鍾凱研 v. The General of the Salvation Army

HCAL 302/2023

[2023] HKCFI 3273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 302 OF 2023

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D E C I S I O N

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A.  Introduction

1.The Applicant was formerly employed by the Putative Respondent (“The Salvation Army”). She began her employment with The Salvation Army on 1 April 2005, and her fixed term contract was renewed each time until it was not further renewed and it expired on 30 September 2022. The Applicant is no longer an employee of The Salvation Army.

2.By a Form 86 dated 27 February 2023, the Applicant seeks leave to apply for judicial review against the decision of Senior Human Resources Officer Ms Sharon Lau Wing Shan (“Ms Lau”) dated 28 November 2022 (“Appeal Decision”), dismissing the Applicant’s appeal against the decision of ex-Social Services Director Ms Li Siu Fan (“Ms Li”), who issued a written warning to the Applicant for her performance in the course of her employment with The Salvation Army (“Written Warning”).

3.I gave directions for The Salvation Army to file an Initial Response to the application, and for the Applicant to file a Reply. After some slippage in the original timetable, both documents were filed in the form of affirmation evidence, the last one being on 27 September 2023. I also indicated that, depending on the contents of those documents, I would decide whether to deal with the application for leave to apply for judicial review on paper, and if so to proceed to do so without further notice to the parties.

4.Having considered the materials, I am of the view that this application can appropriately be disposed of on paper. (The Form 86 did not ask for an oral hearing, and I do not think the request made at the end of the Applicant’s Reply affirmation requires an oral hearing to be fixed.)

B.  Background Facts

B.1  The events that led to the Written Warning

5.Most of the events can be found documented in some form in the materials, including the supervision records and correspondence.

6.On 5 June 2019, Mr Sin Leung Kai (“Mr Sin”), a senior officer, and the Applicant’s immediate supervisor, informed the Applicant that she was falling behind and failing to meet service standards for filing case reports. She was requested to make improvements in this area of her work.

7.On 15 August 2019, Mr Sin informed the Applicant again that she had not shown any improvement in respect of outstanding case review and reports. She was requested to make improvements in this area of her work.

8.On 21 November 2019, Mr Sin reminded the Applicant once again that she had outstanding case review and reports, and had failed to show any improvement.

9.On 28 February 2020, it was discovered that the Applicant had apparently acted outside her authority, in what is said to be a very serious breach of trust. She stopped two social workers’ actions to intervene in a suspected suicide without first obtaining consent and agreement with the two social workers’ direct supervisor as well as from Mr Sin to intervene in such a manner (“1^st Incident”).

10.On 3 March 2020, Mr Sin discovered that the Applicant had failed to submit 11 case review and reports which had been due for completion, and there were 2 outstanding case review and reports, which were pending by 11 months and more than 1 year respectively (“2^nd Incident”).

11.On 3 March 2020, Mr Sin had a supervisory meeting with the Applicant in relation to her performance appraisal. Mr Sin informed the Applicant that in light of 1^st and 2^nd Incidents (collectively, “Incidents”) as well as previous concerns raised about the timely filing of case review and reports, and the failure to address and improve on such behaviour, her performance was unsatisfactory, and that he would recommend to the Social Services Director that a written warning be issued against her (“3 March 2020 Meeting”). The Applicant denies that she was informed by Mr Sin that she was under disciplinary investigation about the Incidents at the 3 March 2020 Meeting. She also maintains that the 3 March 2020 Meeting was merely a supervision session and performance appraisal interview and nothing more.

12.On 29 April 2020, Mr Sin completed a full report (“29 April Report”) explaining his reasons for recommending that a written warning be issued against the Applicant. In producing the 29 April Report, Mr Sin:

(1)  conducted individual interviews with the Applicant about the Incidents, including the supervision session and performance appraisal on 3 March 2020;

(2)  conducted meetings with all the employees involved in the 1^st Incident to investigate what happened, where the meeting took place on 28 February 2020 and the Applicant attended the meeting;

(3)  reviewed reports / records, including:

(a)  Incident reports from the Applicant and each of the other three social workers directly involved in the 1^st Incident;

(b)  WhatsApp communication records from the 1^st Incident;

(c)  supervision record of 5 June 2019, 15 August 2019 and 21 November 2019 (regarding the 2^nd Incident);

(d)  electronic casework information inputted by the Applicant during the period of August 2014 to March 2022 (in respect of the 2^nd Incident);

(e)  the Applicant’s self-evaluation report on the annual performance appraisal report (in respect of both Incidents); and

(f)  the Applicant’s response to the annual performance appraisal report (again in respect of both Incidents);

(4)  reviewed internal guidelines, including (a) guidelines for reporting service information (in respect of the 2^nd Incident); and (b) Service Quality Standards (“SQS”) 11 on regular update of service users’ records (again in respect of the 2^nd Incident).

13.On 5 May 2020, Mr Sin submitted a formal recommendation to issue a written warning after submitting the 29 April Report, in the following terms:

事由 : 建議向鍾凱研發出書面警告: 鍾凱研為屯門東青少年綜合服務之隊長(深宵青少年外展服務)，基於她欠佳的工作表現，現建議向她發出書面警告，以立即糾正她的不當行為，包括: 1)不依從工作指示，干預別人的專業督導,引致服務運作混亂，影響服務介入的成效；及 2)超過一年拖欠個案紀錄及個案覆檢，有違社工專業守則，影響機構的服務質素。考慮鍾凱研行為的嚴重程度,希望透過是次書面警告,她能夠汲取教訓，不再重犯，以符合本軍所期望的專業服務水平。隨通告附上《紀律處分調查報告》，以供參閱。請批准。

14.Following the formal recommendation, the issuance of a written warning was suspended because the Applicant appealed against her 2019/2020 performance appraisal.

15.Between 5 March 2020 and 5 January 2021, The Salvation Army’s Social Services Department conducted extensive investigations in relation to the Applicant’s annual performance appraisal report, including the Incidents.

B.2  The Written Warning

16.Following the investigation by The Salvation Army’s Social Services Department, the Written Warning was issued by Ms Li on 11 January 2021, and provided to the Applicant by Mr Sin on 12 January 2021.

