Baldoo Dharamdav Parbanath v. The Incorporated Management Committee of Aberdeen Technical School

HCLA 32/2023

[2024] HKCFI 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 32 OF 2023

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 1242 OF 2023)

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BETWEEN

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DECISION

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A.  INTRODUCTION

1.By an Application for Leave to Appeal on Point of Law dated 22^nd December 2023 (“the Claimant’s Form 14”)  pursuant to s.32 of the Labour Tribunal Ordinance (Cap. 25)  (“the LTO”), the Claimant applied for leave to appeal against the decision of Deputy Presiding Officer Cheng Yu Kit Bosco (“the Presiding Officer”)  of 21^st December 2023 (“the Review Decision”), in which the Presiding Officer reviewed and confirmed his judgment of 1^st December 2023 (“the Judgment”)  and dismissed the Claimant’s review application.  The Judgment in turn dismissed the Claimant’s claim against the Defendant for:

1.1  wages in lieu of notice,

1.2  arrears of wages,

1.3  special allowance,

1.4  retention allowance,

1.5  sick leave pay,

1.6  interest on late payment of wages, and

1.7  contract gratuity.

2.The Presiding Officer also ordered that the Claimant bear the Defendant’s costs in the amount of HK$15,561.

3.The Claimant’s application for leave to appeal was originally fixed to be heard on 7^th February 2024.  The Claimant indicated that it would be cost-prohibitive for him to travel to Hong Kong for the hearing, and applied for it to be conducted via video conferencing facilities.  I directed instead that the application could be dealt with on the papers, and the Claimant filed written submissions on 30th January 2024 (“1^st Submission”).  The Claimant sought leave to file supplemental written submissions, and this was done on 8^th February 2024 (“2^nd Submission”).

B.  FACTUAL BACKGROUND

4.Save as otherwise indicated, the following is not in dispute.

5.The Claimant’s normal place of residence is South Africa.  He was employed by the Defendant, an aided secondary school in Hong Kong, as a Native-speaking English Teacher (“NET”).

6.The Defendant’s principal was Mr Shum Ming Fai Sammy (“Principal Shum”).

7.Paragraph 17.3 of the Memorandum on the Terms and Conditions of Service for Appointment as Teacher under the Enhanced Native-Speaking English Teacher (NET)  Scheme in Secondary Schools (“the Memorandum”)  (which was attached to the Letter of Appointment issued to the Claimant dated 25^th July 2019 and accepted by the Claimant by a letter of acceptance dated 29^th July 2019 (“the Employment Contract”))  provided as follows:[1] 

“17.3 Summary dismissal is a serious disciplinary action which has to be justified on the basis of serious misconduct, gross negligence or having adverse impact on students or on their learning (for example, criminal offence, or failure to discharge their responsibility, including willful disobedience).”

B1.  The EDB Circular

8.On 27^th January 2020, the Education Bureau (“the EDB”)  issued a circular (“the EDB Circular”)  to supervisors / principals of all schools regarding extension of the Chinese New Year Holidays. 

9.Paragraph 3(iv)  of the EDB Circular stated that school staff should be back in Hong Kong not later than the end of their original Chinese New Year school holiday:

“… in view of the incubation period of virus, school staff and students should be back to Hong Kong not later than their original Chinese New Year school holiday and stay at home as far as possible” (“the Return Requirement”).

10.The original Chinese New Year school holiday for the Defendant had been scheduled to last until 2^nd February 2020.

11.On the same day when the EDB Circular was issued, the Claimant was informed by Principal Shum of the Return Requirement.  He was therefore aware that he was required to be back in Hong Kong on or before 2^nd February 2020 (“the 1^st Return Order”).

12.However, the Claimant stayed in South Africa.  He did not return to Hong Kong on or before 2^nd February 2020, and did not report to Principal Shum on 3^rd February 2020.

B2.  Lockdown of South Africa

13.Subsequently, on 23^rd March 2020 (more than one month after the Return Requirement was issued), the President of South Africa announced that South Africa would go into nationwide lockdown for 21 days, starting from 26^th March 2020.  The lockdown was later extended until it was uplifted on 1^st October 2020.

