Doctor Wong Koon v. The Chinese University of Hong Kong

HCA005307/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Penlington, J. in Court

Dates of  hearing: 2, 3, 4 & 5 November 1987

Date of delivery of judgment: 6 November 1987

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JUDGMENT

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1. The Plaintiff was first employed by the Defendant University in 1971 as a Physician in its internal Health Service and by 1981 he was on the maximum salary for the post of $18,430 p.m. He then applied for a teaching post in the University's newly opened Faculty of medicine as a lecturer in Community Medicine. He was interviewed by a Board comprising Professor S.P. Donnan, Head of that Department and Drs. Lee and Chan. Afterwards he saw Professor Donnan who said he wanted him to join his Department as a lecturer but lie would be expected to carry out and publish the results of research and also to go overseas and secure a post-graduate qualification, such as Member of the Royal College of General Practitioners. The appointment would be on probation for 3 years.

2. A formal offer of appointment dated the 13th of November 1981 was duly sent to and was accepted by the Plaintiff on the 18th. It was signed by the Assistant Secretary, Mr. Andrew Chan, on behalf of the Secretary acting in accordance with directions from the Vice Chancellor. The letter states that the appointment "will supersede your present appointment with effect from 1st January 1982. However your service will be deemed unbroken with regard to entitlements to long leave and superannuation benefits."    The appointment would be subject to a 3 year probationary period and to the University's Ordinance and Statutes and to the Standard Terms of Service, copies of which were attached.

3. With the letter of appointment, there was also another letter from Mr. Andrew Chan clarifying certain points. These were that -

4. It was the Plaintiff's evidence that before accepting this offer he had been told by Professor Donnan that he must resign his present post. He refused to do so because he vas anxious about job security and did not wish to give up his accrued benefits. He discussed this aspect with Dr. Robert Dan, Head of the Health Service, and with the then Secretary, Dr. F.C. Chen. Dr. Chen told him that he himself was on probation as Secretary from his substantive post as Senior Lecturer in Physics and could revert back to that if his appointment as Secretary lapsed. He had not had to resign and he did not see why the Plaintiff could not get the same terms. He would speak to Andrew Chan about the matter. The Plaintiff said that when he got the letter of appointment and Mr. Andrew Chan's letter a week later he assumed that such arrangements had been made and he accepted the offer on that basis. He said Mr. Andrew Chan brought the letter to him at the Health Service Office. He discussed the terms with him and in particular what the word "supersede" meant. He was told he could not hold 2 Posts but he could always go back to his present job if not substantiated in the new post. He accepted the offer on that basis anti took up his new post in February 1982.

5. There was some conflict in the evidence of the Plaintiff and Professor Donnan as to events after that but it was not in dispute was that a course was arranged for the Plaintiff beginning in August 1982 at the Glasgow University Medical School and that he was to sit the MRCGP examination in October. Fare were to be paid from a grant and he was given the necessary leave. However a fortnight before he was clue to leave he saw Professor Donnan and as a result he cancelled the course. He has never since then attended any such course and has not sat the examination. The Plaintiff said this was because he felt he should do the course in 1983, leading to the examination in October of that year. This was as a result of discussion with a colleague who had sat the examination which was not easy as he knew himself, having failed it on a previous occasion. Professor Donnan's version was that while he agreed to cancellation, albeit after considerable effort on his part to organise it, he thought that as the Plaintiff was clearly unwilling for the reasons he then gave, which were not those he gave in evidence, there was no point in his going, given that attitude. Professor Donnan was, however, then in doubt as to the Plaintiff's future with his department.

6. Accordingly Professor Donnan wrote to the Plaintiff on the 6th August 1982 stating that he expected him to sit for, if not to pass, the examination in May 1983 but it was up to the Plaintiff himself to make arrangements for a suitable course of study. That was followed by a memo of 28th October 1982 setting gown a date, 15th November, for concrete proposals being received for such a course. Both memos state that the Plaintiff's resignation would be expected if the requirements were not satisfied. These dead-lines were not met and Professor Donnan then wrote to the Dean of the Faculty, Dr. Gerald Choa recommending that the Plaintiff's appointment be terminated and that was done by a letter of 30th March from the Secretary. It quoted Clause 6(c) of the Terms of Service and gave the Plaintiff 4 months notice. He was not offered his old post back, which had been filled, and he has not applied For any vacancy which has since occurred.

7. On the 20th April 1983 the Plaintiff wrote to the Vice Chancellor complaining of the way he had been treated and in particular that his probation had not been the subject of Review as required by the Terms of Service and he had not been invited to submit a statement as required under those Terms. He denied that he had not done anything required by Professor Donnan. The Plaintiff also said that at the time he was appointed it was made clear to him that if he failed to be substantiated in the new post he could revert to his old one with the Health Service.

8. It is the case for the Plaintiff that the oral assurance given to him by Dr. F.C. Chen before accepting the appointment formed a collateral warranty which is enforceable as a separate contract. That warranty does not contradict a term of the written contract and entitled the Plaintiff to be re-appointed to his old position. He also claims that, as a probationer, the proper procedure for review in accordance with the Terms of Service has not been followed and finally that his treatment has been such as to cause a breach of natural justice.