17.The Written Warning stated (as with English translation):

書面警告

根據關於 台端工作表現的報告,顯示 台端於8/11/2019至28/2/2020期間持續不理會上司的工作指示，未有遵從單位的督導機制，引致管理及服務程序混亂，甚至有機會危及案主的福祉，事態嚴重。此外，經上司於2017/2018及2018/2019年度工作評核時的持續督促，台端在3/3/2020年度工作評核當日仍有四宗活躍個案及七宗已結案的個案超過一年而未有完成個案紀錄，另有兩宗個案分別多於一年及十一個月未有任何專業服務介入包括評估案主的服務需要或結案安排,不合符專業社工的服務水平。

本軍於5/3/2020至5/1/2021期間處理 台端提出涉及上述事件的投訴及上訴，直至該等程序完結，確定 台端工作表現欠佳，現發出書面警告，促請 台端作出即時改善，制定及遞交改善計劃，遵從各項指引及工作守則，避免同類事件再次發生；否則，本軍會考慮採取進一步的紀律處分。冀望 台端嚴正改進。

Written Warning

According to your work performance report, it shows that you continuously ignored the work instructions of your superior during the period from 8/11/2019 to 28/2/2020, and did not follow the supervision mechanism of the unit, which led to confusion in management and service procedures, and might even jeopardized the well-being of the clients. The situation was serious. In addition, having been under the continuous supervision of your superior during the appraisal periods of 2017/2018 and 2018/2019, as at 3/3/2020 when it was time for your work appraisal, you still had an outstanding number of work pending the furnishing of records of completed cases stalling for more than one year, namely 4 active cases and 7 closed cases. In addition, there were two other cases in which no professional service intervention, including any assessment of the service needs of the client or arrangements for concluding the cases, has been provided for more than one year and 11 months respectively, in which you did not meet the service standards of a professional social worker.

During the period from 5/3/2020 to 5/1/2021, I handled the complaints and appeals you raised in relation to the above-mentioned incidents until the completion of such procedures. It was ascertained that your work performance was not good, and a written warning was issued to urge you to make immediate improvements, formulate and submit improvement plans, abide by various guidelines and work codes, and avoid similar incidents from happening again; otherwise, I will consider taking further disciplinary action. Improvements with a serious attitude to correct yourself are expected.

B.3  The events after the Written Warning

18.On 26 January 2021, the Applicant wrote by email to Mr Sin stating that she intended formally to appeal (“Appeal”) against the Written Warning given at her interview on 12 January 2021 on the grounds that the procedures in the SQS had not been followed in the process of the disciplinary action against her.

19.On the same day, the Applicant applied for sick leave until 1 April 2021, on the basis of an allegation that she had suffered mental and psychiatric injuries, as a result of her appraisal sessions with Mr Sin and an internal meeting on 20 October 2020. Though out of chronological order, it can be noted here that the Applicant (1) later returned to work from 7 April 2021 until 16 June 2021, except taking sick leave for 5 days, (2) later applied for sick leave because of the alleged psychiatric injuries from 17 June 2021 until 2 March 2022, and (3) upon returning to work, continue to take sick leave, annual leave and vacation leave until the end of her contract on 30 September 2022. This obviously had an impact on the ability to investigate and deal with the Appeal.

20.On 28 January 2021, Mr Sin wrote back by email to the Applicant informing her that the Appeal could be carried out in accordance with the procedures of SQS 5 (‘Human Resources’). He therefore submitted her formal Appeal to the Director of Social Services in accordance with SQS 5, and further informed the Applicant that the Appeal would be referred to the proper person-in-charge for follow up action.

21.On 20 May 2021, the Applicant then lodged a complaint to then Major Helina Chan. She informed Major Helina Chan that Ms Li and Mr Sin had failed to enforce disciplinary action in accordance with the SQS.

22.On 29 May 2021, Major Helina Chan wrote back to the Applicant and told her:

你好！收到你於5月20日發出的電子郵件。因電子郵件內容涉及員工申訴，並非本人或區長的負責範圍，我建議你按照軍區的同工申訴政策 (政策4.2) 把你的申訴呈交機構人力資源總監(Ms Winnie Chui - winnie [email protected]) 及社會服務部總監的上級直屬主管策劃部長 (Major Minny Chan - [email protected]). 謝謝!

(English Translation) Hello! I received your email on May 20^th. Since the content of the email involves employee complaints, which does not fall within the scope of responsibilities of myself or those of the District Chief. I suggest that you submit your complaint to the organization's Human Resources Director (Ms Winnie Chui - winnie chui@ hkm.salvationarmy.org) and the Planning Director who is the immediate superior of the Social Service Director (Major Minny Chan - [email protected]), in accordance with the Military District’s Employee Complaint Policy (Policy 4.2). Thanks!

23.On 1 June 2021, the Applicant sent an email to Major Minny Chan regarding the Written Warning and what she said were Ms Li and Mr Sin’s failures to adhere to the SQS. The email set out the following particulars:

(1)  Mr Sin, for the first time, informed the Applicant on 3 March 2020 that disciplinary measures would be taken against her. But he had never explained to her what incidents happened between 8 November 2019 and 28 February 2020, including the number of incidents, and the details of the incidents.

(2)  Mr Sin knew that his statement in his report was untrue with respect to the level of service provided in the “two other cases”, and Mr Sin admitted to the Applicant it was a misunderstanding in a meeting as early as 19 June 2020. Consequently, Ms Li erred as she had not properly verified the truth of that incident before issuing the Written Warning.

(3)  During the disciplinary process Mr Sin, Mr Ramy Chak (General Manager) and Ms Li failed to comply with Appendix 7 to SQS 5 of The Salvation Army Disciplinary Process and Guidelines (“Guidelines”). (The details of the alleged failure to comply with the Guidelines are identical to those in the 1^st ICHC Complaint set out below.)

24.The Applicant then lodged a complaint, in respect of The Salvation Army’s failure to adhere to the SQS when conducting its disciplinary investigation and issuing the Written Warning, to the Lump Sum Grant (“LSG”) Independent Complaints Handling Committee (“ICHC”) on 16 June 2021 (“1^st ICHC Complaint”). The LSG ICHC was set up in April 2009, and handles LSG-related complaints that cannot be satisfactorily addressed by non-governmental organisations (“NGOs”) subvented by the Social Welfare Department (“SWD”).

25.The 1^st ICHC Complaint was made by the Applicant without waiting for the result of her Appeal against the Written Warning. In her 1^st ICHC Complaint, the Applicant stated (in English translation):

Complaints about The Salvation Army

Complaints (1)

The organization failed to handle staff disciplinary matters in accordance with the policies and procedures of “Service Quality Standard 5: Human Resources”

Under the circumstances that I have no way of knowing what Mr Sin has accused me of, Mr Sin has never given me the following:

1. Verbal Persuasion.

2. Opportunities for improvement and set a behavior improvement plan and a deadline for review.

3. Inform an employee whose performance is not satisfactory and displays disorderly conduct of the fact that their conduct might be subject to disciplinary action.

Under the circumstances that I have no way of knowing what Mr Sin accused me since Mr Sin never mentioned the contents of the incidents in the written warning:

1. arranged individual interviews or meetings with me nor arranged to have me signed any relevant records of interview.

2. Arranged with the relevant employee for individual interviews or meetings nor arranged to have relevant employee sign any relevant records of interview.

Based on the above grounds, it could be seen that Mr Sin did not comply with the Guideline for Implementation concerning Items 3.1 and 3.2 in implementing the disciplinary action against me. Yet Ms Li still so approved and issued a written warning against me.

