Fan Man Yiu v. General Locks & Metalwares Factory Ltd

HCLA000018/1984

LABOUR TRIBUNAL APPEAL

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 30 October 1984

Date of delivery of judgment: 9 November 1984

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JUDGMENT

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1. This is an appeal against a decision of Mr. Paul Chiu a Presiding Officer of the Labour Tribunal made on the 24th May 1984 when he gave judgment for the appellant for part of the claim, but rejected the claims for one month's wages in lieu of notice, double pay and severance pay.

2. The appellant commenced employment with the respondent as a lathe operator and fitter on the 19th July 1978. He continued to be employed until September 1983 when he went to work in Bangkok Thailand for Diamond Measuring Tool Industrial Co. Ltd. (hereafter referred to as Diamond) as a machine adjustment technician. This employment arose as a result of an agreement dated the 11th March 1983 that the respondent entered into with Diamond to supply them with experienced technicians. It was agreed that the period of employment was for three months with a right of extension for up to another three months at a monthly wage of $6,000 exclusive of tax to be paid by Diamond. The appellant was required to install padlock making machines that Diamond had purchased from the respondent.

3. The appellant worked or Diamond from the 6th October 1983 until the 30th December 1983. During the appellant's absence from Hong Kong Mr. Yiu Kwei-tin worked in his place for the respondent and remained until the 19th April 1984.

4. On the 6th January 1984 the appellant returned to the respondent with the intention of resuming his work, but was informed that he would be treated as a new employee with different conditions of service. At first he returned to work on these conditions, but subsequently sought advice from the Labour Department after which he left.

5. The respondent's case is that the appellant resigned from his employment on the 23rd September 1983 when he went to work in Thailand and was re-employed on new terms on the 6th January 1984. In answer to a question asked by the Presiding Officer Mr. Ho Yin-hung the respondent's managing director said:-

"                 At first in March, 1983, it was intended that my company would send the Claimant to the Thailand Factory. However, because of certain disagreement with the customer in Thailand, Tai Shing Co. came in and acted as intermediary so that the Claimant was told that he could leave the company to serve in the Thailand Factory direct. This he agreed. So eventually he went off in October, 1983.''

However, the appellant had opportunity to admit or refute this allegation for it was never put to him when he gave evidence. Nevertheless the evidence is inconsistent with the first question put to the appellant by Mr. Ho in cross-examination when he asked him why he had taken so long on his return from Thailand to report back for duty. This evidence was also inconsistent with testimony of Mr. Yiu who agreed that he was only to be employed by the respondent for three months whilst the appellant was away.

6. In his judgment the Presiding Officer correctly summarised the issue in the following words:-

"The crux of the matter was whether there was a break of service of the Claimant's when he left for the Thai factory to work for 3 months in 1983.

The Claimant admitted in evidence that there was no mention of granting him no pay leave by the Defendant Company. Having regard to the various documents leading to the arrangement of his service with the Thai's Company and especially the various tax returns in the form of Exh. D5, it was very clear that the Claimant's employment with the Defendant Company came to an end on 23.9.83 when he was last paid up with his wages.

Indeed if he was seconded to the Thai Company by the Defendant Company, one would expect that he should continue to remain on the pay-roll of the Defendant Company and his emoluments and other incidental expenses like passages ete. should similarly be paid by the Defendant Company. His contention that it was a secondment was rejected.".

On an appeal from the Labour Tribunal the High Court may draw any inference of fact. Mr. Payne who appeared for the appellant cited Lees v. Arthur Greaves (Lees) Ltd. (1974) 2 All E.R. 393 where it was held:-

At page 397 Lord Denning said:-

"So the tribunal and the court should not find an agreement unless it is proved that he really did agree with full knowledge of the implications which it held for him.".

Upon the evidence it is clear that when the appellant went to work in Thailand it was for a period of three months, with a possible extension from one to three months as provided by the agreement. Having worked for the respondent for over five years I consider that it would be highly improbable that the appellant would have been prepared to terminate his employment and to surrender all his accrued rights for an increase in wages for such a short period. It is apparent that the Presiding Officer drew inferences of fact from the documents. In my view the inferences of primary fact that were drawn were incorrect. The agreement between the respondent and Diamond reveals no evidence of a break in service of the appellant's employment with the respondent. The subsequent intervention of Tai Shing Co. as agent for Diamond and Einstein Electrical Manufacturing Co. as guarantor is not relevant to the issue as to whether the appellant's employment was terminated.

7. From the documents the evidence adduced before the tribunal the proper and irresistible inference to be drawn in the absence of cogent evidence to the contrary is that the appellant did not terminate his employment with the respondent when he went to Thailand, but was seconded to work there. When the respondent changed the conditions of employment the appellant quite clearly was not aware of the full implications.  The circumstances leading to the appellant's departure amounted to constructive dismissal. Mr. Yiu was still employed to do the appellant's job with the result that the appellant became entitled to severance pay by virtue of redundancy. The appellant was also entitled to one month's wages in lieu of notice and balance of annual leave pay from the 24th September 1983 to the 6th January 1984. Although Mr. Chan on behalf of the respondent disputed the claim for double pay it is customary to make an award where it is clearly implied that such a payment, as in this case, would have been made at Chinese New Year. This claim also succeeds.

8. Accordingly the appeal is allowed, and the order of the Presiding Officer is set aside. Judgment will be entered for the appellant for the sums originally claimed by the appellant. Interest will be awarded on the judgment at 10% from the 6th January 1984. Costs to the appellant together with the usual Legal Aid taxation.

Representation:

Mr. Ian Payne (John Ku & Tam) assigned for Appellant.

Mr. S.M. Chan (P.H. Sin & Co.) for Respondent.