Leung Yiu Chung and Others v. Gammon (Hong Kong) Ltd.
Read the full judgment text of HCLA 16/1983 on BabelCite. This HCLA judgment was delivered on 1 February 1984.
1. The appellants (employees) were convicted of gambling during lunch hour at their employer's premises. The gambling occurred on 11th September, 1982. They were convicted and fined on 13th Sept., 1982. They were dismissed on 6th and 8th November, 1982. The reasons given being the gambling. They brought proceedings for payment in lieu of notice, and redundancy payments. The employer attempted to justify the dismissals, on the ground they had been gambling at his premises.
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HCLA000016/1983 IN THE SUPREME COURT OF HONG KONG HIGH COURT LABOUR TRIBUNAL APPEAL 1983 NO. 16 ____________________
____________________ Coram: The Hon. Mr. Justice O'Connor in Court Date: 1 February 1984. _______________ J U D G M E N T _______________ 1. The appellants (employees) were convicted of gambling during lunch hour at their employer's premises. The gambling occurred on 11th September, 1982. They were convicted and fined on 13th Sept., 1982. They were dismissed on 6th and 8th November, 1982. The reasons given being the gambling. They brought proceedings for payment in lieu of notice, and redundancy payments. The employer attempted to justify the dismissals, on the ground they had been gambling at his premises. 2. The Tribunal found for the employees on the wages in lieu of notice, but found against them on the redundancy payments. The Tribunal found that the gambling was the actual reason for the dismissals, but found it was not a justifiable reason. Accordingly it found that redundancy was not the reason for dismissal. 3. In view of the reason for allowing the appeal, I need not recite the evidence in any detail. There were three claims covering seven claimants. The Summary of Facts in Claim 5/83 mentioned that the employer conceded that the employees posts had not been filled. It would appear likely that the posts of the employees in other claims had not been filled either. There may be explanations other than redundancy for their posts not being filled, but on the face of it the inference is that the posts were redundant. The defence witness did not advert to that fact in evidence. He was not cross-examined. The Presiding Officer did not ask why the posts had not been filled. The Labour Tribunal Ordinance provides by Section 20(3) that the Presiding Officer shall investigate any matter he may consider relevant. I consider that in certain circumstances, of which this is one, that imposes a duty on him to investigate. He was dealing with unrepresented lay parties. I consider he ought to have inquired into why the posts vacated been filled. 4. I set aside the dismissal of the redundancy claims and remit the matter to the Tribunal with a direction that it reopen the hearing and inquire into the matter of why the posts vacated by the employees were not filled, and any other relevant matter that arises as regards redundancy, and then make its findings on the redundancy claims. Of course in assessing the evidence on this matter it will be borne in mind that the employer will have had ample notice of the reason why the matter is reopened.
Representation: Miss ONG Choo-neo inst'd by H.M. So & Co. for appellants Miss Jane FONG inst'd by Munro & Co. for respondent |