Mr Sin handed over the written warnings to me on 12/1/2021 and told me to sign it. At that time, I refused to do so, and Mr Sin directly gave me a written warning in duplicate, but no follow-up has been done so far. It could be seen that Mr Sin and his immediate superior, Ms. Ramy Chak did not follow the guideline, “If the employee refuses to sign, the witness of the supervisor’s immediate supervisor is required for … the record has been drawn to the attention of the relevant employee.”, in handling the disciplinary action against me.

Complaints (2)

The organization fails to handle employee appeals in accordance with the policies and procedures of “Service Quality Standard 15: Complaints”

On 1/6/2021, I sent an email with the subject of “Complaint against the management staff of the Social Service Department for failure to comply with Service Quality Standards to Major Minny Chan, Commander of the Hong Kong and Macau Military Region of The Salvation Army. Afterwards, I did not receive any reply, so I called the office of Major Minny Chan on the morning of 8/6/2021 and was assisted by her secretary who conveyed my message. In the afternoon of the same day, I received an email from Major CHAN Hei Wai, Secretary-General of the Hong Kong and Macau Military Region of The Salvation Army, stating that Major Minny Chan had referred the complaint I mentioned in the email to him for him to handle it.

However, as of 16/6/2021, I have not received any news about the follow-up of the complaint (according to 2.2 and 2.11 of Annex 1 of the Service Quality Standard 15, the initial hearing should be carried out within five days of receiving the complaint, and so far more than seven days), therefore making this complaint.

26.The ICHC considered the Applicant’s 1^st ICHC Complaint and informed the Applicant on 26 October 2021 (“1^st ICHC Decision”) (in English translation):

Following the “Lump Sum Grant Independent Complaints Handling Committee” (the Committee) Secretariat’s emails on 21 June, 25 June and 9 August 2021 regarding the subject matter, the Secretariat has sent information related to the complaint, including the complaint (see attachment), the organization’s reply to you, your dissatisfaction and opinions on the organization’s reply, the relevant materials you submitted and the supplementary information provided by the organization and submitted to the Committee for consideration. After detailed deliberation by the Committee, the Secretariat is authorized to reply to you, and its decision as follows:

Complaint (1)

After reviewing all your information, the Committee considers that there is no objective information to show that the organization has violated Item 3.1 of the Implementation Guidelines of Annex VII “Implementation of Disciplinary Action Policies and Procedures” of the organization’s “Service Quality Standard 5” in handling the above matters. However, during the investigation, the organization did not arrange individual interviews or meetings with the complainant so as to understand the situation, which violated the requirements of Item 3.2 of the Implementation Guidelines. In this regard, the Secretariat has sent a letter to the organization according to the Committee’s instruction, urging the organization to implement the relevant procedural guidelines in order to protect reasonable rights and interests of employees.

Regarding the Complainant’s appeal against her disciplinary action, the Committee is of the view that the organization has provided a reasonable explanation for its decision to suspend the execution of Item 3.4 of the Implementation Guidelines. However, the Committee considers that the organization still needs to maintain contact and communication with the complainant on the follow-up arrangements for handling the appeal. In this regard, the Secretariat has sent a letter to the organization according to the instructions of the Committee, reminding the organization to maintain good communication with the complainant to avoid unnecessary misunderstanding or dispute.

Complaint (2)

After reviewing the relevant materials, the Committee believes that the organization has made investigations and reasonable explanations for the above complaints. As there is no objective information showing that the organization has violated its “Best Practice Guidelines” or related guidelines, the Committee decided not to follow up further.

27.On 26 November 2021, The Salvation Army issued a response to the ICHC regarding its 1^st ICHC Decision. In the response, The Salvation Army explained its understanding, namely, that the phrase “包括” means “includes” and does not require each and every investigation to arrange interviews. Further, in the same response, The Salvation Army stated that its understanding was that every investigation depends on the individual circumstances of each case. Additionally, in this particular case, the objective documentary evidence was very clear and Mr Sin had conducted an interview meeting with the Applicant in accordance with the Guidelines.

28.On 14 December 2021, the ICHC responded to The Salvation Army’s response to the 1^st ICHC Decision, and confirmed that the points were noted.

29.By way of an email dated 10 August 2022 from Mr Sin, the Applicant was informed (among other matters), as she was resuming her duties on 11 August 2022, that according to the Written Warning she needed to formulate and submit an improvement plan for remedying continuously ignoring her supervisor’s instructions, including complying with the supervision mechanism and submitting case records on time.

30.Between 11 and 31 August 2022, the Applicant communicated with members of staff at The Salvation Army. Within those communications, the Applicant expressed her shock and dismay that The Salvation Army had not followed up with the 1^st ICHC Decision.

31.The Applicant wrote to the ICHC again seeking help regarding her situation (“2^nd ICHC Complaint”). In the 2^nd ICHC Complaint it was stated (in English translation):

Complaints about The Salvation Army

Complaints (1)

On 26 January 2021, I appealed the Director of Social service of The Salvation Army, the immediate supervisor of Mr Sin, against the written warning issued to me on 12 January 2021. Mr Sin replied on 28 January that it had been forwarded to the Director of Social Service for follow-up. Furthermore, according to a letter dated 26 October 2021 from the Lump Sum Independent Complaints Committee (the Committee), The Salvation Army breached Service Quality Standard 5 in handling the disciplinary action. However, it has been more than one and a half years since I lodged my appeal, and I still have not received the result of my appeal. In my opinion, The Salvation Army violated the requirements of “Service Quality Standard 5” and failed to follow up on the recommendations issued by the Committee.

Complaints (2)

In the case that the above-mentioned written warning appeal has not yet been resolved, my immediate superior Mr Sin, Senior Officer sent me an email to implement the written warning on 10 August 2022, and asked me to formulate an improvement plan. I think this ignores the Committee’s recommendations and was in breach of Service Quality Standard 5.

32.On 31 August 2022, The Salvation Army through Ms Lau, replied to the applicant informing her (among other things), that the Applicant’s ICHC and EOC investigation results did not support the Applicant’s complaints:

… In regard to the decision of the Lump Sum Grant Independent Complaints Handling Committee (ICHC), we hereby reiterate that the ICHC did not proceed with your complaint against the Salvation Army. The ICHC stated in its report that“沒有客觀資料顯示機構在處理上述事宜時有違反機構「服務質素標準五」附件七「執行紀律處分政策及程序」執行指引第3.1項。” and “由於沒有客觀資料顯示機構有違反其「最佳執行指引」或相關指引，委員會議決不會進一步跟進。” We therefore reject your allegation that we “在知悉整筆撥款獨立處理投訴委員會就本人投訴最終裁定結果的情況下，仍拒絕就錯誤作出改正及按建議跟進改善”. The ICHC accepted the Salvation Army's explanation as to the suspension of executing item 3.4 of the guidelines. ICHC only encouraged the Salvation Army to stay in contact and two-way communication with you. Please note that it is not an order but only a suggestion from ICHC. …

33.On 28 November 2022 – it can be noted that this was after the Applicant’s employment had ended after her last contract extension expired without renewal on 30 September 2022 – the Appeal Decision was finalised and stated that the appeal was not justified and the result of the disciplinary action remains unchanged. The Appeal Decision set out the contents of the appeal and the grounds for non-justification of the appeal.

