Or Loy Yau and Others v. Lau Hing Wan t/a Yat Shing Construction Co

HCLA000059/1983

LABOUR TRIBUNAL APPEAL NO.59 OF 1983

(Claim Nos. 1563, 1565, 1568, 1738-1743 of 1983)

BETWEEN

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Coram: Hon. Clough, J.

Date of Hearing: 27 March 1984

Date of Delivery of Judgment: 12 April 1984

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JUDGMENT

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1. On the 27th March 1984 I dismissed the appellant's appeal against the decision of the Presiding Officer Mr. Kenneth Mok in this matter on the 7th July 1983 awarding the Respondents varying sums amounting in all to a collective total of $27,133 under four heads of claim, namely wages in lieu of notice, arrears of wages, holiday pay and annual leave pay. These are my reserved reasons for my decision.

2. On the 31st October 1983 an application for review by the Appellant was refused. The Appellant having obtained leave to appeal I do not find it necessary to dwell on the review proceedings.

3. The proceedings in the Labour Tribunal were the result of a disputed between the Respondents and the Appellant regarding the Chinese Lunar New Year holiday in 1983. At all material times the Appellant was a sub-contractor carrying out slope works on a construction site. His principal contractor was threatening him with penalties for failure to maintain the stipulated time-table for the work and on the 5th February 1983 he gave his employees, of whom there were about 22, notice that the Chinese New Year holidays were to extend from the 11th February 1983 (the 29th day of the last lunar month) to the 15th February 1983 (the 3rd day of the New Year inclusive). The relevant notice stated that work was to resume on the 4th day of the New Year and that anyone not observing the notice without approval for leave from the person in charge of the company was to be liable to be disciplined.

4. As so often happens, there was a divergence of evidence regarding the exact dates upon which the Respondents had gone on leave and returned to work. Suffice it to say that the Respondents had left work before the beginning of the Lunar New Year holiday and had returned to work after the expiration of that holiday. The sequel was that the Appellant refused to allow them to work on the site and they were dismissed. The Defendants complained to the Labour Department and ultimately these proceedings were instituted in the Labour Tribunal by the Respondents under the heads of claim mentioned above. The Appellant counterclaimed against the Respondents for 26 days wages in lieu of notice on the basis that they had left their employment without his authority and in breach of their terms of service but this claim was dismissed by the Presiding Officer after he had concluded that the Respondents had been wrongfully dismissed and had established their claims against the Appellant.

5. At the hearing the Tribunal had before it a joint statement of all the Respondents which they adopted as their evidence in chief. The Defendant had made a statement on the 11th May 1983 and he adopted it when he gave evidence in chief at the hearing. He also relied on the evidence of his foreman Mr. Lam Muk-sha and his brother-in-law Mr. Ho Kwok-leung both of whom had made statements on the 30th May 1983 and the 29th June 1983 respectively which they formally adopted as their evidence in chief at the hearing.

6. It is clear from the record that the real issue concerned the character of the dismissal of the Respondents and the liability or otherwise of the Appellant to pay the Respondents' holiday pay in respect of the Chinese Lunar New Year holiday in 1983. Having concluded after hearing all the evidence from both sides that the Respondents had been wrongfully dismissed by the Appellant the Presiding Officer expressed the substance of his reasons for his decision in the following succinct terms:-

7. Under s.32 (1) of the Labour Tribunal Ordinance (Cap.25) a dissatisfied party may, with the leave of the court, appeal to the High Court on the grounds that the award is erroneous in point of law or outside the jurisdiction of the tribunal. The effect of s.35(2) of the Ordinance is that on an appeal under s.32 the High Court may draw any inference of fact but may not reverse or vary any determination made by the tribunal on questions of fact. However I apprehend that it is always a question of law whether there was any evidence to support the Presiding Officer's findings of fact and whether the inferences which he has drawn are possible inferences from the facts as found: c.f. Hemns v. Wheeler [1948] 2 K.B. 61 (C.A.)