14.On 8^th May 2020, Principal Shum sent an email to the Claimant stating, inter alia:

“…To fulfill your duty, you should return to Hong Kong immediately once the departing flight to Hong Kong is available [“the 2^nd Return Order”]. If there is any update about the national lockdown, you should report to us immediately [“the Order to Update”]”.[2]

15.On 17^th September 2020, Principal Shum emailed the South African Consulate General to inquire about the latest status of the lockdown in South Africa and was told that the President of South Africa had on 16^th September 2020 announced that South Africa would be allowing travel into and out of the country for business, leisure and other travel with effect from 1^st October 2020.  Flights to Hong Kong from South Africa became available from 1^st October 2020.

16.Nevertheless, the Claimant did not return to Hong Kong and did not update Principal Shum of the resumption of flights.  In fact, he apologised in his letter dated 15^th October 2020 to the Incorporated Management Committee of the Defendant (“the IMC”)  for failing to inform them of the resumption of international flights in South Africa.

B3.  Termination of the Employment

17.On 1^st November 2020, Principal Shum informed the Claimant that at a special meeting held on 28^th October 2020, the IMC had resolved to summarily dismiss the Claimant effective from 1^st November 2020, pursuant to paragraph 17.3 of the Memorandum and the Employment Ordinance (Cap. 57)  (“EO”).

18.The IMC’s decision was not accepted by the Claimant.  He took the view that he had been wrongfully dismissed and therefore commenced the proceedings against the Defendant to recover the items set out in paragraph 1 above.

C.  THE JUDGMENT

19.The findings of the Presiding Officer may be summarised as follows.

C1.  Claim for wages in lieu of notice (Judgment paragraphs 60-75)

20.The 1^st Return Order, the 2^nd Return Order and the Order to Update (“the Orders”)  were all lawful and reasonable orders given by the Defendant.

21.The Claimant had failed to comply with the Orders.

22.The Claimant failed to establish that he had a reasonable excuse for not complying with the lawful and reasonable instructions of the Defendant:

22.1  he failed to establish that it was safer for him to stay in South Africa than to return to Hong Kong;

22.2  he did not obtain any medical certificate to prove his claim that, due to his hypertension and diabetes, he was medically unfit to travel back from South Africa to Hong Kong between 3^rd February 2020 and 1^st November 2020.  He only obtained a medical certificate on 24^th November 2020 and submitted the same to the Defendant after he had already been summarily dismissed by the Defendant; and

22.3  he did not offer any explanation as to why he did not comply with the Order to Update, the lawfulness and reasonableness of which he did not challenge.

23.The disobedience was wilful in the circumstances, which included:

23.1  Principal Shum’s repeated reminders that the Claimant had to comply with the Orders;

23.2  Principal Shum having made it clear to the Claimant that it was EDB’s guideline that all staff of schools in Hong Kong should return to Hong Kong no later than 2^nd February 2020 and report to work on 3^rd February 2020;

23.3  the Claimant’s repeated assurances to Principal Shum that he would return to Hong Kong once international flights from South Africa resumed;

23.4  the Claimant’s failure to update Principal Shum of the resumption of international flights despite the announcement of the South African Government on 16^th September 2020;

23.5  the Claimant’s choice not to return to Hong Kong despite the resumption of flights on 1^st October 2020;

23.6  the fact that despite the Claimant’s reliance on his age and physical conditions as being reasons that he had a high risk of infection with Covid-19, he chose not to obtain any medical certificate to verify his unfitness to travel before the Defendant terminated his employment on 1^st November 2020;

23.7  the Claimant’s stance (when travel from South Africa remained possible)  that he should not be compelled to return to Hong Kong, compared with his sudden enthusiasm (when travel was not possible due to the lockdown)  about returning to Hong Kong to perform his duties, and then his reverting (once Principal Shum had found out that the Claimant had failed to report that flights had resumed)  to claiming that due to health reasons, he should stay in South Africa; and

23.8  the Claimant’s failure to make any attempt to obtain medical evidence in support of his claim that he was unfit to travel. The Principal Officer disbelieved the Claimant’s evidence in this regard, saying that it defied common sense for the Claimant to allege that he did not know he needed to provide medical evidence to support his absence, bearing in mind that he was absent not just for a few days, but months, and given that Principal Shum had repeatedly required him to return to Hong Kong to perform his duties, and that the Claimant had experience of teaching as a NET in Hong Kong for over ten years.

24.In the circumstances, the Defendant’s defence that the Claimant had wilfully disobeyed lawful and reasonable orders was established.  There were good and sufficient reasons to justify the summary dismissal of the Claimant.  The claim for wages in lieu of notice was dismissed.

C2.  Claim for arrears of wages (Judgment paragraph 76)

25.The wages claimed by the Claimant were for September and October 2020.

