Bartley Mcglynn v. Kumagai Gumi (Hong Kong) Ltd

HCA005586/1996

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Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 24th September 1996

Date of Handing Down of Judgment: 26th September 1996

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JUDGMENT

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1. By his Summary Judgment Application the Plaintiff claimed against Defendant for some $125,000 alleged to be owing to him by his former employer. The Summary Judgment Application was unsuccessful and Registrar Betts gave unconditional leave to defend is therefore brought to this Court.

2. The claim of the Plaintiff consists of three parts:-

3. The Plaintiff was recruited from Great Britain and by the contract of employment dated 16th January 1995 ("Contract") the Plaintiff was engaged as a Safety Manager for a two year period from 16th January 1995 at the monthly salary of $50,000 with monthly housing allowance of $10,000.

4. On or about the 24th of March 1995, the Plaintiff sought the permission of Mr. Philip Chan his direct superior in the Defendant company to go to United Kingdom urgently for family matter being the heart attack of the father-in-law. Permission was granted to Plaintiff. There is however a factual dispute on what were said at that conversation and subsequently and the terms of the leave granted. The Defendant's case is that only 7 days leave of absence was granted whereas the Plaintiff contended that general leave of absence was given.

5. It is however not in dispute that the Plaintiff left his work in Hong Kong and departed from Hong Kong on the 24th March 1995 and it is clear from the evidence that he left for the United Kingdom because of the heart attack of the father-in-law. What then happened in Britain was again the subject of dispute but it would seem that the Plaintiff was having marital problems with his wife who around that time or shortly afterwards left him and that the Plaintiff was having some depression problem, the nature of which was in dispute, but very likely contributed to by the marital problem.

6. The Plaintiff did not return to work in Hong Kong but instead contended that by reason of his ill health of depression, he had validly resigned on 30th April 1995 and that therefore he was entitled to various benefits under the Contract. The Defendant disputes each and every item of the alleged entitlements.

7. So far as the first part of the claim is concerned, it is not in dispute that the Plaintiff did not work in Hong Kong during the month of April 1995. The limited leave of absence, whatever the duration, was only given for 7 days according to the Defendant in respect of the father-in-law's illness and certainly not for the Plaintiff's own medical reasons. I do not see how the Plaintiff, not having worked during April 1995, could possibly succeed on this Order 14 application that he should be paid for April 1995. Mr. Lewington in his forceful arguments contended that indefinite compassionate leave was given and such leave was given on paid leave basis. This contention was hotly disputed by the Defendant. Firstly, the compassionate leave was said to be given for only 7 days limited to the father-in-law's imminent death due to the heart attack. Secondly, the Defendant says that there was no agreement that any compassionate leave was on a paid leave basis and certainly no agreement that any compassionate leave beyond the initial 7 days was on paid leave basis. Factually, there is a dispute as to what was the leave granted, for how long and on what basis, namely whether on paid or unpaid basis. On this summary judgment application, I have no doubt that unconditional leave to defend ought to be given in relation to the first part of the claim in respect of the period in April 1995 during which the Plaintiff had done no work and yet was seeking to say he was entitled to full payment.

8. The second part of the claim is based on clause 12 of the Contract which says that "leave with full pay shall be granted to the employee on the termination of the employment at the rate of one month in any full year or part of year of service." When the Plaintiff left Hong Kong to return to England he had done only some 2 months of service having started on 16th January 1995. The argument of Mr. Lewington that nevertheless the Plaintiff was entitled to one month extra pay is based on the contention that irrespective of whether the Plaintiff was in breach of contract or whether he had validly resigned pursuant to Clause 9 of the Contract, the Plaintiff was still entitled to that one month leave pay and extra month's housing allowance. The argument is that even if the Plaintiff was dismissed or liable to be dismissed, the right under Clause 12 on its plain wording survives such dismissal or breach of Contract by the Plaintiff. I cannot agree with this contention because such contention flies in the face of the general purport of such a Clause which was to regulate the relationship in a normal lawful termination of employment contract. More importantly, I disagree because Clause 10 of the Contract made it clear that upon dismissal of the Plaintiff all benefits under the Contract are lost. Furthermore it seems to me that Mr. Lewington might have also ignored the impact of Clause 9 on Clause 12. It is possible, and I say no more than possible, that Clause 9 is a very special situation allowing an employee to prematurely terminate the employment and that in such a situation Clause 12 has no application. Whatever is the true position, I am quite clear in my mind that the Plaintiff has not made out a case for summary judgment under Clause 12.

9. To avoid and justify non-dismissal, the Plaintiff relied on the resignation and the medical document. Much had been made of the medical certificate from Dr. de Silva dated 28th April 1995. As the matter is now going to trial, I do not wish to say too much about this but it is clear to me that having regard to the overall material placed before me and specially the admitted evidence by the Plaintiff that around the same time that the Plaintiff was supposed to be so ill as to "be compelled to relinquish his employment" he was discussing employment possibilities with headhunter and potential employer in the United Kingdom. These actions seem to me to be hardly compatible with a case of a man so ill that he could not work at all. The picture I have from the evidence is that there was a man who was sufficiently not concerned with his so-called illness as to be interested in actively finding new employment (see paragraph 16 of Defence and Counterclaim as admitted in paragraph 15 of the Plaintiff's Affidavit of 10th September 1996). It seems to me that it is very likely that the Plaintiff's so-called resignation was due to his desire not to return to Hong Kong rather than due to his medical inability to work. In this respect I have not overlooked the explanation given by the Plaintiff on paragraph 16 of the Defence and Counterclaim or the second report by Dr. de Silva but I have nevertheless come to the view that there is more than a reasonable prospect of success of a valid defence to this Clause 9 resignation. I am of the view that the circumstances of the case clearly call for this dispute to go to trial. But in case it may be necessary I should also add that on the material before me I am also satisfied that the Defendant has more than a credible case of a good claim against the Plaintiff for one month pay in lieu of notice under Clause 11(b) of the Contract and for dismissal under Clause 10.

10. Finally on the matter of the return passage, Mr. Lewington informed the Court that the appeal in relation to this part was not pursued and I will therefore say no more except to point out that prima facie entitlement to Clause 9 return passage only comes into play if the employee was in Hong Kong.

11. In the circumstances, the Registrar was quite correct when he gave unconditional leave to defend and this appeal of the Plaintiff must be dismissed with costs.

Representation:

Mr. Robert Lewington of Messrs Masons for the Plaintiff

Mr. Raymond Tsui instructed by Messrs S.T. Poon & Co. for the Defendant