8. On the 12th January 1984 I granted the Appellant leave to appeal on the following grounds. The first ground was that the determination by the Presiding Officer was against the weight of the evidence. To substantiate this ground the Appellant relied upon documents exhibited to his original statement showing that on the 4th February 1983 he had been informed by the principal contractor that unless the work was completed by the 7th March 1983 a penalty at the rate of $500 per day would be imposed for delay and any uncompleted work would be cancelled and transferred to another sub-contractor on the basis that the Appellant would be liable to pay the difference in costs for the same.

9. The Appellant further relied on a notice issued by him on the 5th February 1983 to all his employees, which had been signed by all the Respondents, drawing attention to the warning which the principal contractor had given the Appellant regarding completion of the work by the 7th March 1983 and declaring that the Chinese Lunar New Year holiday would commence from the 29th day of the twelve lunar month to the 3rd day of the Lunar New Year (i.e. 11th February to 15th February 1983). Reliance was also placed on the evidence of the Appellant that he had been obliged to pay workers' extra wages for overtime by reason of the claimants not returning to work and he further relied upon the cancellation of the work by the principal contractor due to his inability to complete the work in time, as evidenced by a letter from the principal contractor to the Appellant dated the 18th February 1983 which was before the Presiding Officer at the hearing.

10. The second and third grounds were added at the time leave to appeal was granted. The second ground was that the Presiding Officer erred in finding that all the six Respondents had reported back to the Appellant for duty on the sixth day of the first moon and were dismissed by the Appellant. To substantiate this ground the Appellant relied on the evidence of the second, fourth, fifth, and sixth Respondents under cross-examination at the hearing to the effect that they had reported for work on the 11th day of the first moon. Further reliance was placed on the Respondents' evidence in their original statement that they had reported to the Labour Department on or after the 12th day of the Chinese New Year. This evidence, it was contended, was inconsistent with the allegation of wrongful dismissal on the 6th day of the first moon of the Chinese New Year and tended to establish that the alleged wrongful dismissal could not have occurred on that date as alleged by the Respondents as the basis of their claims.

11. The third ground of appeal was that the Presiding Officer took erroneous matters into consideration which were not supported by evidence, namely -

12. As to the first ground of appeal, I accept that the matters relied on thereunder, which were all in evidence before the Presiding Officer, were all matters tending to make it less likely that the Appellant would have given permission to the Respondents to go on leave before the stipulated date for the beginning of the Chinese New Year holiday or to return after the expiration of the stipulated date. However, in my judgment, the fact that the Presiding Officer did not in terms refer in his judgment to these matters does not imply that he necessarily ignored them I emphasise that they are not matters which are in themselves so compelling as to lead to the conclusion that the Presiding Officer must have come to a decision against the weight of the evidence as a whole which came under his consideration at the hearing. Indeed it was apparent from the relevant pay sheet relating to the second half of February 1983, which was exhibited to the Appellant's evidence, that one of his employees other than the Respondents was given leave with the permission of the Appellant's foreman.

13. All the factors relied upon under the first ground of appeal tended to indicate that it would not have been in the interest of the Appellant to grant extended New Year leave to his employees but the crucial question was whether he had in fact given permission for the Respondents to exceed the three day period stipulated in the notice given by him to his employees on the 5th February 1983. In my judgment the Presiding Officer indicated that he had clearly grasped this vital issue when he identified it in the passage cited from his judgment above and I am not satisfied that he misdirected himself in any way when he abstained from mentioning in his judgment the matters referred to in the first ground of appeal and from treating them as decisive.

14. As regards the second ground of appeal, I accept that the judgment of the Presiding Officer is susceptible to criticism in respect of his firm conclusion that the Respondents returned to work on the 6th day of the first moon whereas the evidence under cross-examination of the 2nd, 4th, 5th and 6th Respondents was to the effect that they had reported for duty on the 11th day of the first moon. This evidence was clearly inconsistent with the assertion in their original statement, which was treated as evidence in chief at the hearing, to the effect that they had returned to work on the 6th day of the first moon.