回覆書面警告上訴

有關 台端就高級主任冼良佳先生於12.1.2021會面時發出的書面警告作出上訴，本人接獲社會服務總監委派覆檢相關紀錄，認為上訴不成立，有關紀律處分結果維持不變。現按 台端的上訴內容闡述理據如下:

上訴內容

在本人 (「鍾凱研」下稱鍾女士) 無從得知冼先生指控本人(鍾女士)的事件為何事的情況下，冼從未對本人(鍾女士):「1作出口頭勸喻;2.給予改善機會，並設定行為改善計劃及檢討時限；及3.及早通知觸犯工作表現欠佳和行為不檢的員工，其行為有可能構成紀律處分」。

在本人(鍾女士)無從得知冼先生指控本人(鍾女士)的事件為何事的情況下，冼從未就書面警告提及之內容：1.與本人(女士)安排個別面談或會議，亦從未有相關由本人(鍾女士)簽署之會面紀錄；及2.與有關員工安排個別面談或會議了解情況，亦從未有相關由有關員工簽署之會面紀錄。

基於上述理據，可見冼並未有依據執行指引第3.1、3.2項處理本人(鍾女士)之紀律處分。然而，李笑芬女士仍然審批及對本人(鍾女士)發出書面警告。

不成立理據如下:

上訴負責人員認為於處理此紀錄處分個案時，相關人士已進行有關的調查工作，包括審視及翻查有關之服務紀錄、督導紀錄、由相關員工提供的特別事件報告，以及其他相關紀錄等。

而在「服務質素標準五」附件七第3.2項所列舉的項目,包括「安排個別面談或會議，與當事人、其直屬上司或有關員工了解情況,以及翻閱紀錄等」，上訴負責人員了解後並知悉此原意是給執行人員作為可採取的行動參照，而並非是一個連續的步驟，相關人士可按個別情況及需要而决定採取所需的調查方法。

另外,有關 台端指出無從得知冼先生指控 台端的事件為何事的情況下，違反該執行指引第3.1項的要求。上訴負責人員審視有關資料認為，沒有客觀資料顯示相關人士處理紀錄處分個案時有違反「服務質素標準五」附件七第3.1項。

故上訴內容不成立。

(English Translation) Reply to Written Warning Appeal

Regarding your appeal against the written warning issued by the Senior Officer Mr Sin during the meeting on 12.1.2021, I was appointed by the Director of Social Services to review the relevant records. I consider the appeal not justified, and the result of the disciplinary action remains unchanged. Now according to the contents of the appeal, your grounds of complaints are as follows:

Contents of Appeal

Under the circumstances that I [the Applicant] have no way of knowing what Mr Sin has accused me [the Applicant] of, Mr Sin has never given me [the Applicant] the following: “1. Verbal Persuasion. 2. Opportunities for improvement and set a behavior improvement plan and a deadline for review; & 3. Inform an employee whose performance is not satisfactory and displays disorderly conduct of the fact that their conduct might be subject to disciplinary action.”

Under the circumstances that I [the Applicant] have no way of knowing what Mr Sin accused me [the Applicant] of since Mr Sin never mentioned the contents of the incidents in the written warning: 1. arranged individual interviews or meetings with me [the Applicant] signed any relevant records of interview; & 2. Arranged with the relevant employee for individual interviews or meetings nor arranged to have relevant employee sign any relevant records of interview.

Based on the above grounds, it could be seen that Mr Sin did not comply with the Guideline for Implementation concerning Items 3.1 and 3.2 in implementing the disciplinary action against me [the Applicant]. Yet Ms Li still so approved and issued written warning against me [the Applicant].

The grounds for non-justification of the Appeal are as follows:

The person in charge of the appeal believes that when handling this case of disciplinary action, the relevant persons have already conducted relevant investigations, including reviewing and checking relevant service records, supervision records, special incident reports provided by relevant employees and other relevant records.

The items listed in Item 3.2 of Annex VII of “Service Quality Standard 5” including “arranging individual interviews or meetings, understanding the situation with the parties, their immediate superiors, or relevant employees, and reviewing records, etc.” Knowing that this is intended to serve as a reference for the action that can be taken by the executive, rather than a continuous step, the relevant parties can decide to adopt the required investigation methods according to individual circumstances and needs.

In addition, with regard to your pointing out that the requirements of Item 3.1 of the implementation guidelines was violated because you had no way of knowing what Mr Sin accused you of in the incident. The person-in-charge of the appeal reviewed the relevant information and found that there was no objective information showing that the relevant person violated Item 3.1 of Annex VII of the “Service Quality Standard 5” when handling the disciplinary case.

Therefore the contents of the appeal are not justified.

34.Subsequently, on 10 February 2023, the ICHC gave its decision regarding the Applicant’s 2^nd ICHC Complaint (“2^nd ICHC Decision”) (in English translation):

Following the “Lump Sum Grant Independent Complaints Handling Committee” (Committee) Secretariat’s emails on 17 November 2022 regarding the subject matter, the Secretariat has sent information related to the complaint, including the complaint (see attachment), the organization’s reply, the relevant materials you submitted and the supplementary information provided by the organization and submitted to the Committee for consideration. After detailed deliberation by the Committee, the Secretariat is authorized by the Committee to reply to you, and its decision is as follows:

Complaints (1) & (2)

After reviewing the relevant information, the Committee considered that the organization had justified the suspension of the complainant’s appeal against her disciplinary action. However, the Committee believes that it is extremely unreasonable for the organization to ask the complainant to follow up on the improvement plan that she has to submit due to disciplinary action before completing the relevant appeal process and formally replying to the complainant which should be corrected. At the same time, the Committee noted that the organization’s “Service Quality Standard 5” (“Standard 5”) guidelines on disciplinary action did not clearly explain the implementation details of handling appeal applications, such as the time limit for reply and the suspension of disciplinary action and the like during the processing of appeal applications. In this regard, the Secretariat has sent letters to the organization according to the Committee’s instructions, urging the organization to review and revise the content of the relevant guidelines to avoid unnecessary disputes and misunderstandings.

In addition, the Secretariat has sent a letter to the organization to conduct individual interviews or meetings for employees to understand the situation when conducting disciplinary investigations and urges the organization to implement its “Standard 5”, the requirement in item 3.2 of “Implementing Disciplinary Action Policies and Procedures” Annex 7 to protect the reasonable rights and interests of employees.

