed, it would have been renewed on the same terms and conditions of service in which case Clause 4 of the Employment Contract would have allowed D to terminate the renewed employment contract by giving C 3-months’ notice or 3-months’ salary in lieu of notice.

V.  DPO JUDGMENT

15.On the issue of whether or not (a) C and D reached the Agreement to renew the Employment Contract and/or (b) an effective renewal notice had been given to C pursuant to Clause 3 of the Employment Contract, the DPO noted that C (i) relied on 2 oral agreements made with the Chief Operating Officer Ronal Lim and Richard Stewart as evidenced by various emails/letters in August and November 2010, and (ii) claimed that such emails/letters amounted to an effective renewal notice under Clause 3 of the Employment Contract.

16.The DPO rejected C’s contentions, and found that:

(a)  the Conditions and their subsequent versions were duly incorporated by Clause 12 of the Employment Contract as part of the contractual framework binding on C and D;

(b)  C signed the Employment Contract which stated that the Conditions formed part of the contract, and he signed/acknowledged a copy of the Conditions to the effect he would abide by all rules and regulations stated in the Conditions, so there was no mistake that would vitiate the binding effect of the Conditions on C;

(c)  Clause 12 of the Employment Contract clearly provided that additional rules, regulations, rights, benefits for protection from time to time promulgated under the Conditions also formed part of such contract, which meant the 2008 Conditions and subsequent versions thereof applied to C irrespective whether he signed and/or acknowledged the subsequent versions;

(d)  there was no merit to C’s argument that he only acknowledged receipt of the “08 January 2008” version and not the “01 January 2008” version of the Conditions (even though the DPO accepted the reference to “08” rather than “01” was a typographical error) because Clause 12 of the Employment Contract specifically referred to the Conditions published on “01 January 2008” which therefore formed part of the contract between C and D;

(e)  as at March 2011, the contractual relationship between C and D (including contract renewal) continued to be governed by the latest version of the Conditions, ie the 2009 March Conditions;

(f)  Clause 3 of the Employment Contract and Clause 2.2.4 of the Conditions were consistent with each other in reserving the right/discretion on contract renewal unto D, and requiring any renewal to be in writing and signed before expiry of the Employment Contract, but there was no such document;

(g)  fair reading of the emails/letters that P relied on did not displace or override the formalities/procedures prescribed in the Employment Contract and Conditions, and in fact such emails/letters suggested contract renewal would be a prospective matter to be handled by D (if at all);

(h)  such emails/letters in 2010 could not amount to any renewal given by D “one month prior to the Expiry Date” (ie November 2012) in compliance with the relevant contractual provisions/procedures;

(i)  such emails/letters were at best recommendation by Ronal Lim and/or Richard Stewart which had yet to be considered/formalised in accordance with the necessary procedures (ie approved through the VPN approval system);

(j)  a reasonable person in C’s position could not have thought there was any agreement for contract renewal, and this was especially so for C with substantial experience in commercial aviation and who also had law degrees.

17.The DPO noted the normal retirement age was 60 years,[7] but D had absolute discretion whether or not to extend the retirement age. D’s email dated 28 January 2011 stated the non-renewal was due to contract expiry or retirement age. In fact, D reached 60 years in 2010, so the DPO found there was no evidence of “discrimination, unlawful, unfair unjust, unreasonable, wrongful, malicious, fraudulent (deception) actions” on D’s part.

18.The DPO also disagreed Ronal Lim had absolute right of recruitment which even the Chairman and/or Vice President could not intervene. The DPO found C failed to rebut the clear evidence from the VPN approval form in relation to Captain Chow, and the relevant procedures concerning such VPN that showed Ronal Lim did not have such absolute right.

19.As regards C’s reliance on the email dated 18 May 2011 made after termination of C’s employment, the DPO said it was at best an expression of intention of Ronal Lim to put forward a new contract renewal policy, but under the 2011 Conditions the normal retirement age was still 60 years, and in any event the Chairman stated in the email that the original contract would have to be followed, which meant the Employment Contract and Conditions must prevail.

20.The DPO took note that C lodged further submissions after the trial, and D responded by supplemental submissions. The DPO found C’s further submissions did not add further to his case.