15. However, I am by no means satisfied that this inconsistency coupled with the evidence of the Respondents in their original statement that they reported to the Labour Department on or after the 12th day of the first moon justifies the conclusion that the Presiding Officer misdirected himself in concluding that, on the balance of probabilities, permission was given by the Appellant to the Respondents to go early and return late from their Chinese New Year leave.

16. It often happens that honest witnesses are confused about dates. Moreover the evidence of the Appellant and his own witnesses was not consistent regarding the dates upon which the Respondents returned to work. Thus the Appellant alleged in his original statement that all the Respondents other than the 4th Respondent returned to work on the 11th day of the first moon (the 23rd February 1983) whereas the 4th Respondent, returned four days later. However the Appellant's foreman Mr. Lam Muk Sha asserted in his original statement made on the 13th May 1983 that the 1st Respondent had called him on the telephone about going to work, on the 5th day of the Lunar Year and had been told by Mr. Lam that Mr. Lam would be on leave on the 6th day for medical reasons. Mr. Lam further asserted in the same statement that on the evening of the 6th day of the first moon the 1st Respondent had telephoned Mr. Lam and told him that the 3rd Respondent and the 1st Respondent had been to the Appellant's site and changed into their working suits but the Appellant did not want them. This evidence was manifestly inconsistent with that of the Appellant and consistent with the evidence under cross-examination of the 1st Respondent when he said he had gone back to duty on the 6th day of the first month and also consistent with the evidence of the 3rd Respondent under cross-examination when he stated that he had returned to Hong Kong on the 5th day of the first month.

17. The Appellant's case regarding the date upon which the Respondents returned to work was not strengthened by the evidence of his brother-in-law Mr. Ho Kwok-Leung. He asserted in his original statement made on the 29th June 1983 that the claimants returned to work on about the 11th day of the first moon but when, under cross-examination, the 1st Respondent put it to him that he was lying and then put it to him that the 1st Respondent had reported at the site on the 6th day of the first moon Mr. Ho replied that he did not remember. He again claimed to have lost his recollection when a similar question was put to him by the 3rd Respondent.

18. Having considered the evidence carefully in relation to the date upon which the Respondents returned to work after the Chinese New Year holiday in 1983 I consider that the Presiding Officer has laid himself open to justifiable criticism for deciding firmly that the Respondents returned to work on the 6th day of the first moon but I do not consider that on the evidence before him it is to be inferred that he should have accepted the evidence of the Appellant as to the date of return. There was no documentary evidence whatsoever to tip the balance of probability on this issue which, in my judgment, was clearly subsidiary to the central question as to whether or not the Appellant had given permission to the Respondents to go early and return late from their Chinese New Year holiday.

19. The Tribunal's reaction to the witnesses called on behalf of the Appellant to support his case was, in my judgment, fully justified and, notwithstanding the careful argument advanced on behalf of Mr. Ho for the Appellant, I was not persuaded that the Presiding Officer had committed any error of sufficient materiality to justify allowing the appeal. Subject to the observations below regarding the third ground of appeal I consider that he handled a difficult case sensibly.

20. As to the third ground of appeal I accepted the criticisms contained therein regarding the conclusions of the Presiding Officer concerning matters specified therein but the views expressed by him were clearly all formed after he had made his decision on the 7th July 1983. Put another way, they were not in his mind at the time he made the decision which is the subject of this appeal and they only occurred to him at a later stage. Accordingly I do not consider that the third ground of appeal is sustainable.

21. Those are my reasons for dismissing this appeal. I conclude by emphasising that, tempting though it may be to any tribunal, the written reasons for its decision which is subject to appeal should not include comments regarding the motives of the Appellant in seeking to appeaal or his alleged lack of bon fides.

Representation:

Mr. B.K. Ho instructed by M/s Fairbairn & Kwok for the Applicant/Defendant.

Respondents/Claimants: 1st to 6th Respondents - in person.