35.At different dates before and after the non-renewal of the Applicant’s fixed term contract, the Applicant also commenced proceedings in the Labour Tribunal (LBTC 2803/2022) and in the District Court for employees compensation (DCEC 376/2022). The Applicant also had an ongoing EOC claim against The Salvation Army.

C.  The Salvation Army

C.1  Background

36.The Salvation Army is an international Christian church and charity working in 133 countries and areas, and has been serving Hong Kong for over 90 years since 1930, with the commitment of transforming, caring for people and making disciples. It is a large organisation which comprises Church ministries, social services, educational services, and charitable services.

37.The Salvation Army operates over 80 social services units, 36 schools and education centre, 17 corps (churches) and one outpost, and 15 family stores in Hong Kong and Macau. There are also offices in Yunnan and Sichuan Province for community development.

38.In 1951, the Hong Kong Legislative Council formally incorporated The Salvation Army as a statutory corporation for the purpose of having perpetual succession under the Salvation Army Ordinance Cap 1062 (“SAO”).

39.The SAO contains a handful of provisions:

(1)  Section 2 formally incorporated The Salvation Army as a corporation sole having perpetual succession.

(2)  Section 3 provides The Salvation Army with the express powers of a corporation, among other things, to purchase and possess properties and chattels, etc.

(3)  Section 4 allows The Salvation Army to use a corporate seal.

(4)  Section 5 states that the change of person holding office of The General of The Salvation Army shall not affect any property or interested vested in The Salvation Army.

(5)  Section 6 provides for who is to be deemed The General of The Salvation Army.

(6)  Section 7 allows The Salvation Army to appoint attorneys.

40.There are no statutory provisions regulating The Salvation Army in respect of matters concerning employment contracts and internal performance appraisals and disciplinary conduct of employees/staff.

C.2  Social Services of The Salvation Army

41.For the purpose of its social services, the Salvation Army receives subvention from the SWD. As already stated above, the SWD is the government department responsible for developing and co-ordinating welfare services in Hong Kong and provides subventions to NGOs. Since January 2001, the SWD operates on a LSG subvention system. The amount is provided on the NGO basis, pursuant to funding and service agreements. By giving a LSG to an NGO, it allows the NGO to have autonomy and flexibility in deployment of subvention resources to meet service needs. Unspent subvention can be accumulated in a reserve to meet future spending, up to 25%.

42.The SWD LSG subvention makes up around 65-68% of The Salvation Army’s social services budget, and the rest is covered by other funding sources and donations obtained elsewhere. To obtain such LSG subventions, NGOs such as The Salvation Army must enter into a funding service agreement (“FSA”) for each service that is provided. The Salvation Army has 52 FSAs drawn up to date.

43.Each FSA will include Output Standards, Outcome Standards, Essential Service Requirements, and the need to observe the 16 SQS as well as the need to follow the requirements laid down in the LSG Manual and Circulars. The NGOs are also required to adopt the best practice laid down in the Best Practice Manual developed by the LSG Steering Committee.

44.The SQS does not have any statutory underpinning. But it is set out as a guideline for SWD-subvented organisations to follow in their day-to-day operations, to enable effective use of LSGs.

C.3  The LSG Manual

45.The Social Welfare Services LSG Manual dated October 2016 (“LSG Manual”) provides for how the SWD will administer the LSG. The purpose of the LSG Manual is to set out (a) the structure of LSG, the arrangements for Provident Fund provision and other related matters; (b) the financial management under LSG; (c) the respective management under LSG; and (d) advice on management practices and processes. Sub-paragraph (d) is meant for NGOs’ reference, and it is open to individual NGOs to adopt these as appropriate to fit their individual organisation.

46.Chapter 4 of the LSG Manual sets out the roles and responsibilities of SWD and NGOs and issues of public accountability and the authority of the Audit Commission. In particular, Chapter 4 provides:

PUBLIC ACCOUNTABILITY

4.1 … While the statutory responsibility for the control and management of social welfare subventions rests with the Director of Social Welfare, a public accountability framework has to be put in place to ensure that NGOs receiving Government subventions are accountable, through the Director of Social Welfare, to the public for the use of public funds. …

ROLES AND RESPONSIBILITIES OF DIRECTOR OF SOCIAL WELFARE

4.2 As the head of department executing the Government’s social welfare policy, the Director of Social Welfare is responsible for ensuring that social welfare services, whether these are delivered by SWD or by NGOs, are meeting the Government’s policy objectives, and that they remain so in the light of changing circumstances. The Director has to work closely with service providers to review the effectiveness of the services rendered.

4.3 As the controlling officer for the social welfare subventions, the Director of Social Welfare is responsible for ensuring that subvented activities are properly and effectively planned, delivered and evaluated. The Director has to obtain regular feedback from service providers in the process of service planning and evaluation.

4.4 To help discharge the above roles and responsibilities, the Director of Social Welfare, having regard to the Funding and Service Agreement, is empowered to:

(a) Impose conditions on the granting of LSG;

…

ROLES AND RESPONSIBILITIES OF NON-GOVERNMENTAL ORGANISATIONS

4.5 NGOs receiving Government subventions are responsible for effective planning and the cost effective administration and of the services and activities governed by the FSAs. In discharging this role under the LSG, NGOs are expected to build in accountability mechanism and to be flexible and proactive in responding to the changing needs of the community.

…

ACCOUNTABILITY OF NON-GOVERNMENTAL ORGANISATIONS

Proper and Prudent Use of Public Funds on FSA or FSA-related Activities

4.9. NGOs receiving LSG and other social welfare subventions are directly accountable to SWD and the public for the proper and prudent use of public funds. It is the responsibility of NGOs’ board and management to maintain proper control of the LSG and ensure that the use of the LSG meets the requirements and objectives set out in the FSAs and complies with the conditions spelt out in this manual. To avoid misunderstanding, NGOs should consult SWD in a timely manner as to what constitutes “FSA-related” activities before conducting such activities. NGOs are expected to ensure that the LSG is spent in the most cost-effective manner and for the intended purposes. NGOs must also ensure effective management of income. …

47.In short, the SWD and the NGO (in this case The Salvation Army) are required to follow the LSG Manual and ensure that there is no mismanagement or mishandling of publicly granted LSG funds.

C.4  The SQS Regime

48.While the SQS does not have any statutory underpinnings, NGOs are required to meet the requirements of the 16 SQS as set out in the relevant FSAs.

49.The SQS was developed according to four core principles, namely to:

(1)  clearly define the purpose and objectives of the service and make its mode of delivery transparent to the public;

(2)  manage resources effectively with flexibility, innovation and continuous quality improvement;

(3)  identify and respond to specific service users’ needs; and

(4)  respect the rights of service users.