26.The Defendant refused to pay the claimed wages because the Claimant was not in Hong Kong during the said period and did not attend the school campus despite Principal Shum’s requests for the Claimant to return to Hong Kong since the giving of the 1^st Return Order.  He was absent without leave.

27.In fact, the EDB agreed that the Defendant could consider his absence as no-pay leave.

28.Therefore, the Defendant was entitled to make deductions from the wages for the Claimant’s absence from work pursuant to section 32(2)(a)  of the EO.

C3.  Claim for Special Allowance (Judgment paragraphs 77-80)

29.Under paragraphs 8 and 11 of the Memorandum, a NET may be eligible for a monthly allowance of $20,989 over his appointment period.

30.However, according to the Education Bureau Circular Memorandum No. 122/2016 issued by the Permanent Secretary for Education on 15^th August 2016[3], the Special Allowance was “to assist NETs in meeting cost of living (mainly accommodation)  in Hong Kong on condition that their normal place of residence has been established as outside Hong Kong”. 

31.Since the Claimant was not living in Hong Kong during the claim period, he should not be granted any Special Allowance.

C4.  Claim for Retention Allowance (Judgment paragraphs 81-85)

32.Under paragraphs 6.4 and 6.5 of the Memorandum, NETs who have completed at least 2 years of continuous service under the NET Schemes may apply for a retention incentive each school year through their schools, and upon a successful application, the incentive will be paid.

33.However, the Claimant did not adduce any evidence showing that he had made an application for Retention Allowance or that such application was successful.

34.In any event, since the Defendant was entitled to summarily dismiss the Claimant, it was entitled to rely upon paragraph 6.9 of the Memorandum (which provided, inter alia, that if a NET’s service was terminated by the school on the grounds of unsatisfactory performance or conduct, he would not be granted any gratuity)  to refuse to pay any Retention Allowance to the Claimant.

C5.  Claim for Sick Leave Pay (Judgment paragraphs 86-87)

35.The Claimant did not submit any medical certificate for the period between 3^rd February 2020 and 31^st October 2020.

36.Whilst the Claimant submitted a medical certificate (which did not mention the duration of the recommended sick leave period and was not issued by a registered medical practitioner)  on 24^th November 2020, this was after he had already been summarily dismissed on 1^st November 2020.  By virtue of paragraph 17.4 of the Memorandum, upon dismissal, a NET forfeits all rights and benefits in respect of the contract. 

C6.  Claim for Interest (Judgment paragraph 88)

37.The claim for interest was dismissed since the claim for arrears of wages had been dismissed.

C7.  Claim for Contract Gratuity (Judgment paragraph 89)

38.Given the findings that the Defendant was entitled to summarily dismiss the Claimant, then it followed from paragraph 6.9 of the Memorandum that no Contract Gratuity would be granted to the Claimant.

D.  THE APPLICABLE LEGAL PRINCIPLES

39.Under s.32 LTO, a party may apply for leave to appeal against the Tribunal’s award, order or determination only on the grounds that it is erroneous in point of law, or outside the jurisdiction of the Tribunal. 

40.An applicant for leave has to show that the intended appeal is arguable: Chan Kwok Hung v Hotel Panorama Co Ltd, unreported, HCLA 30/2009, 19^th November 2009 (Chu J, as she then was)  at [13].

41.An appeal on a question of law lies only in limited circumstances.  A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors.  It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law.  See Kwong Mile Services Ltd v Commissioner of Inland Revenue (2004)  7 HKCFAR 275 (Bokhary PJ at [31] to [34]). 

42.A failure to discharge the Tribunal’s statutory duty to investigate can be a ground of appeal.  However, not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty.  The relevant matter forming the subject matter of the complaint must not only be relevant but be of such a nature that the lack of investigation will give rise to injustice, in that, a fair and proper determination of the claim cannot be attained.  All the circumstances of the case as well as all other findings must be given all due regard before such a complaint can be upheld.  See Chan Suk Bing Angie v Harbour Phoenix [1992] 2 HKC 459 at 462A to 463F (DHCJ Jerome Chan, as he then was).

E.  THE INTENDED GROUNDS OF APPEAL

43.The Claimant’s Form 14 identified the following intended grounds of appeal.

43.1  Summary dismissal was unwarranted and unfair, when the Claimant had elected not to hazard travelling back to Hong Kong as he feared for his health, safety and life, being a chronic sufferer of diabetes and hypertension (“Ground 1”). 

