Avelina C. Dapit v. Leung Cheung Yuk Ying

Case No.HCLA 48/1996

Court

HCLA

Date—

Judge—

Case Document

100%Judiciary

HCLA000048/1996

Labour Tribunal Appeal No. 48 of 1996

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ON APPEAL FROM CLAIM NO. E2894/95

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BETWEEN
	AVELINA C. DAPIT	Appellant
	and
	LEUNG CHEUNG YUK YING	Respondent

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Coram: The Hon. Mr. Justice Waung in Court

Date of Hearing: 4th July 1996

Date of Delivery of Judgment: 12th July 1996

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JUDGMENT

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1. The Appellant is a domestic helper from the Philippines. She had been working for the Respondent for eight years since January 1987. Upon the expiry of her fourth 2 year contract of employment, her contract was not renewed. The Appellant therefore made a claim to the Labour Tribunal for the sum of $13,653.30 as long service payment under the Employment Ordinance. Her claim was dismissed by the Presiding Officer of the Labour Tribunal. There was a conflict of evidence before the Presiding Officer. The employer Respondent said that an offer of renewal of contract on slightly different terms was made by the Respondent to the Appellant but the Appellant rejected such offer. While the Appellant employee said that no such offer of renewal was made even though the Appellant wanted to continue working for the Respondent under a renewed contract. The Presiding Officer believed the Respondent and accepted her evidence and rejected the evidence of the Appellant.

2. The Appellant sought the leave of the High Court to appeal on a point of law and on the 3rd May 1996, Mr. Justice Yeung granted leave on the basis that the Presiding Officer's interpretation of section 3 IT of the Employment Ordinance ought to be investigated.

3. The Appeal came before me and as both parties were acting in person it fell upon me the task of:-

(a)	firstly identifying the point of law on which the Appellant could be said to be appealing; and
(b)	secondly deciding if there is any merit in that point of law.

The question for the Presiding Officer is whether the Appellant was dismissed. In deciding that question however the Presiding Officer must have regard to the statutory provision, namely section 3IT which reads:-

"(1)

For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if. but only if-

(a)	the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9:
(b)	where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract or
(c)	the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer's conduct

(2)

An employee shall not be taken for the purposes of this Part to be dismissed by his employer if-

(a)	his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and
(b)	the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract."

At the hearing, it was agreed and I hope I had demonstrated to the Appellant and to the Respondent that section 31T(1)(a) and (c) are of no relevance. Section 31T(1)(b) was identified as being the relevant provision and the question of law which I have to resolve is whether section 31T(1)(b) is applicable. To be able to come within section 31T(1)(b), the Appellant must show that she was:-

(1)	employed under a contract for a fixed term;
(2)	that fixed term had expired;
(3)	that fixed term was not renewed under the same contract.

It seems to me on the undisputed facts of this case that these requirements had been satisfied by the Appellant. What is important from the statutory scheme point of view is whether there was a renewal not whether it could have been renewed or whether any party offered to renew but the other party rejected such renewal offer either reasonably or not. If there was renewal then there was no dismissal but if there was no renewal then there was a dismissal under that section of the Ordinance, leading to the result that the employer then incurred a liability for long service payment. This view of section 3IT(1)(b) is in fact confirmed by section 31T(2)(a) and (b) which made it clear that to amount to non dismissal, there had to be not only actual renewal but such actual renewal must take effect immediately after the ending of the previous contract. To be exempted from the application of the statutory dismissal, the employer had to show an actual immediate renewal. This plainly did not happen.

4. In my judgment, the learned Presiding Officer fell into error in equating a rejection of the renewal offer by the Appellant as being no dismissal under the Ordinance. The Ordinance provides a special statutory scheme of what it considered to be dismissal under the Ordinance. The proper question which should have been asked by the Labour Tribunal is whether there was dismissal under section 31T of the Ordinance. Instead the Labour Tribunal posed the issue as being whether the Appellant was dismissed or whether the Appellant had elected not to renew her contract though offered by the Respondent (paragraph 5 on page 2 of Reason for Judgment). The second part of the question posed by the Presiding Officer in the Reason for Judgment is simply irrelevant. It seems to me that once the correct legal question is asked as to whether there was dismissal under section 3 IT of the Ordinance, the answer is clear and must be in favour of the Appellant. In the circumstances, I must allow the appeal of the Appellant and the Respondent must pay to the Appellant the long service payment of $13,653.30. The Appellant is given the costs of the appeal.

	William Waung
	Judge of the High Court

Representation:

The Appellant Aveiina C. Dapit in person

The Respondent Leung Cheung Yuk Ying in person