Wesco China Ltd. v. Wai Oi Chun

HCLA000028/1999

HCLA 28/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 28 OF 1999

(On Appeal from Labour Tribunal Claim No. LBTC 6634 of 1998)

Coram : Deputy Judge Li in Chambers

Date of Hearing : 23 June 1999

Date of Handing Down Reasons for Decision : 23 June 1999

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REASONS FOR DECISION

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This is an application for leave to appeal against the decision of the Labour Tribunal made on 18th March, 1999. Miss Ma for the Applicant indicated that the appeal will be based on two allegations of misconduct. These are translated into grounds of appeal as follows: -

"1. The Learned Presiding Officer erred in law in finding that the Defendant has not disallowed the Claimant from taking leave on 9th February, 1998 and therefore the Claimant's absence from work on that day does not constitute a misconduct.

2. The Learned Presiding Officer erred in law in finding that the conduct of the claimant in being absent from work without leave from her supervisor on 9th February, 1998 and persistently failing to sign and acknowledge receipt of the memorandum dated 11th February, 1998, 6th & 7th July, 1998 was not a wilful disobedience of a reasonable and lawful order and such misconduct as would have not entitled the Defendant to dismiss the Claimant under section 9 of the Employers Ordinance.

3. The Learned Presiding Officer erred in law in failing to take into account the acts of the Claimant and to properly direct herself on the cumulative effect of the series of incidents that took place. If proper consideration has been given by the Learned Presiding Officer or at all, it would have entitled the Defendant to dismiss the Claimant under section 9 of the Employers Ordinance."

2.So far as the first ground is concerned, the evidence before the Tribunal were that after a staff of the Applicant company had announced that because a member of the senior management was indisposed all staff should avoid taking leave, the Claimant gave short notice to take leave to attend ante-natal medical check-up. The notes of proceedings show that two members of the staff of the Applicant said under oath that the application for leave was refused. The learned Presiding Officer in the Reasons for Decision states that the Applicant did not refuse leave. It is not clear how the Tribunal came to such conclusion. It may be that the learned Presiding Officer did not believe the evidence of the Applicant's witnesses. But no reason for rejecting the evidence has been given either. Had the learned Presiding Officer made it clear what and why evidence was rejected, and if the conclusion reached by the Tribunal was not patently perverse, there would be no place for an appellate court to intervene. It may be that, even though the Applicant did refuse the Claimant's application for time off to attend ante-natal check-up, the refusal to grant leave cannot be taken as reasonable or lawful. But that was not the basis of the Tribunal's decision. The learned Presiding Officer held that because the Applicant did not refuse leave, the allegation of absence without leave was not proven. In the circumstances, I should certify this case for appeal on this point.

3.The second ground of appeal contains many issues rolled together. I have already dealt with the issue of absence without leave. Another issue is the refusal by the Claimant to sign for acknowledgment of receipt of a memorandum dated 11th February 1998. In that respect, it was common ground that the Claimant did refuse to sign the receipt on the memorandum which was in fact a written warning concerning her alleged acts of misconduct. The question for the Tribunal to decide was whether the demand for signing acknowledgement of receipt of a written warning per se is a reasonable and lawful order. The learned Presiding Officer decided that it was not unreasonable for the Claimant to refuse to sign because the Applicant had not always insisted on signing. I accept that past practice may be one factor to take into account. But suppose an employer has been insisting on some unreasonable and unlawful practice for 2000 years, does that disentitle an employee to refuse to submit to such practice in the year 2001?

4.It may be that the learned judge dealing with the appeal proper, after taking all relevant factors and circumstances into consideration, will decide that the Applicant's demand for signature for receipt was unreasonable or unlawful. Nonetheless, at this stage before me, my role is not to decide the rights and wrongs. My function is to transmit cases involving arguable points of law to an appeal judge. Since on the face of it the trial court has not discharged its judicial function with the correct approach, it must be a matter of fundamental concern to the law. Accordingly this case should proceed on the second ground as well.

5.The third ground relates to consideration of the so-called cumulative effect of the Claimant's misconduct. The learned Presiding Officer has stated that consideration was given to the cumulative effect. It is very rarely open to an appellate court to doubt such a statement. However, as Miss Ma pointed out, since the conclusions in relation to some or all of the alleged individual acts of misconduct are challengeable, the consideration given by the trial court to the cumulative effect of misconduct may well be based on false premises. The cumulative effect, if any, should be re-examined.

6.For all the reasons given, there must be leave to appeal.

Representation:

Miss Anita Ma instructed by Messrs. C.T. Chan & Co. for the Applicant.