43.2  The Presiding Officer wrongly confirmed the allegation that the Claimant had wilfully disobeyed lawful and reasonable orders from the Defendant, drawing inferences from less material facts and disregarding more material facts (“Ground 2”).

43.3  The Presiding Officer upheld the Defendant’s harsh action of summary dismissal for without due regard for the Claimant’s new evidence and submissions at the review hearing (“Ground 3”).

43.4  The Presiding Officer made the absurd finding that a medical certificate from a registered medical practitioner in Hong Kong was not before him for his consideration (“Ground 4”).  

43.5  The Claimant was entitled to most of his claims not withstanding his summary dismissal (“Ground 5”).

43.6  The Claimant was prevented from conducting his case at trial and at the review hearing in a style and manner that suited him, as his cross-examination of the Defendant at trial, and his submissions at the review hearing, were constantly interrupted by the Presiding Officer (“Ground 6”).

43.7  The Presiding Officer entrenched indirect indiscrimination against the Claimant as a person with a disability, diabetes being recognised as a disability (“Ground 7”).

43.8  The Presiding Officer effectively gave effect to the Defendant’s counterclaim, when he had earlier ruled that it would not be considered as there was no formal application before him for that purpose (“Ground 8”).    

43.9  The Presiding Officer failed to investigate all material points at the review hearing (“Ground 9”).

44.Section 32(2)  LTO provides that an application for leave to appeal shall, inter alia, be in the prescribed form, which shall set out the grounds of appeal and the reasons in support of such grounds.

45.To the extent that the Claimant’s intended grounds of appeal as set out in his 1^st and 2^nd Submissions go beyond those stated in the Claimant’s Form 14, they do not fall to be considered.  I will nevertheless address some of them briefly in the course of dealing with the other grounds.  It is not, however, appropriate to delve into new grounds of appeal, such as that there was a unilateral variation of the Employment Contract “sprung” upon the Claimant “without warning” as alleged in the 1^st Submission.[4]  Nor is it appropriate to seek to engage in a paragraph-by-paragraph commentary of the Judgment and re-opening of arguments or raising of new arguments in relation thereto, as the Claimant has sought to do in the 2^nd Submission.

E1.  Ground 1

46.For summary dismissal under s.9 EO, the employer bears the burden of proving that summary dismissal is justified.  The standard of proof is the balance of probabilities, though in view of the seriousness of the consequences of summary dismissal, the evidence in support must be cogent: Chen Henry & Ors v William E Connor & Associates Limited, unreported, HCLA 51/2006, 14^th May 2007, at [17] DHCJ To.

47.However, where there is a prima facie lawful and reasonable order of the employer, the employee bears the burden of establishing a reasonable excuse in not obeying this order, including adducing satisfactory evidence: Fong Yee Dung v Swire Properties Management Limited, unreported, HCLA 96/1995, 14^th November 1995 at [24] (J Chan J).

48.The Presiding Officer was aware of these principles: see Judgment paragraphs 66 to 68; transcript of the hearing, 10^th October 2023 at 6U, 7F.

49.Whether or not the Claimant established a reasonable excuse is a matter of assessment of the facts.  The Claimant says that he “elected not to hazard travelling back to Hong Kong as [he] feared for his health, safety and life”, being a chronic sufferer of diabetes and hypertension.  The Presiding Officer rejected the Claimant’s claim of having a reasonable excuse as Covid was a global phenomenon so that staying in South Africa would not be any safer than returning to Hong Kong; the Claimant did not adduce evidence to show that the risk of getting infected in Hong Kong would be greater than in South Africa; the Claimant did not produce any medical certificate to prove that he was medically unfit to travel to Hong Kong prior to his dismissal; and the Claimant did not offer any explanation as to why he did not comply with the Update Order at all (and indeed acknowledged that he had failed to inform the Defendant of the resumption of international flights in South Africa).

50.It cannot be said that the Presiding Officer’s conclusion was perverse or irrational, or that there was no evidence to support it, or that it was made by reference to irrelevant factors or without regard to relevant factors.

51.This ground is not arguable.

