Lam Po Chu v. Nam Tai Management Services Ltd.

HCLA000019/1988

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO. 19 of 1988

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Coram: The Hon. Deputy Judge Bokhary, Q.C. in Court

Date of Hearing: 9 December 1988

Date of Delivery of Judgment: 9 December 1988

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J U D G M E N T

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1. The Claimant used to work for the Defendant as a supervisor at their electronics factory. She was summarily dismissed on January the 2nd this year.

2. On April the 13th this year, she brought proceedings in the Labour Tribunal claiming wages in lieu of notice, a sum due in respect of annual leave pay, double pay and severance pay. The claim in respect of annual leave pay was conceded in the Tribunal below. The learned Presiding Officer therefore gave judgment in respect of that claim. He also gave judgment for the Claimant in respect of the other three claims, that is to say, wages in lieu of notice, double pay and severance pay.

3. The Defendant appealed (with leave) against all three of these awards, but abandoned the appeal when it was open this morning insofar as it related to double pay.

4. The Defendant had commenced a period of leave on December the 14th last year. The issue was, and is, whether she was entitled to absent herself from work until January the 2nd this year. She said that she had the Defendant's permission to do that. The Defendant says that she only had permission to stay away from work until December the 23rd last year.

5. Originally, there were a number of complaints as to how the Presiding Officer set about determining this issue. Now, however, it is, I think, conceded that he did not in fact resolve this issue. That is certainly my understanding of the matter. Leaving that issue unresolved, he proceeded to consider whether the Defendant would have been entitled to dismiss the Claimant summarily if she had no permission to stay away for as long as she did. He came to the conclusion that even in the absence of such permission, the Claimant was not liable to be dismissed summarily.

6. In the course of his able submission on behalf of the Defendant, Mr Hung said that his client would be entitled to dismiss the Claimant summarily under Common Law if she had disregarded an essential condition of the contract of service. Here, he relied on the decision on the Court of Appeal in Laws v. London Chronicle Ltd [1959] 1 WLR 698; [1959] 2 All ER 285. In this contention as to the law, Mr Hung is, in my judgment, correct.

7. As to the facts, he contends that there was here such disregard.

8. Mr Hung also submitted that quite apart from its rights under the Common Law, his client had a right under the written contract of employment, clause 5 of which reads :

'Should the employee be absent from work without the consent of the employer, the employer can summarily dismiss the employee without prior notice or compensation.'

9. This being the position at Common Law, and such being the contract between the parties, what were the facts found by the Presiding Officer? His determinations of fact are not open to attack in the way that they would be if an appeal on facts was open. This appeal is, and can only be, on a point of law. It appears to me to be a clear implication of the Presiding Officer's findings of fact that the Claimant honestly believed that she was entitled to stay away for as long as she did.

10. Mr Hung conceded that if this be so, then he would have difficulty in establishing a right to dismiss summarily at Common Law. He says, however, that this still leaves it open to his client to dismiss summarily under the clause in the written contract of employment which I have mentioned.

11. But it also appears to me to be a clear implication of the Presiding Officer's findings of fact that the Claimant was not only honest but also reasonable in her belief that she was entitled to stay away until the time when she in fact returned.

12. Mr Hung, who has throughout argued this case with skill and judgment, conceded that if the claimant was acting reasonably, his client would have difficulty in establishing a right to dismiss summarily even under the clause to which I have made reference.

13. In my judgment, he is correct in making this concession. As a matter of construction that must, I feel, be right. In these circumstances there was no need to resolve the issue as to whether there was, in fact, actual permission to stay away until January the 2nd this year. This is not to say that it was not desirable that such a finding be made. All I say is that it was not, in the result, necessary. If the issue was not resolved, then complaints as to how it was resolved must necessarily fall away. And if the result would be the same however it was resolved, then the failure to resolve it does not really matter.

14. The limited scope of these appeals is no doubt a wise thing when the overall position is considered. But from time to time it is apt to leave one side or the other somewhat dissatisfied. This may well be such an instance. Nevertheless, the course which I should take, and am bound to take, appears clearly to me; and that is to dismiss this appeal, which I do.

Representation:

Mr Andy Hung instructed by M/s Y.T. Chan & Co. for the Appellant.

Miss Lam Po Chu, Respondent, in person.