Mindex Battery Works Ltd v. Cheng Pak-woon

Case No.DCMP 11/1975

Court

District Court

Date—

Judge—

Case Document

100%Judiciary

DCMP000011/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

APPELLATE JURISDICTION

LABOUR TRIBUNAL APPEAL NO. 11 OF 1975

(on appeal from Labour Tribunal Claim No. 1513 of 1975)

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Between:
	Mindex Battery Works Ltd.	Appellant
	and
	CHENG Pak-woon	Respondent

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Coram: Judge Jones in Court.

Date of Judgment: 16th March, 1976

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DECISION

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1. This is an appeal from a decision of the Presiding Officer of the Labour Tribunal made on the 17th October, 1975 when he awarded the respondent the sum of $1,580.90 in respect of wages in lieu of notice and severance pay, on the grounds that the appellant had impliedly terminated the respondent's contract of employment within the meaning of Section 31L of the Employment Ordinance Cap. 57.

2. The Presiding Officer confirmed his decision on the 3rd November, 1975 after hearing the appellant's application for a review. Section 31L of provides that -

"Where in accordance with any enactment or rule of law -

	(a)	Any act on the part of the employer; ......
	(b)	.......... operates so as to terminate a contract under which an employee is employed by him, that act or event shall for the purposes of this Part be treated as a termination of the contract by the employer, if apart from this subsection it would not constitute a termination of the contract by him.
	(2)	Where subsection (1) applies and the employee's contract is not renewed, and he is not re-engaged under a new contract, ........ he shall for the purposes of this Part be taken to be dismissed by reason of redundancy if the circumstances in which the contract was not renewed and he is not re-engaged ......... are wholly or mainly attributable to one or other of the facts specified in Section 31B(2)."

3. The relevant part of S.31B(2) is sub-paragraph (c) which provides that an employee shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that the requirements of that business for employees to carry out work of a particular kind in the place where the employee was so employed have ceased or diminished or are expected to cease or diminish.

4. In his application for appointment dated the 13th December, 1972 the respondent said that he was a maintenance repairer with ten years experience and was willing to perform machine repairing.

5. It is common ground that he worked in the plastic section on the 5th floor from the date that he commenced employment in December 1972 until the 18th August 1975 when he was transferred to the machine repair section that deals specifically with the repair of dolly machines.

6. The difference between the plastic section and the repair section is that the plastic section involves production and the machine repair section involves repairs.

7. Having worked for one morning in the machine repair section the respondent said that he was unable to repair a dolly machine and requested that he be returned to his original post. The appellant did not accept this request with the result that the respondent left his employment.

8. Mr. Tang for the appellant submitted that the respondent would not repair the dolly machines and that his refusal to do so was unreasonable. He thereby contends that the respondent left his employment of his own accord.

9. I agree with Mr. Tang that the crux of the issue is to determine exactly what the respondent was employed to do. Mr. CHIU Kin-hung who gave evidence on behalf of the appellant before the Labour Tribunal said that the respondent was employed as a foreman and repairer of the plastic section where the work included repairing machines of a minor nature.

10. If a job proved to be beyond his ability the machine repairing section, the section to which he was transferred, would assist him to carry out the repairs. He also assigned work to the plastic injection moulding machine operators. He mixed the materials and the colourants maintained plastic machines and looked after local made automatic plastic machines. He said the respondent was transferred because his past performance was far from satisfactory and that he expressed his willingness to perform the repairing and granulating work when he first joined the factory.

11. There is no dispute that following the respondent's transfer his post was not filled and his work has since been shared by the other workers. The post itself was taken over by the section head of the repair section.

12. The appellant's manager said that the factory had replaced semi-automatic machines with fully automatic ones so that the respondent had more time and less work. Accordingly he was transferred for better management.

13. Further evidence was adduced at the hearing of the appeal on behalf of the appellant from which it is apparent that the respondent earned the wages of a repairer.

14. It was contended that as the respondent was able to repair plastic machines working primarily as a repairer he should also be able to repair dolly machines but this was denied by the respondent. However the evidence only established that the respondent was qualified to do minor repairs whilst it is clear that he did not know how to repair dolly machines. In spite of this fact the respondent was assigned two apprentices who were to learn from him. The respondent was informed that if he found the work to be unsuitable the appellant would assist by solving any difficulties. It was not explained what the respondent was to teach the apprentices nor how his transfer would promote the efficiency of the company. From the evidence the very opposite would result.

15. There is no dispute that the respondent worked in the maintenance section on the 20th August, 1975 so that it is not correct to aver that he made no attempt to do the work. The respondent tried but found that he was unable to perform the work in respect of which the appellant concedes he had no experience.

16. The appellant's claim that the respondent only worked in the plastic section as a temporary measure when he worked there for almost three years is patently absurd. In effect the appellants have tried to justify their action for the transfer by saying that he originally applied for a post of repair. This reason is wholly unconvincing. It is abundantly clear that he was not a repairer, but was only qualified to do maintenance work. Accordingly I agree with the Presiding Officer's finding that the respondent was not a repairer.

17. In the circumstances the respondent did not leave his employment with the appellant of his own accord, but was made redundant when his post was taken away and he was removed to a section where he had no experience of the work. Such act operated to terminate the respondent's contract of employment as found by the Presiding Officer.

18. It follows that there is no merit in the ground of appeal based upon perjury.

19. The appeal will therefore be dismissed.

20. There will be 8% interest upon the award from the date of the Presiding Officer's determination the 17th October, 1975.

	(Sgd.) B.L. Jones
	District Judge

Representation:

Robert Tang instructed by D.W. Ling & Co. for Appellant.

Respondent in person.