52.In his 1^st and 2^nd Submissions (not the Form 14), the Claimant also submitted that:

52.1  the Defendant failed to give him a prior warning in advance of his dismissal.  However, there is no legal requirement to give such a warning: Qvist Henrik v Clatronic Far East Limited [2019] HKCFI 2464 at [132] to [133] (Mr Recorder Stewart Wong SC).  In any event, the Defendant had made it clear that the Claimant was required to return to Hong Kong;

52.2  the Orders were not orders, and were simply “instances of advice, suggestions and requests”.  However, the terms of the email of 8^th May 2020 make it quite clear that the Claimant was being ordered to return to Hong Kong immediately once flights were available, and that if there was any update about the national lockdown, he should report this immediately.

E2.  Ground 2

53.This complaint is set out in paragraph 9 c)  of the Form 14.  The complaint is that the Presiding Officer drew inferences from less material facts, and disregarding more material facts that would have countered his findings.  It is also said that certain crucial facts were disregarded.

54.In the Claimant’s submissions, he went through a number of matters which he said were ignored, such as that the Claimant’s priority was to stay safe, and to save his health and life from the dangers of Covid, that he was unable to return to Hong Kong because of South Africa’s lockdown, or that Principal Shum had given confusing messages (such as saying on 7^th April 2020 that he had no objection to the Claimant’s inability to attend a staff meeting on 8^th April 2020,[5] yet on 8^th May 2020 demanding that he return to Hong Kong once flights were available).

55.It is trite that a complaint that a tribunal placed more weight on certain facts and less weight on other facts does not disclose any error of law.

56.In any event, there is nothing in the Form 14 or the 1^st and 2^nd Submissions that shows that any matters were ignored.  It is simply the case that the Claimant would have preferred that the Presiding Officer reach a different conclusion on the material before him.

57.The intended ground is not arguable.

E3.  Ground 3

58.The Claimant complains that the Presiding Officer failed to give due regard to his new evidence or the points submitted on his review application.  He says that the Presiding Officer “rejected all the new evidence which were government press releases because he was of the view that he didn’t have to consider press releases”.[6]  The Claimant says that the press releases were put forward to show the gravity of conditions surrounding the pandemic, and that travel to Hong Kong would not have been sensible and wise.

59.It is simply not correct to say that the Presiding Officer took the view that he did not have to consider press releases.  He in fact considered them, and came to the view that the press releases did not assist the Claimant as they did not show that the EDB had no power, or wrongly exercised its power, to issue its guidelines of 27^th January 2020.  It followed that the Orders were lawful and reasonable.  See Review Decision paragraphs 6 to 9.

60.The intended ground is not arguable.

E4.  Ground 4

61.The Claimant complains that the Presiding Officer made the absurd finding that a medical certificate from a registered medical practitioner in Hong Kong was not before him for his consideration.  He says that he could not obtain a certificate as he was not in Hong Kong, that he was not asked for one, that no doctor issues certificates for chronic conditions until one suffers a bout of illness relating thereto, and that in any event, he produced a medical certificate from a Hong Kong clinic for the purposes of the review application before the Presiding Officer.

62.The issue of a medical certificate was relevant to two of the Claimant’s claims.

63.The first such claim was the Claimant’s claim for wages in lieu of notice.  This was dismissed, the Presiding Officer holding that (as noted above):

63.1  the Claimant had failed to establish a reasonable excuse for not complying with the lawful and reasonable instructions of the Defendant, one point being that the Claimant had failed to produce a medical certificate to prove his claim of being medically unfit to travel back to Hong Kong between 3^rd February 2020 and 1^st November 2020, and only sought to produce one after he had already been summarily dismissed; and

63.2  the Claimant had wilfully disobeyed lawful and reasonable orders, one point being that he never attempted to obtain medical evidence to substantiate his excuse for not returning to Hong Kong.  The Presiding Officer found that it defied common sense for the Claimant, who had been teaching in Hong Kong for over ten years, to allege that he did not know that he needed to provide medical proof to support an absence of months and in circumstances when he had been repeatedly required to return to Hong Kong.

64.In relation to this claim, the Presiding Officer did not say that a medical certificate from a Hong Kong registered practitioner was required.  The Presiding Officer’s point was that no medical certificate from any practitioner at all was produced prior to the Claimant being summarily dismissed.  See Judgment at paragraphs 67(2), 71.  Indeed, the Presiding Officer referred to the medical certificate that the Claimant produced on 24^th November 2020 (which was from a non-Hong Kong registered doctor), but pointed out that this was only submitted to the Defendant after the Claimant had already been summarily dismissed.

