Keung Man Lan and Others v. Oceanic Universal Garment Manufacturers Co. Limited

HCLA000043/1986

Labour Tribunal Appeal

No. 43 of 1986

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Headnote

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Employment Ordinance Cap. 57. The true reason or motive behind an otherwise lawful dismissal has relevance only in relation to whether or not the presumption under Sec. 31Q (presumption of dismissal by reason of redundancy has been rebutted but before that arises a claimant must show that his dismissal was not in accordance with Section 9 (wilfully disobeying a lawful or reasonable order or habitual neglect of duties).

Workers continued to be late for work despite notices to desist. Dismissal under Section 9 lawful - presumption in Section 31Q does not arises.

An employer is entitled to put an end to continuing and on going breaches by dismissal and is not precluded from doing so by earlier forebearances.

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 43/86

(CLAIM NO. 796/86)

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BETWEEN

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Coram:  Deputy Judge Evans in Court

Date of hearing: 26th September 1986

Date of delivery of judgment:  26th September 1986

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JUDGMENT

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1. This is an appeal against a determination of a Presiding Officer that the appellant is liable to pay the five respondents salary in lieu of notice and severence payments under the Employment Ordinance, Cap. 57 arising out of its summary dismissal of them on the 30th January 1986 (as to the 1st, 4th and 5th respondents) and the 5th February 1986 (as to the 2nd and 3rd respondents).

2. Before the presumption in section 31Q of the Employment Ordinance, Cap. 57 that a dismissal by reason of redundancy arises, there is a burden upon a claimant to establish that he has been dismissed, (To Kin Wah v. Shui Hing Co.⁽¹⁾. )

3. An employee is to be taken to be dismissed by his employer if the employment contract is terminated other than under section 9 of the Ordinance, and under section 9 an employer may terminate, inter alia, if the employee wilfully disobeys a lawful or reasonable order or is habitually neglectful in his duties.

4. The issue which first arises therefore is whether or not an existing contract of employment which has been terminated without notice or payment in lieu has been lawfully terminated under section 9, and in the resolution of that question the issue is whether or not, as a matter of law, the employer is entitled to repudiate and dismiss the claimant and his true intention or motive in exercising his right is not relevant.

5. In that regard, in this case, I reluctantly conclude that the learned Presiding Officer has fallen into error in that he took into account evidence adduced at trial that the intention of the appellant in dismissing the respondents was to evade liability to them for redundancy payments on the issue of whether or not the dismissal of them summarily was lawful or not. The true reason or motive behind an otherwise lawful dismissal has relevance only in relation to whether or not the presumption under section 31Q has been rebutted, but before that issue arises, a claimant must show that his dismissal was not in accordance with section 9.

6. The learned Presiding Officer found that there had been a considerable degree of laxity over the years by the appellant in relation to times of arrival at work by employees. On the 21st January 1986 a notice was posted in the appellant's factory to the effect that the employees had to start work at 9 promptly, and that the gate to the factory would be closed at that time, and that those who were late 'shall bear their own responsibility'. That notice was also served on the respondents by letters to them dated the 22nd January again confirming that the workers were required to attend work promptly.

7. The absence of action by the appellant in relation to past late attendances did not, in law, amount to a waiver by the claimants (Rideout Principles of Labour Law 4th Edition 169). Whether that be right or wrong however the earlier forbearances are not strictly material to rights in respect of breaches after the notice of the 21st January 1986. The issue then is whether the appellant was entitled to dismiss summarily for those subsequent breaches under section 9 of the Ordinance.

8. The evidence is that the respondents had continued to be late despite the notices to desist. It is argued that this was not a wilful act on their part, but it is difficult to see how what they were doing was otherwise than wilfully disobeying a lawful and reasonable order and it serves to no avail that the notice did not expressly say that they would be dismissed for failure to comply with it. The notices are sufficiently clear to convey that one disobeys at one's own peril.

9. The history of lateness and the appellant's earlier tolerance of it no doubt lulled the respondents into what was a false sense of security in relation to consequences for failure to comply with the posted notice but, once the evidence relating to the appellant's true intention in terminating the employment is disregarded, the evidence on the question of the lawfulness of that summary dismissal establishes the legal right in the appellant, which he exercised, to dismiss the respondents under section 9. It follows therefore that the respondents could not show that they were employees who had been dismissed otherwise than under section 9, and so the presumption in section 31Q does not arise.

10. At first brush it appears harsh that dismissal can result from acts which were previously tolerated or even waived, but it must be that an employer be entitled to put an end to continuous and on going breaches and not be precluded from doing so by earlier forbearances otherwise an intolerable situation may well arise as a consequence of showing that tolerance and forbearance in the first place.

11. Given then that contracts were entered into, given that hours of work were prescribed and given that an employer ought to be able to set hours of employment for workers pursuant to the contract between them and require attendance during those hours, it is difficult to conceive what else he can do but post notices and expressly require compliance, and that the appellant did in this case.

12. I am reluctantly obliged to conclude that the dismissal under section 9 was lawful and as no question of redundancy arises, the appeal must, therefore, be allowed. Judgment is set aside and entered for the appellant. The appellant is entitled to its costs.

(1) Tribunal Appeal No. 10 of 1985

Representation:

Mr Erik Shum inst'd by M/S Livasiri & Co. for appellant/applicant

Miss Cissy K.S. Lam inst'd by Chung Chan & Evans assigned by D.L.A. for 1st, 2nd and 4th respondents

3rd and 5th respondents in person