50.The relevant SQS criteria, in the present application is SQS 5, which relates to principle (2) above, and which states:

SQS 5  The service unit/agency implements effective staff recruitment, contracting, development, training, assessment, deployment and disciplinary practices.

5.1  The service unit/ agency has policies and procedures on staff (including part-time staff) recruitment, deployment and promotion, employment contracting and disciplinary actions, and such policies and procedures are accessible to staff.

5.2  The service unit/ agency has induction policy and procedures for new staff.

5.3  The service unit/agency provides on-going supervision for staff and conducts regular performance reviews/ appraisals for identifying areas for performance improvement and needs for ongoing training and development.

5.4  The service unit/agency has a training policy and a plan for staff training and development.

51.To assist NGOs in implementing the SQS, the SWD issued the SQS Implementation Handbook (“Handbook”). The Handbook recommends (among other things) that the NGO (1) has policies and procedures accessible to staff in relation to employment contracts and disciplinary actions, (2) has a policy spelling out the mechanisms for supervision and regular performance appraisals, and (3) ensures that the policies, procedures and plans are implemented.

52.The Handbook expressly states that the guidelines in it were prepared to assist an NGO in developing procedures for taking disciplinary actions related to staff matters, and for use as a reference document. In its use of language, including the word ‘guidelines’ and ‘contents of procedures proposed’, it can be seen that the purpose of them is to guide, to assist, to recommend, to propose, to permit – but not to mandate. The Handbook states that the adoption of the guidelines is a matter for each NGO depending on their size and structure – obviously, there is no ‘one size fits all’ approach that can be adopted by every NGO.

53.The Handbook suggests the proposed content for disciplinary action policy and procedures, including specifying the criteria for action, the various disciplinary actions that may be taken (warning/dismissal), a process for administering disciplinary actions, appropriate levels of authority for disciplinary actions, an appeal or mechanism that can safeguard the improper use of disciplinary actions, and time limit on investigating and responding to the appeal. There is no requirement or mandate for any in-person meeting or oral hearing like a court or tribunal.

54.Put simply, the requirement for implementation and enforcement of SQS 5 is for each NGO, and The Salvation Army was broadly free to implement its own policies and procedures as it saw appropriate to its particular needs.

C.5  The Salvation Army’s Implementation of SQS 5

55.The Salvation Army has established its own guidelines, i.e., Appendix 7 to SQS 5 of the Guidelines.

56.The policy aims of the Guidelines are to set out a fair procedure for dealing with violations and misbehaviour of employees. Its aim is to investigate allegations of misbehaviour or misconduct before disciplinary action is taken, and to allow employees to appeal if they disagree.

57.Under Appendix 7 to SQS 5 of the Guidelines:

(1)  Paragraph 1 sets out the conduct which may lead to disciplinary action. This includes in paragraph 1.1 poor job performance which involves, among other things, ignoring work instructions, procedures and guidelines, serious or wilful negligence of duties and failure to maintain a satisfactory level of service.

(2)  Paragraph 1.3 sets out the considerations which may be taken, including the severity of the incident, the frequency of wrongdoing and any improvements;

(3)  Paragraph 2 sets out the level of authority required to issue the type of disciplinary action. In this case, a written warning can only be issued by the Social Services Director, Ms Li; and

(4)  Paragraph 3 sets out the procedure for dealing with disciplinary action and the appeal mechanism. Of particular note for present purposes are paragraphs 3.1 and 3.2 which state (in English translation):

3.1  If an employee’s performance is not as good as expected, the immediate supervisor should give verbal advice first, provide opportunities for improvement, and set a behaviour improvement plan and review time limit. Immediate supervisors should promptly notify employees who are found to be guilty of poor performance or misconduct, whose conduct may constitute disciplinary action. If an employee refuses to change despite repeated advice or if the fault is very serious, disciplinary action may be considered.

3.2  If prima facie evidence of misconduct is established, an investigation will be launched, including arranging individual interviews or meetings, understanding the situation with the parties concerned, as well as their immediate superiors or relevant employees, and reviewing records, etc. The investigation report should be completed within 24 days from the day when the immediate superior is informed of the incident, including the details of the incident, witness (if any) reports, suggested disciplinary actions, employee responses, review and follow-up. All meetings must be recorded, and such records shall be signed by the attendees. If the employee refuses to sign, it shall be noted in the record.

58.Paragraph 3.7 deals with the procedures on appeal.

C.6  The LSG Complaints Mechanism

59.The LSG ICHC was set up in April 2009.

60.The terms of reference of the ICHC are:

(1)  To receive LSG-related complaints against NGOs which cannot be satisfactorily addressed at the NGO level.

(2)  To handle LSG-related complaints such as misuse of subventions, NGOs’ management decisions that have a direct impact on service performance and non-compliance with service requirements.

(3)  To relay the ICHC’s decisions and recommendations on LSG-related complaints to SWD so that appropriate follow-up action may be taken by SWD. The ICHC may also give recommendations to the SWD to enhance the LSG subvention system.

61.The ICHC has no coercive powers except to report its decisions and recommendations to relevant agencies to the Director of the SWD to assess whether or not further action is to be taken against the relevant service provider/agency.

62.I note in the (revised) February 2023 ICHC Mechanism for Handling Complaints it states that complaints about the handling of individual cases, or the performance or attitude of staff fall outside the ambit of the ICHC.

D.  Proposed Grounds of Review and Relief Sought

63.In her Form 86, the Applicant seeks an order of certiorari to dismiss the Appeal Decision and the Written Warning.

64.The proposed grounds set out in the Form 86 are:

(1)  The Salvation Army failed to follow Item 3.2 of the Guidelines in respect of its investigation and disciplinary action of the Applicant’s conduct (for which she was admonished with a Written Warning). Additionally, when The Salvation Army was aware that it did not comply with the Guidelines and it failed to rectify the issue with remedial measures.

(2)  The disciplinary action was procedurally unfair. The Applicant was (i) not properly informed of the allegations she faced in the disciplinary investigation/proceedings, and consequently (ii) she was not provided with an opportunity to refute the allegations made against her, in particular through an oral interview/meeting.

E.  Amenability to Judicial Review

65.The general principles regarding amenability are well settled, and are as follows:

(1)  Judicial review is generally confined to reviewing matters of a public nature as opposed to those of a purely private character.

(2)  The mere presence of some public element may not be sufficient to transform a decision into a public law decision.

66.In this regard, Andrew Cheung J (as the Chief Justice then was) summarised the relevant principles in Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215 (upheld on appeal in [2010] 5 HKLRD 490) at §57:

(1)  Only a decision made in the public law domain is amenable to judicial review.

(2)  Whilst the nature of the source of power or discretion is by no means irrelevant, it is the nature of the functions that the decision-maker was performing when making the decision under challenge that is of crucial importance.

(3)  In the absence of fraud, corruption, bad faith and breach of law, a purely commercial decision, or a decision made in the performance of a purely commercial function, is most likely a private law decision, not amenable to judicial review.