65.The second claim in which the issue of a medical certificate arose was the Claimant’s claim for sick leave pay.  This was dismissed, the Presiding Officer holding that (as noted above)  the certificate submitted on 24^th November 2020 was after the Claimant had already been summarily dismissed and forfeited his rights and benefits under his contract; and that in any event, it did not mention the duration of the recommended sick leave and was not issued by a registered medical practitioner.

66.Again, even if the medical certificate of 24^th November 2020 had been issued by a Hong Kong registered practitioner, this would not have assisted the Claimant, given that by that date, he had already been lawfully summarily dismissed, and his rights and benefits had been forfeited.

67.In the circumstances, the complaint that the Claimant was not in Hong Kong to obtain a certificate from a locally registered doctor simply does not arise, at least in relation to the claim for wages in lieu of notice.  It also would not have made any difference in relation to the claim for sick leave pay.  For this claim, I would further note that the Presiding Officer rightly noted that the medical certificate relied on for the Claimant’s claim for sick leave pay was not issued by a registered medical practitioner (that is, one registered under the provisions of the Medical Registration Ordinance, Cap.161), given that s.33(5)  EO provides that an employer is not liable to pay sickness allowance to an employee in respect of any sickness day, unless the day is specified in the appropriate medical certificate issued by a registered medical practitioner.

68.The complaint that the Presiding Officer failed to take into account the Claimant’s argument that he was not asked for a medical certificate is wrong.  On the contrary, the Presiding Officer took it into account, and disbelieved the Claimant’s claim that he was unaware that he needed to provide medical proof to support his absence (Judgment paragraph 71).

69.The complaint that no medical practitioner issues certificates relating to chronic conditions is contradicted by the very certificate produced by the Claimant dated 24^th November 2020, which purports to be such a certificate.

70.The production of a further medical certificate for the purposes of the review application before the Presiding Officer was neither here nor there.  It could not have changed the assessment of whether the Claimant had, at the material time, established a reasonable excuse for not complying with the Defendant’s lawful and reasonable instructions; whether the Claimant had, at the material time, wilfully disobeyed lawful and reasonable orders; or whether the Claimant had forfeited his rights and benefits upon summary dismissal.

71.The intended ground is not arguable.

E5.  Ground 5

72.The Claimant says that he is entitled to “most” of his claims notwithstanding his summary dismissal.

73.However:

73.1  the claim for wages in lieu of notice was dismissed as the Defendant was entitled to summarily dismiss the Claimant;

73.2  by reason of the summary dismissal, the Defendant was entitled to rely on paragraphs 6.9 and 17.4 of the Memorandum to refuse to pay any Retention Allowance, Sick Leave Pay, and Contract Gratuity to the Claimant;

73.3  as for the claim for arrears of wages, this was dismissed as the Claimant was absent from work without leave.  Consequently, the claim for interest was also dismissed;

73.4  as for the claim for Special Allowance, the Claimant was not entitled to this as he was not living in Hong Kong during the claim period.

74.There is therefore no basis for arguing for entitlement to any of the Claimant’s claims despite the summary dismissal.

75.The intended ground is not arguable.

E6.  Ground 6

76.The Claimant complains that he was prevented from conducting his case at trial and at the review hearing in a style and a manner that suited him.  He says that the Presiding Officer, rather than the Defendant, did much of the cross-examining of the Claimant; and that the Presiding Officer interrupted the Claimant’s cross-examination of the Defendant.

77.In his written submissions,[7] the Claimant elaborates on this by saying that the Presiding Officer prevented him from probing the Defendant’s allegation that the Claimant was dishonest, and that the Presiding Officer decided for the Defendant that it should limit its allegation to one of wilful disobedience justifying summary dismissal.  The Claimant goes on to say that the Defendant confirmed that it would limit its allegation to one of wilful disobedience, but that this was only after he indicated that he wanted to cross-examine on the allegation of dishonesty.

78.I have reviewed the relevant part of the transcript.  The more pertinent part reads as follows.

Q.  Defendant, on 15 September ’23, you suggested in court that I was dishonest.  The presiding officer gave me an opportunity…

COURT:  He made it clear that he is not relying on this any more.

CLAIMANT:  Yes, I do acknowledge that, that we had cleared that up yesterday, your Honour.

COURT:  Yes.

CLAIMANT:  But I want to dwell on this because he has written it in D-…

COURT:  If he confirm…

CLAIMANT:  … -three-eight…

COURT:  … With me that he will not rely on this allegation, then I will not consider the relevant part in his statement, the corresponding part in his statement.

