Afia Worldwide Insurance v. Ho Yuen-seung and Others
Read the full judgment text of DCMP 12/1979 on BabelCite. This District Court judgment.
1. This is an appeal against a decision of the Labour Tribunal holding that the appellant ("the employer") was liable to make severance payments to the first three respondents ("the employees"). The employer has abandoned the appeal against the award made in favour of the fourth respondent.
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DCMP000012/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON APPELLATE JURISDICTION LABOUR TRIBUNAL APPEAL NO. 12 OF 1979 (Miscellaneous Proceedings No. 163 of 1979) -----------------
----------------- Coram: E.C. Barnes, D.J. Date of Judgment: 6th June 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal against a decision of the Labour Tribunal holding that the appellant ("the employer") was liable to make severance payments to the first three respondents ("the employees"). The employer has abandoned the appeal against the award made in favour of the fourth respondent. 2. The employer is an insurance company carrying on its business at the World Trade Centre, 25th floor, Hong Kong. The employees had been employed as clerks in that business at that place for some years prior to 1st December, 1978 when the employer dismissed them. The employees had throughout the period of their employment worked in the "Claims Department" of the employer's business. 3. There was conflict in the evidence before the Tribunal about the events which led to the dismissals. It was the employer's case that two of the employees were told a day or so before 1st December 1978 that they were to be transferred from the Claims Department to the Central Filing Department; that they refused to accept the transfer and indulged in misbehaviour together with the other employee who supported their resistance to the transfer; and that all three were dismissed because of their "uncooperative behaviour". The employees' case was that there was no transfer request and that they were dismissed as a result of the employer's decision to retrench staff. The Presiding Officer found that two of the employees were told that they were to be transferred, that "they were reluctant to be transferred away from the Claims Department and had the moral support of [the other employee]". He also found that the employer's assistant manager told the employees on the day of their dismissals that the employer "had to sever staff". 4. Sections 31B and 31Q of the Employment Ordinance, insofar as they are material, provide as follows:-
5. The relevant "redundancy situation" is that set out in S. 31B(2)(c). S. 31B(2)(a) is relevant only to the extent that it explains what is meant by "that business" in S. 31B(2)(c). By virtue of the provisions set out above the Presiding Officer had to find the employer liable unless it was proved that -
6. In his decision the Presiding Officer said:-
7. The Claims Manager's admission came by way of an answer to a question asked by the Presiding Officer. The question and answer were as follows:-
8. It appears, therefore, that the Presiding Officer thought that there was a redundancy situation once there was a reduction in the number of clerks employed in the Claims Department. If, under the employees' contracts of employment, they had been engaged by the employer in its insurance business as Claims Department clerks exclusively he would have been correct in concluding that a reduction in requirements for Claims Department clerks meant ipso facto a redundancy situation. But he did not make, and the evidence did not support, such a finding; and the employees do not contend that they were so engaged. 9. As to this part of the case the only findings which could be made on the evidence are that (1) the particular kind of work for which they were engaged was clerical work in connection with the employer's insurance business, and (2) the place where they were "so employed" was the employee's place of business. Accordingly, in order to determine whether it was proved that there was no relevant redundancy situation the Presiding Officer had to consider whether there was evidence that, at the date of dismissal, the insurance business of the employer was such that the requirements for employees to do clerical work in connection with it had not ceased or diminished and were not expected to cease or diminish. 10. It was common ground that -
11. Those facts, unless shown to be unrelated to a diminished need for clerks by the business as a whole, tend to prove a redundancy situation. The employer, therefore, had to prove, in the course of any attempt to rebut the presumption, that there was no correlation between those fact and a diminished need for clerks. 12. The employer did adduce evidence that the displaced Claims Department clerks were to be assigned to the Central Filing Department. The Presiding Officer does not say expressly that he accepted that evidence but his observation that the employer might not have dismissed the employees had two of them not been "reluctant to be transferred" implies that he did accept that there were clerical position to which the two could have been transferred. 13. That evidence did tend to prove that the diminished need in the Claims Department was not by itself symptomatic of a diminished requirement for clerks by the business as a whole. But the fact of the diminished need in the Claims Department was not "by itself". It co-existed with the fact of decreasing numbers on the payroll. Thus, proof that the displaced Claims Department clerks could be employed in Central Filing did not amount to proof that there was not a diminished requirement for clerks by the business as a whole. For that to be proved the evidence had to go further and show either that the Claims Department was the only part of the business with fewer clerks than before or that the decrease in the number on the payroll was due to a diminished requirement for employees other than clerks. 14. Apart from the evidence that the reason given by the employer to the employees for the dismissals was a diminished requirement for staff the only other evidence concerning the staffing position of the employer came from the employer's representative at the Labour Tribunal. He supplied the Tribunal with the following sample of "gobbledygook":-
15. The evidence before the Tribunal did not prove that there was no diminished requirement for employees to do clerical work nor did it prove that there was no expectation of a diminished requirement. The Presiding Officer, therefore, had to find that there was a failure to prove a "non-redundancy situation". 16. In finding that the employer had not proved "the contrary" under section 31Q the Presiding Officer had in mind a meaning of redundancy different from that adopted above. Nevertheless, the reason which the employer advanced before the Tribunal as the reason for dismissing the employees was not accepted by the Presiding Officer as the factor to which the dismissals were wholly or mainly attributable. The Presiding Officer clearly thought that the dismissals were mainly attributable to a diminished requirement for clerks in the Claims Department. He accepted that the employer at the time of the dismissals attributed them mainly to the fact that the requirements of the business for employees had diminished. Thus, if he had adopted the meaning of redundancy accepted in this decision he must necessarily have found that it had not been proved that the dismissals were wholly or mainly attributable to something other than an actual or expected diminished requirement for clerks by the employer's insurance business. 17. In short, he would have come to the conclusion that the employer was liable to pay severance payments to the employees. 18. The appeal is dismissed. The Appellant is to pay the Respondents' costs to be taxed under the Upper Scale. 19. Dated this sixth day of June, 1980.
Representation: R. Ribeiro instructed by Johnson, Stokes & Master for Appellant. N. Clough, Legal Aid Department for Respondents. |