9. It is the Defendant's case that no warranty was ever given to the Plaintiff by Dr. F.C. Chen or Mr. Andrew Chan. Even if it was they had no authority to give it, a fact which the Plaintiff must have realised, that the Terms of Service clearly enable the council of the University to terminate the Plaintiff's appointment on four months notice and there can be no question here of a breach of natural justice. The Defendant has simply exercised its contractual rights. This is not a case of dismissal under Statute 24 of the University's Statutes which is applicable when it wishes for some reason to remove an employee without the requisite period of notice.

The Warranty

10. I was most impressed with the evidence given by all 3 witnesses called for the Defendant, Professor Donnan, Mr. Andrew Chan and Dr. F. C. Chen. They clearly wished to be perfectly fair to a former colleague and when, due to lapse of time, they could not remember any point, they said so. Furthermore this evidence was fully supported by the relevant documents and correspondence. While I have no doubt that the Plaintiff was concerned about job security in 1981, and that is not disputed by the Defendant's witnesses, I do not accept his evidence Char the assurances relied on by the Plaintiff were given to him by either Dr. F. C. Chen or Mr. Andrew Chan. It is not in dispute that Dr. F.C. Chen was not on probation in his post as Secretary but in fact it was a substantive appointment with the additional provision, however, that his old post was left vacant and he was given 3 years no-pay leave from it. This was so he could return to it if he so wished at the end of that period. I have no doubt that was what the Plaintiff was told. He may well also have been told that some arrangement might be reached which would give him job security but it depended on the form of contract he was offered, and Dr. F.C. Chen would discuss the matter with Mr. Andrew Chan. I have no doubt however that no further assurance or warranty was offered by Dr. F. C. Chen When the letter of appointment and Mr. Andrew Chan's accompanying letter were received by the Plaintiff without any reference whatever to his returning to his old post, which he knew was to be filled by a new appointee, he must have realised that no such assurance was being, offered. The letter of appointment makes it clear that the Plaintiff's service would be unbroken only as regards leave and superannuation. It is true he could also stay in his flat in the meanwhile and his salary remained as it was, above the lecturers scale but these were concessions made by the University only because flats were available and it was policy that an existing employee should not go down in salary when going to a new appointment within the University. I do not consider that these terms were such as to cause the Plaintiff to believe that he was being offered the additional benefit of being able to go back to his old job, for which there may well not be a vacancy, if he failed in the new post. While it was an alleged assurance given to him by Dr. F.C. Chen which is pleaded by the Plaintiff as the foundation for his claim of a collateral warranty, in evidence he also referred to a similar assurance given to him by Mr. Andrew Chan. I am satisfied on the evidence that no such assurance was ever given.

11. That being so I need not go into the law relating to collateral warranties. However in deference to Counsel who have ably lit my way on that tortuous path I may say that even if I accepted the Plaintiff's version of what was said by Dr. F.C. Chen, as relied on in para. 6 of his amended statement of claim, it did not amount to such a warranty as would form a separate enforceable contract. It was not so intended and was at best advice given by Mr F.C. Chen which he would discuss with Mr. Andrew Chan and which the Plaintiff should also consider. Even adopting the most favourable dicta for the Plaintiff, that of Denning M. R. in J. Evans Ltd. v. Andren Merzario Ltd. ⁽¹⁾, the conversation with Dr. F.C. Chen was not "a promise or assurance given to another, intending he should act on it by entering, into a contract". It was at best an indication that some arrangement enabling the Plaintiff to return to his old post might be possible. That would be discussed within the University's administration. It was no more than that.

Terms of Employment

12. I am also satisfied that Statute 24 of the University Statutes does not apply here. That Statute governs cases where the University seeks to dismiss for cause, not under the contract of employment which requires, in the case of the Plaintiff, simply 4 months notice. Clause 6 of that Statute says "subject to the terms of his appointment, no person shall be dismissed otherwise than in accordance with the terms of the Statute." The Terms of Service which are referred to in the Plaintiff's letter of appointment clearly provide for termination on four months notice without reason.

Review of Probation

13. I am further satisfied that the provisions for review of a probationer also do not apply. These provisions (appendix B of the Terms of Service) require that during the period of probation 6 monthly reports should be prepared by a superior officer and that not less than 8 months before the probationary period is due to expire an ad hoc review committee should prepare a recommendation for the Vice Chancellor's consideration. At that stage the probationer shall be invited to submit a statement as to why his appointment should be substantiated. The Plaintiff's service was terminated long before that stage had been reached, in accordance with Section 6(c) of the Terms of Service which clearly gives the right to terminate probationary employment at any time on 4 months notice. I do not see anything in the other clauses of those Terms which in any way contradicts that power.

Natural Justice

14. Finally I am also satisfied that there is no question of a breach of natural justice. The Plaintiff must have realised for some time before termination that his post was in jeopardy and he had every possible opportunity to remedy that position or make representations to the Vice Chancellor, which he did after he was dismissed. The memoranda sent to him by Professor Donnan set out in the clearest terms what he was required to do and the consequences of non-compliance. I am satisfied that Professor Donnan had ample mounds to believe that the Plaintiff was simply unwilling, for whatever reason, to make real efforts to comply with those requirements, having cancelled at the last moment detailed arrangements which had been made for him to attend suitable courses. I see no ground for holding he was in any way denied natural justice.

15. The claim must be dismissed.

16. The Defendant is entitled to its costs.

(1)    [1976] 1 W.L.R. 1081

Representation:

Stephen Franklin (Alick Au & Massie) for Plaintiff

Anthony Neoh (Lo & Lo) for Defendant