CLAIMANT:  Okay. It’s just that the defendant maintains that I have been neglectful, wilfully disobedient.

COURT:  Well, of course, then you can continue with those questions.

CLAIMANT:  So the -- he was developing the idea of wilful disobedience and neglectfulness by bringing in the element of dishonesty, …

COURT:  That’s not – no, I …

CLAIMANT:  … so …

COURT:  That’s not what I understand.  Or are you inviting me to look at it that way?

CLAIMANT:  No. That is …

COURT:  It has never been my understanding.

79.There was then further discussion between the Claimant and the Court, in which the Court explained that the Defendant’s case was that the Claimant had wilfully disobeyed a lawful and reasonable order, and the Claimant said that on that basis, it was fine for him not to pursue the line of argument about dishonesty.

80.In other words, when the Claimant sought to cross-examine Principal Shum about the Defendant’s allegation of dishonesty, the Presiding Officer stopped him because the Defendant had already abandoned the allegation.  The Presiding Officer further made it clear that he would not be considering that part of the Defendant’s statement.  There was therefore no need to, or point in, cross-examining on an abandoned allegation.

81.In the circumstances, there can be no valid criticism that the Presiding Officer prevented the Claimant from probing the Defendant’s allegation of the Claimant’s dishonesty.

82.Further, it must be borne in mind that it is the Presiding Officer’s duty to investigate and also to ensure that questions are put fairly and appropriately to witnesses.  The putting of questions to a witness, or interruption of a party’s cross-examination, for such a purpose would not in itself generally be objectionable; whether it is so will depend on the facts of the case.

83.In this regard, I refer to Ortiz Ginalyn Kilapkikap v Bo Li, unreported, HCLA 101/2004, 23^rd September 2005 at [8] to [9], where Lam J (as he then was)  noted the presiding officer’s statutory duty under s.20(3)  LTO to investigate any matter which he may consider relevant to a claim, whether or not it has been raised by a party, and that the presiding officer may need to take witnesses through their evidence as they are not legally represented.  Lam J observed:

“Unfortunately, it is very tempting for a losing party to refer to the performance of such tasks on showing that the presiding officer trying his case had been acting unfairly towards him. But it is simply impossible for a presiding officer to distance himself from the conduct of the case when he is required to investigate. Be that as it may, a presiding officer has to maintain his impartiality. Whether he has cross the line in any particular case is a matter that has to be judged on the facts and background of each case.”

84.In the present case, the Claimant has not identified any other particular matter to make good Ground 6.  The complaint that, for example, it was the Presiding Officer rather than the Defendant who “did most of the responding” to the Claimant’s submissions[8] at the review hearing does not mean that the Claimant must have been prevented from presenting his case properly.

85.The intended ground is not arguable.

E7.  Ground 7

86.The Claimant complains that the Presiding Officer entrenched indirect indiscrimination against him as a person with a disability (diabetes).  From the written submissions, it appears that the Claimant seeks to say that he was the victim of discrimination as:

86.1  he was expected to return to Hong Kong “under life-threatening conditions” and summarily dismissed when he was unable to so return”;[9] and

86.2  he was excluded from teaching online from 2^nd September 2020 when other teachers were doing so;[10]

86.3  he was denied the payment of a Special Allowance whereas other NETs were paid a Special Allowance even if they were away from Hong Kong, for example during Christmas and other holidays.[11]

87.Regarding the first point, as observed by the Presiding Officer in Judgment paragraph 63(3), any school staff subject to the Return Requirement could have adduced medical evidence to prove that he or she could not comply with it.  However, the Claimant did not do so.

88.Regarding the second point, as recounted by the Presiding Officer in Judgment paragraphs 23 to 27, Principal Shum had explained to the Claimant that the EDB had indicated that all teachers were to be on standby in Hong Kong, ready to perform their duties on 1^st September 2020, no matter whether this would by way of classroom teaching or online teaching; and all teachers of the Defendant had indeed returned to school to work and would perform their duties at school on 1^st September 2020. See Judgment paragraphs 23 to 27.  In the circumstances, the Claimant was not being treated differently.

89.Regarding the third point, there is clearly a difference between NETs being temporarily away from Hong Kong during a specified holiday and the case of the Claimant being away from Hong Kong from 3^rd February 2020 until the time of his summary dismissal on 1^st November 2020.

90.The intended ground is not arguable.

E8.  Ground 8

91.The Claimant complains that the Presiding Officer effectively gave effect to the Defendant’s counterclaim despite earlier ruling that it would not be considered as there was no formal application before him for that purpose.

