Lam Lung Sing v. Yang's Taxi Co Ltd

HCLA000007/1984

IN THE HIGH COURT OF  JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Date of Hearing: 2nd May, 1984.

Date of Delivery of Judgment: 2nd May, 1984.

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JUDGMENT

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1. This is an application for leave to appeal against a decision of the Presiding Officer of the Labour Tribunal in relation to a hearing which began on 13th January 1984. At that hearing, the applicant, Mr. Lam, made several claims against his former employer, Yang's Taxi Company Limited including a claim for $770 being wages in lieu of notice under the terms of his contract of employment. The defendant employer counterclaimed a similar sum under the same provision of the contract of employment. In other words, each party contended that the other had brought the contract to an end without notice.

2. The applicant was employed as a taxi driver and had been so employed for 29 months. Throughout that time, he worked the day shift. The contract of employment set out the hours of the day shift and also of the night shift.  It did not say whether the applicant was to be employed on one or the other or both and the applicant is right to say to me that it does not make provision for any roster. On 24th October 1983, Mr. Lam 's employer, Madam Yang told the applicant that he was to be transferred to night shift.   Mr. Lam, the applicant, did not agree and he took that request to be unreasonable end as such to amount to wrongful dismissal and a repudiation of his contract or employment which he, according to his evidence, promptly accepted. In the statement which he had submitted to the Labour Tribunal as part of his case, he had said that at the time of his being employed, it was agreed orally between himself and his employer that he would only work the day shift and, if that were right and if what had been said to him by his employer amounted to a direction rather than a request, there might have been substance in his contention that he was wrongfully dismissed at that stage. Now, the Presiding Officer found on the evidence he had before him which included not only the statements submitted by the parties but also evidence given on oath or affirmation and subjected to cross-examination that what was said on 24th October 1983 amounted no more than a request to change from day to night shift, and, moreover, that within the day Mr. Lam having indicated his reluctance to change, the employer as was found by the Presiding Officer withdrew the request and told Mr. Lam that he could remain on day shift working.

3. Now, appeal lies from a decision of the Labour Tribunal only on the point of law or in relation to the jurisdiction of the Tribunal to hear the matter before it and in order to have my leave to appeal against that decision, Mr. Lam would have to show that that finding of fact was wholly unsupported by the evidence.  I have been troubled because in his written decision, the Presiding Officer has made no reference to the fact that, according to Mr. Lam, at the time when he was engaged he was told he would only be required to work the day shift. But it seems to me that whether the Presiding Officer wrongly ignored that piece of evidence which was never cross-examined to or contradicted or whether had took it into account and accepted it, it would not have affected his ultimate finding of fact that what was said by the employer did not amount to a dismissal or direction that Mr. Lam should change from day to night shift but merely amounted to a request that he should do so. It is not for me to substitute my view of the evidence for that taken by the Presiding Officer and I regret that I can find no ground or basis in law which could be argued on appeal against the decision of the tribunal in this case. I ought to say for completeness salve that in this case the applicant, Mr. Lam, had applied for Legal Aid and his application was refused, I know not on what ground. And though the court would have been assisted by hearing counsel I do not mention it for that reason but only to remark that as a result of the application, under the rules a stay of 42 days was automatically placed upon the proceedings and at the beginning of this hearing with Mr. Lam's consent I ordered that the stay be lifted so that his application might continue today.

Representation:

Applicant - in person.