21.On the basis of the aforesaid analysis and reasons, the DPO rejected C’s case, but in view of D’s concession in paragraph 13 above, D was liable to pay 3-months’ salary in lieu of notice to C. Given such conclusion, the DPO found it unnecessary to deal with the second issue in paragraph 15(b) above. But even if the Employment Contract had been renewed as C alleged (which the DPO disagreed), the DPO would have found the alleged renewed contract had been renewed “with the same remuneration, benefit, terms and conditions of service” as per the email relied on by C himself, in which case Clause 4 of the Employment Contract would have enabled D to terminate such alleged renewed employment contract by giving C 3-months’ notice or 3-months’ salary payment in lieu of notice, so the result would have been the same.

VI.  DISCUSSION

22.In over 100 pages of intended Grounds, C raised myriad challenges to the DPO Judgment and DPO Reasons. Those intended grounds were not easy to understand, and C did not help himself by making convoluted, rambling and wide-ranging accusations.

23.However, a review of the intended Grounds showed that whilst they ultimately attacked the findings made by the DPO, some aspects of such attack was not intended to be a direct challenge to the findings made but a criticism of how the DPO approached C’s claim and the evidence in coming to her factual conclusions. Although an appellate court may not reverse/vary any determination made by the Tribunal on question of fact or receive further evidence on appeal, there was some basis to say the findings by the DPO was arguably suspect (and hence arguably liable to be impugned) in the senses set out in paragraph 9 above. Further, the DPO Judgment and DPO Reasons also largely turned on construction of the Employment Contract, the Conditions and/or the emails/letters that P relied, and the vitality of such construction was a matter of mixed fact and law, so the DPO’s interpretation of such documents in the relevant factual context as found by her was arguably amenable to appeal.

24.It is inappropriate at this stage to canvass all of the intended Grounds that C had put forward. But it appeared he made contentions inter alia that the DPO failed to investigate, address and deal with or sufficiently investigate, address and deal with his claims of discrimination, victimisation, abuse of process, malice or gross negligence etc against D that allegedly underlied D’s conduct in terminating their employment relationship. C also alleged that the DPO did not permit or sufficiently permit him to cross-examine witnesses on such matters on the basis that such matters were irrelevant. C further claimed D terminated his employment prematurely without 3-months’ notice, 3-months’ salary in lieu of notice and/or just cause which would be similar or tantamount to summary dismissal. C disputed the incorporation of the Conditions (in particular the post-2008 versions of the Conditions) as part of the contractual framework between C and D. Although such complaints would go to the DPO’s findings, they arguably amounted to challenges in the senses as explained in paragraph 9 above.

25.In all, although the voluminous Grounds could not be said to facilitate easy understanding, at this stage when I have to bear in mind the threshold test for leave to appeal, I consider the proposed Grounds to be at least arguable. The various intended grands of appeal set out in the 1^st, 3^rd and 4^th Grounds were also inter-connecting, so I grant leave to appeal on the 1^st, 3^rd and 4^th Grounds. Nevertheless, for the avoidance of doubt, if there are new factual allegations set out in the 1^st, 3^rd and 4^th Grounds that had not been canvassed at the trial in LBTC2064/2011, C would not be able to rely on such new facts at the appeal proper (despite leave to appeal granted herein) as the appellate court may not receive further evidence on appeal.

26.I remind C that other than the 1^st, 3^rd and 4^th Grounds, I have not granted leave for him to rely on any further, additional and/or varied grounds of appeal. As no such leave has been granted, C cannot rely on any further, additional and/or varied grounds of appeal other than the 1^st, 3^rd and 4^th Grounds when he files the appeal proper against the DPO Judgment. To avoid any misunderstanding, C should consider simply annexing the 1^st, 3^rd and 4^th Grounds to such originating application for appeal against the DPO Judgment. C should also serve on D a copy of this Judgment together with any originating application for the appeal proper against the DPO Judgment.

27.As for costs, I also order that costs of the application for leave to appeal (and all costs reserved, if any) be costs in the cause of the appeal.

The Claimant / Applicant acting in person and present