92.The Presiding Officer was duty bound to consider and rule on the Claimant’s claims, and he dismissed them.  Whether or not such a dismissal would have overlapped with relief sought in any counterclaim is not relevant.  Even if there had been any overlap, this would not have affected the merits of the Claimant’s claims.

93.The intended ground is not arguable.

E9.  Ground 9

94.The Claimant complains that not all material points raised in his review application were probed or investigated properly before judgment was delivered soon afterwards.

95.It is trite that not every single point raised by a litigant needs to be dealt with by the tribunal.  Asserting that a point is material does not make it so.

96.I note that it was said in the 2^nd Submission, for example, that the Presiding Officer failed to carry out due diligence as he would have found out that for over three weeks in September 2020, students were not at school but instead were taught online.  However, this was not material. As I have noted above, Principal Shum had explained to the Claimant that the EDB had indicated that all teachers were to be on standby in Hong Kong, ready to perform their duties on 1^st September 2020, no matter whether this was to be by way of classroom teaching or online teaching. See Judgment paragraphs 23 to 27.

97.The Claimant’s Form 14 did not identify which specific material points were said not have been properly investigated.

98.At page 16, paragraph 29 of the 2^nd Submission, the Claimant says that at paragraph 44 of the Judgment, the Presiding Officer failed to notice a vital point, namely that Claimant had not applied to utilise 168 days’ accumulated sick leave to set off his absence for the period between 3^rd February 2020 and 31^st October 2020.  The Claimant says that he had wanted to claim sick leave from the period after his termination, and on the basis that the termination was not to be by way of summary dismissal. He referred to his letter dated 15^th October 2020 to the IMC where, he says, he had proposed to be allowed to take 168 days’ sick leave, being his accumulated sick leave days, and that this application had been made prior to his being dismissed.  However, it is not the case that the Presiding Officer had misunderstood the Claimant’s claim.

98.1  The fact that the Claimant’s application related to a proposal that he be allowed to take sick leave from 1^st November 2020 (in other words, to continue to be paid for a further 168 days after termination)  does not affect the correctness of what the Presiding Officer said.  On the Claimant’s own case, the 168 days were “accumulated” days and must have therefore accumulated from past events rather than relating to future events.

98.2  More importantly, the Presiding Officer was making the point that when the Claimant applied to “utilise” his accumulated sick leave, he failed to submit any medical certificate to support the application.  By the time that the Claimant submitted a medical certificate on 24^th November 2020 (which in any event was not from a registered medical practitioner and did not identify the recommended sick leave period), the Claimant had already been summarily dismissed and his rights and benefits forfeited.

99.In the 2^nd Submission, the Claimant identified various other material or important matters which he says that the Presiding Officer had not considered.  I have reviewed these matters, but none of them would have changed the outcome of the Claimant’s claims.  The various matters are all essentially an attempt to reargue the case, or to re-weigh or re-interpret pieces of evidence which the Claimant considers are favourable to him.  For example:

99.1  the “fact” that Principal Shum had in effect conceded that there was no compulsion for the Claimant to return by 3^rd February 2020 by agreeing not to roster the Claimant until 17^th February 2020.[12]  Leaving aside whether what Principal Shum said should be construed as a concession, this could not have been material, since the Claimant’s absence from Hong Kong continued beyond 17^th February 2020;

99.2  the fact that it was the Claimant who proposed on 1^st September 2020 to teach via zoom and not the other way round; that (it is alleged)  the Principal was being evasive and dismissive rather than providing information and notifications to the Claimant; that he was told, without advance notice, of the substitution.[13]  In fact the Claimant was given advance notice, as I have mentioned above.  More importantly, none of these points would have been material to the outcome;

99.3  the fact that the EDB took more than three months to reply to Principal Shum’s email.[14]

100.Insofar as the Claimant alleges that it was for the Presiding Officer to “exhaust all possible avenues to investigate [the Claimant’s case] fully”,[15] I would note that although there is a statutory duty to investigate, it is the litigants who bear the primary responsibility in the preparation and procurement of evidence in support of their case: Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong)  Ltd, unreported, HCLA 34/2004, 4^th June 2004, at [15] (Lam J, as he then was).

101.The intended ground is not arguable.

F.  DISPOSITION

102.I dismiss the Applicant’s application for leave to appeal, and make no order as to costs.

The Claimant (Appellant)  acting in person