(4)  Put another way, the presence of a public element(s) of sufficient significance in the decision-making process could turn an otherwise commercial decision into a public law decision, amenable to judicial review.

(5)  What is sufficient is a matter of fact and degree, depending very much on individual cases. No hard and fast rule can be laid down. It is, in a borderline case, very much a matter of overall impression and one of degree.

67.From the relief and the proposed grounds set out by the Applicant, it seems there are two central issues from the Applicant’s perspective, namely (1) whether the internal disciplinary guidelines were properly followed; and (2) whether she was given a fair opportunity to refute the allegations made against her in the disciplinary proceedings (primarily on the basis that she was unaware of the ‘incidents’ referred to in the Written Warning).

68.It is plain that the true nature of the Applicant’s case is an employment dispute – i.e. whether she ought to have been disciplined in the course of her employment. This is an example of a private law matter which should not be resolved by the Court’s judicial review machinery, and the kind of complaint that is not amenable to judicial review. Reference can also be made to Greechan v States Employment Board [2023] JRC 116, a decision of the Jersey Royal Court, at §§20-35 where Sir Timothy Le Cocq, Bailiff, set out a thorough review of the principles relating to amenability to judicial review in relation to employment matters.

69.While it is true to say that employment matters are not automatically immune from judicial review – see, for example, my recent decision in Tong Wai Yee Winnie v Secretary for Education and Another [2022] HKCFI 1402 at §§134-135 – it seems to me that, in this case, the thrust of the Applicant’s claim is clearly based on an alleged breach of private law duties. The allegation is that The Salvation Army as employer has failed to properly follow its internal guidelines (which were based on a requirement of an FSA to implement SQS) and thereby failed to provide the Applicant with a fair opportunity to refute the allegations, which led to the taking of disciplinary action against her. At its core, the Applicant has not claimed that The Salvation Army has breached any duties of a public law nature.

70.I accept there are some public aspects concerning The Salvation Army, including that:

(1)  The Salvation Army was formally incorporated under the SAO for the purpose of having perpetual succession;

(2)  The Salvation Army receives a significant portion of its funding through FSAs;

(3)  The Salvation Army has to act in accordance with the public accountability framework under the LSG Manual (when it receives LSG). But I note that the accountability framework is essentially to ensure that the LSG is spent in the most cost-effective manner and for the intended purposes – it does not extend to the internal management of NGOs and internal employment disputes; and

(4)  the FSAs require NGOs, including The Salvation Army, to meet the SQS requirements.

71.I also note the Applicant’s suggestion that the necessity to enter into the FSA and the corresponding obligation to comply with the SQS is not merely a matter of agreement between the Government and the supplanted organisation, nor a matter solely concerned with obtaining Government’s funding. Rather, the Applicant says, it is a mechanism by which the Director of Social Welfare seeks to discharge her role and responsibilities to ensure that the social welfare services provided by the sub printed organisations are meeting Government’s policy objectives and are held accountable not only to the Government but also to the public.

72.However, I disagree that those various matters which identify the presence of some public elements are of sufficient significance in the decision-making process as could turn an otherwise private law decision into a public law decision, amenable to judicial review. The nature of the functions that the decision-maker was performing when making the decision under challenge in this case is of crucial importance, and that nature here seems to me to be undoubtedly about a (private) employment/disciplinary matter. The Applicant is not an officeholder. Whilst The Salvation Army in part uses public funds, which is subject to supervision to ensure accountability as to their proper use, it is not itself a public body. Further, as reflected from the private employment nature of the matter, the Applicant has herself commenced various alternative claims seeking remedies arising out of that employment relationship.

73.Overall, I do not find that there are any sufficiently significant public elements in the decision-making process to turn this private employment dispute into a public one. Applying the settled principles, this case seeks to raise a private law matter not amenable to judicial review. On that basis, I refuse to grant leave to apply for judicial review.

74.In any event, irrespective of my views on amenability, I would have refused the application for leave on the merits, which I can now address.

F.  Merits of the Grounds

F.1  1^st Ground of Review: failure to follow Item 3.2 of the Guidelines

75.The Applicant alleges that The Salvation Army failed to follow the Guidelines in the provision of any personal interview or meeting for the Applicant so as to enable it to gain an understanding of the situation in the course investigation for disciplinary action.

76.Specifically, the Applicant alleges that The Salvation Army failed to follow Item 3.2 of the Guidelines. Though I have already set out that provision above, it can be usefully repeated here (in both Chinese and English). Item 3.2 states (emphasis added):

3.2 若執行紀律處分的初步證據成立，將展開調查工作,包括安排個別面談或會議，與當事人、其直屬上司或有關員工了解情況，以及翻閱紀錄等。由直屬上司得知事件發生當日起計，應於廿四天內完成調查報告,包括詳細事件始末、證人(如有)報告、建議處分項目、員工回應及檢討和跟進，所有會面需紀錄在案，並由出席者簽署，如員工拒絕簽署，需於紀錄內註明。

3.2 If prima facie evidence of misconduct is established, an investigation will be launched, including arranging individual interviews or meetings, understanding the situation with the parties concerned, as well as their immediate superiors or relevant employees, and reviewing records, etc. The investigation report should be completed within 24 days from the day when the immediate superior is informed of the incident, including the details of the incident, witness (if any) reports, suggested disciplinary actions, employee responses, review and follow-up. All meetings must be recorded, and such records shall be signed by the attendees. If the employee refuses to sign, it shall be noted in the record.

77.The language of Item 3.2 is sufficiently clear. The starting point is that these are guidelines. They are not fixed rules, and are not to be mechanistically deployed. The paragraph does not mandate that an interview or meeting take place in all investigations of disciplinary misconduct. It merely states that, amongst the steps that might be taken, and in the course of an investigation, and if he believes necessary properly to understand the situation, the superior can arrange for individual interviews or meetings to assist in the completion of his/her investigation report.

78.The reason for such flexibility and discretion is obvious. Every disciplinary investigation differs and the process of such an investigation would be dictated by its individual circumstances. I therefore do not find that the Salvation Army has arguably breached Item 3.2 of the Guidelines.

79.With respect to the 1^st ICHC Decision, the real issue is not whether an interview or meeting took place (in accordance with the Guidelines), but whether the investigatory and disciplinary process undertaken was fair. That is linked to the proposed 2^nd Ground.

F.2  2^nd Ground of Review: procedural unfairness

80.The Applicant contends that the disciplinary procedure adopted was unfair, because she was denied any chance clearly to understand The Salvation Army’s allegations towards her, thereby making it impossible for her to make explanation about such allegations.

81.While there is a constitutional guarantee for a fair trial or hearing in all criminal proceedings or civil suits, there is no common law right to be heard in the context of disciplinary proceedings nor does natural justice demand a right to be heard. Instead, the Courts’ main concerns are whether the process followed was fair.

