Leung Yun v. The Incorporated Owners of Sun on Building

HCLA000059/1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Deputy Judge Saied in Court

Date of Hearing: 16 March 1989

Date of Judgment: 16 March 1989

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J U D G M E N T

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1. The appellant, aged 58, had worked as cleaner for the tenants' association of the Sun On Building, Queen's Road West, for some 20 years, and her last salary was $2,040.00 per month, inclusive of the tools and detergents. She was responsible for sweeping and washing floors of the 14 storeys.

2. The background to this litigation was summarised by the Presiding Officer as follows :

"Before the building was incorporated on 15.8.88 (vide Exhibit D3, the certificate of incorporation) a new committee was elected on 1.7.88. It was decided by the Committee that the claimant would have to clean the 4 lifts in the building and the lifts' corridors everyday. In the past it was not specified how often the claimant had to clean the lifts and the lifts' corridors and the frequency of such work was left entirely to the discretion of the claimant. On 9.8.88 the claimant was advised of the requirement that she was to clean the lifts and the lifts' corridor everyday and that her pay would be increased from $2,040.00 per month to $2,500.00 per month. The proposal was rejected out of hand by the claimant who insisted she would only do the same amount of work as she had done in the past. When the claimant was approached a second time on 15.8.88 she still held her ground and consequently she was dismissed the next day, 16.8.88."

3. The appellant's claim, which was in the nature of unfair dismissal, was for : (a) $1,020.00 for balance of wages in lieu of notice; (b) $544.00 for statutory holiday pay; (c) $320.00 for annual leave pay; (d) $14,450.00 for long service pay and (e) $32.90 for half a day's arrears of wages.

4. Her claims under items (b), (c) and (e) were upheld, the other two dismissed, by the Tribunal.

5. The main ground of the appeal is that the order of the new committee was unlawful and unreasonable, which the appellant was entitled to disobey. This was argued under two limbs.

6. First, it was submitted by Mr. Chik (for the appellant) that the respondent had asked the appellant to do something which under her contract of employment she was not obliged to do. In support, Mr Chik cited the following cases: (1) Price v. Mouat (1862) 11 C.B.N.S. 508, where the question that was left to the jury was, whether that which he (the plaintiff) was required by the defendant to do was a thing which he could properly be required to do under the contract; (2) Turner v. Mason, (1845) 14 M. & W. 112 where a domestic servant who had asked for leave of absence for the night to go to see her sick mother, which was refused by the employer, but she absented herself nevertheless and was dismissed. Alderson, B. said in the course of his judgment, dismissing the action in assumpsit for wrongful dismissal: "It is the safest way, therefore, to adhere to the legal obligations arising out of the contract between the parties"; (3) Kaukul v. Anglo-Soviet Shipping Co. Ltd., (1931) 41 L1.L.R. 90 where the plaintiff alleged that he was dismissed for refusing to go to Russia to satisfy a non-commercial purpose, i.e. outside his contract of employment. One of the directions of Hawke, J. in his summing-up to the jury was: "If an employer demanded something which an employed person was not bound to do by his contract the employed person was entitled to refuse to do it"; (4) Union of Construction, Allied Trade And Technicians v. Brain (1981) I. C. R. 542 where an employee was dismissed for his refusal to sign an undertaking settling a libel action to which he was a defendant, Lawton L.J. said at p. 543 "In these circumstances, it seems to me that the employers should have appreciated, and they would have done so had they had sound legal advice, that what they were asking the employee to do was something which they had no right to ask him to do", and at p.553, Oliver, L.J. said" They had, in my judgment, no business to do anything of the sort and the subesquent demand on the employee to execute an undertaking, however reasonable that may have been in the abstract for a settlement properly authorized and negotiated, was a demand which they had absolutely no right or title, either in law or in reason, to make, whether as the employee's employers or as the paymasters of the employee's solicitors on record. Summarily to dismiss the employee for his failure to comply , for whatever reason, with a demand which ought never to have been made, was, in my judgment, plainly unfair and unreasonable."

7. With these principles, Mr. Chiu (for the respondent) does not disagree.

8. Mr. Chik said that the Presiding Officer had misdirected himself when he found:

"I held that the order given to the claimant that claimant was to clean the lifts and the lifts' corridors each day was a lawful and reasonable order and her refusal to carry out the order warranted her summary dismissal. I further held it was a justifiable summary dismissal."

9. The misdirection complained of is that the Presiding Officer failed to direct himself on two questions: (1) what was the appellant's duty under the contract? and (2) was the order given by the employer within the appellant's scope of duty?

10. Mr. Chiu submitted that these considerations were clearly in the mind of the Presiding Officer as is apparent from the manner in which he made those findings.

11. In the case of Union of Construction, Allied Trade and Technicians v. Brain (supra) Donaldson, L.J. touched upon the nature of the reasons of the industrial tribunal which, in our context of the Labour Tribunal Ordinance (Cap.25), I find of great value. At p. 551 he said,

"Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. This was a reserved decision, but in practice they are more usually given off the cuff, and by that I do not mean to say without thought but I do mean extempore, to parties present in court ..... But their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon such analysis. This, to my mind, is to misuse the purpose for which reasons are given."

12. I think that Mr. Chiu is right and, upon going through his reasons for decision, it is plain that the Presiding Officer had in mind clearly what the issues in this claim were and he dealt with them on the basis of the evidence before him, including the various statements which the respective witnesses had adopted in evidence.

13. I do not think that Mr. Chik could reasonably say that the order was anything but lawful. Since the new committee was elected and the building incorporated, the owners were under statutory duty to comply with their obligations set out in s. 18 (1) (a) of Cap.344. However, it does not follow that an employee who refuses to obey a lawful order may automatically be dismissed, any more than it can be said that an employee cannot be dismissed if he refuses to obey an order which is outside his contractual obligations, for the strict legal rights are only relevant in considering the lawfulness of the dismissal, but not its fairness.

14. The appellant was a cleaner and had been so for about 20 years. The order that was given concerned cleaning jobs and it could not be said by any stretch of imagination that she was being asked to do something other than what she had always done, or that it was outside the scope of her duty. Here it was said that the order necessitated more labour and greater physical exertion on the part of the appellant, so she was justified in refusing to comply. This new order, including the increase in salary, was because of the change in the circumstances brought about by the incorporation which involved, as I see it, reorganisation of the duties of the employees. I do not think that the increase in the salary which was offered was in any way a pointer to the variation in the duties of the appellant, which as I have said, remained the same. In Oliver v. Sperry Vickers, (1975) I.R.L.R. 358, the applicant was dismissed for refusing to accept a change in his job title and job content following a reorganisation of the supervisory structure. He was then only one of 22 employees affected who refused. Although this involved minor additions in his duties, he would have received a higher rate of pay. The dismissal was held to be for some other substantial reason, and in the circumstances, fair, for he had no reasonable objection to the change.

15. In this case one other person, the rubbish contractor, was affected and he accepted the new system of work. For refusing to comply, the appellant advanced no reasonable objection to the change.

16. In all the circumstances, I find that the Presiding Officer came to a fair decision, which was the only one he could arrive at in view of the evidence which was put before him.

17. I see no merit in this appeal and it is dismissed with costs.

Representation:

Kenneth Chik instructed by Liu, Chan & Lam for the Applicant

Simon Chiu instructed by Simmons & Simmons for the Respondent