De Nicolas, Nenita Cientos v. Lee Fung Lan

HCLA000015A/1997

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Coram: The Hon. Mr. Justice Waung in Chambers

Date of Hearing: 16 & 28 April 1997

Date of Delivery of Judgment: 28 April 1997

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JUDGMENT

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1. This is an application for leave to appeal by the Claimant Miss Nenita de Nicolas from the Order of the Labour Tribunal dated 3rd of February 1997 whereby the Labour Tribunal awarded to the Claimant one month's wage in lieu of notice. The complaint of the Claimant against the above Order of the Labour Tribunal is that she was constructively dismissed pursuant to Section 10 of the Employment Ordinance, namely that the employer Defendant had subjected the Claimant to violence and non-domestic work, in breach of the contract of employment so that the Claimant was justified in terminating the employment (by not returning to work) and in seeking damages for the breaches of contract by the employer. The case of the Claimant is that the Labour Tribunal was wrong to conclude that her claim was limited to one month's pay in lieu of notice. In Ying Cheong Shoe Mft v Yam Yuk Bing & others [1987] 2 HKC 310, Rhind, J. said at page 318H:-

"Although s. 10 has been characterised by the description 'constructive dismissal', there can be no doubt in the present case that it was the employees who terminate the contract when they accepted the employer's repudiation. As the employer was not the 'party terminating the contract', there is no obligation on the employer to pay wages in lieu of notice. That does not mean, however, the employer is entitled to walk away scot-free. Instead of being liable to pay liquidated damages under s. 8A(1), the employer is instead liable to pay unliquidated damages according to ordinary common law principles for breach of contract. Thus, instead of ordering the employer to pay wages in lieu of notice, the learned presiding officer should have assessed common law damages for the employer to pay."

It seems to me that on the materials put before this Court, there is at least an arguable case that the Labour Tribunal failed to have proper regard to this principle of constructive dismissal under Section 10 of the Ordinance and that therefore the Order was erroneous in point of law. Accordingly I am satisfied that leave to appeal ought to be granted to the Claimant and I so order. The costs of the application for leave to appeal shall be reserved.

Representation:

The Claimant Nenita Cientos De Nicolas in person assisted by Tagalog Interpreter, Miss Santos