82.The content of procedural fairness is flexible. It is not possible to lay down rigid rules, and everything depends on the subject-matter. The requirements depend upon the facts and the context in which a decision is taken, including the nature of the legal and administrative system within which the decision is taken. The requirements necessary to achieve fairness range from mere consultation at the lower end, upwards through an entitlement to make written representations, to make oral representations, and to a fully-fledged hearing with most of the characteristics of a judicial trial at the other extreme. What is required in any particular case is incapable of definition in abstract terms. As Lord Bridge has put it in Lloyd v McMahon [1987] AC 625 at 702:

… the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.

83.The same was reiterated by Lord Mustill in R v Secretary for the Home Department Ex p Doody [1994] 1 AC 531 at 560, noting that what fairness requires is “essentially an intuitive judgment”. Amongst the points that can be made are:

(1)  Where a statute confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2)  The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3)  The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4)  An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5)  Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.

(6)  Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.

(7)  Ultimately, whether a particular procedure is fair will depend upon all the circumstances, including the nature of the applicant’s interest, the seriousness of the matter for him and the nature of any matters in dispute.

(8)  Hence, the broad question is whether the process was conducted in such a manner as to enable the real issues or questions to emerge, and for them to be fairly resolved.

84.It can be noted that these principles start from the consideration of where an administrative power is conferred by statute, but the general approach to fairness is helpful.

85.The Applicant claims that she was unaware of the allegations made against her in the Written Warning, and consequently she was deprived of a fair opportunity to refute those allegations. But, this is contradicted by the objective documentary evidence:

(1)  The Applicant knew an investigation was taking place regarding the 1^st Incident. A meeting took place on 28 February 2020 which the Applicant attended.

(2)  The Applicant filed an incident report in respect of the 1^st Incident.

(3)  The Applicant attended the 3 March 2020 Meeting, for performance appraisal, and was informed about her performance and the Incidents.

(4)  The Applicant challenged or appealed the performance appraisal, including her performance in respect of the Incidents.

(5)  The Applicant gave a written response to the 3 March 2020 supervision record, which specifically dealt with the Incidents.

(6)  The Applicant gave a written response on her annual performance appraisal report which referred to the Incidents.

(7)  The Applicant confirms she was informed at the 3 March 2020 Meeting that Mr Sin informed her she was subject to disciplinary action. But she denies knowing what incidents for which she was being investigated – despite writing a formal response to Mr Sin’s supervision record regarding the 3 March 2020 Meeting, where he specifically writes about the 1^st and 2^nd Incident.

(8)  In the 29 April Report, Mr Sin considered all of the above.

86.I make no comment on the merits of the disciplinary action taken, not least because – as the Applicant herself emphasises – that is not a matter which concerns the Court exercising its supervisory judicial review jurisdiction. But, on the numerous contemporaneous materials, it simply beggars belief that the Applicant was unaware of, or had no opportunity to address, those matters which ultimately led to the Written Warning.

87.Furthermore, the matter was further investigated by The Salvation Army’s Social Services Department, which conducted an extensive investigation in relation to the Applicant’s annual performance appraisal report and the Incidents, before the Written Warning was issued.

88.The Applicant was provided with multiple opportunities to address the Incidents (whether orally, at the 28 February 2020 interview or the 3 March 2020 Meeting, or in writing). It cannot be said that the procedure adopted by The Salvation Army was unfair.

89.Additionally, irrespective of whether the Applicant was or was not provided with an opportunity to refute the allegations which led to the Written Warning, she had an opportunity on appeal to make representations to refute the Incidents and/or to clarify any allegations or incorrect statements in the Written Warning. One of the very purposes of the appeal mechanism was to cater to a complaint that the original disciplinary decision was taken improperly, and to safeguard against the improper use of disciplinary actions. It cannot be said that the Applicant was treated unfairly. In fact, the procedures put in place provided more than adequate protection to the Applicant, ensuring disciplinary proceedings were not misused and that the result could be challenged where cause could be shown.

90.In light of the above, the Applicant has failed to demonstrate that the disciplinary investigation or appeal process arguably involved any procedural unfairness.

91.The application for leave is unmeritorious.

G.  Promptness, Academic/Moot & Failure to Exhaust Alternative Remedies

92.For the sake of completeness, I also deal with The Salvation Army’s complaints that the Applicant had not filed her application for leave to apply for judicial review promptly, that a review would be academic or moot, and that the Applicant failed to exhaust alternative remedies.

93.The Salvation Army complains that there is delay in the commencement of proceedings, and that the Applicant waited until the 11^th hour (the last possible day) to file her judicial review.

94.The Applicant, in reply, explained the reason for the timing of filing was because she was acting in person and not legal represented. Therefore, she needed time to learn and understand the procedure for commencing the present application and to prepare the relevant documents.

95.In light of the explanations, and given the application was made within the three month period, lack of promptness would not of itself have been fatal to the present application. Furthermore, no particular hardship, prejudice or detriment has been suffered by The Salvation Army arising from the timing.

96.Contrary to the view expressed in the evidence filed on behalf of The Salvation Army, the fact that the Applicant is no longer employed by The Salvation Army probably does not render the dispute as academic. But, the present application might be regarded as moot in the sense that there is no public element which would provide useful guidance for future cases – though this is really the same point as arises on the question of amenability to review.

97.Lastly, The Salvation Army contends that the Applicant had not exhausted all available and effective alternative remedies, because the Applicant could have submitted a further complaint to the ICHC regarding the Appeal decision. But, I am of the view that the Applicant had exhausted all available and effective remedies as The Salvation Army could disregard any decision from the ICHC. Hence, the present application was not inappropriate or premature on that basis.

98.I have, however, also already touched on the point that the Applicant has pursued various alternative remedies in the Labour Tribunal, the District Court, and in EOC proceedings. The availability of those alternative remedies only tends to emphasise the private (as opposed to public) nature of the matters giving rise to the complaint, and the pursuit of those available alternative remedies would likely itself point strongly against the necessity or aptness of an application for leave to apply for judicial review.

H.  Conclusion

99.The intended challenge is to a private law decision or decisions taken within the context of employment, with no sufficient public law connection to make it or them amenable to judicial review. In any event, the Applicant has failed to identify any reasonably arguable grounds of review with any reasonable prospect of success.

100.In those circumstances, the application for leave to apply for judicial review is dismissed.

101.My preliminary view is that costs should follow the event. However, I shall deal with the question of costs – including any claim to summary assessment – on paper submissions. The Salvation Army shall have until 3 January 2024 to file its submissions, and the Applicant shall have until 17 January 2024 to file her submissions. Unless I otherwise order, there will be no further submissions, and I shall simply proceed to deal with the matter of costs on the papers.

K.B. Chau & Co., for the applicant

Kennedys, for the putative respondent