South Textiles Ltd v. Tang Lam Fong

HCLA000040/1982

BETWEEN

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Coram: Hon. Liu J.

Date: 23 March 1983

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JUDGMENT

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1. This is an appeal from the decision of the Presiding Officer of the Labour Tribunal. Upon application for leave to appeal, fresh grounds were sought to be introduced. Such request was granted as was the application for leave. The new grounds of appeal read as follows:

2. At the hearing of the appeal, counsel for the appellant was content to rest on the new grounds admitted alone.

3. The respondent/claimant was dismissed for allegedly being absent from his post without leave. The question was hotly contested before the Presiding Officer of the Labour Tribunal, and the factual issue was ultimately found in favour of the claimant/respondent. That factual decision of the Presiding Officer is no longer disputed by the appellant. What is being challenged by the appellant is: In so far as the decision of the Presiding Officer awarded a severance pay in the sum of $10,768.30, such determination is said to have been arrived at and award made in breach of the statutory duty and obligation imposed upon the Presiding Officer by section 20(3) of the Labour Tribunal Ordinance, whereby the Presiding Officer was enjoined to investigate any matter which he (would) consider relevant to the claim whether or not it(had)been raised by a party".

4. The claimant/respondent having had it decided in his favour of having been wrongfully dismissed, prima facie section 31B sub-sections (1) and (2) and section 31Q would spring into operation. Section 31B sub-section (1)(a) entitled the dismissed employee to a severance payment to be calculated in accordance of section 31G if his dismissal was by reason of redundancy. Section 31B(2) setsout in its paragraphs (a), (b) and (c) the facts, the establishment of which shall by that very sub-section be taken as proof of a dismissal by reason of redundancy. I have not been referred to any section in the Employment Ordinance chapter 57, whereby an employer may, upon proving certain fact, be accepted by the Tribunal as having successfully taken a case of dismissal out of the category of "dismissal by reason of redundancy". Dismissal not by reason of redundancy may, as it would seem, therefore be alleged and substantiated by various means on behalf of the employer as a question of fact. Thus, all the usual approaches are open to an employer in his attempted rebuttal of the statutory presumption.

5. Lastly, I turn to section 31Q of the Employment Ordinance, whereby unless the contrary is proved, any dismissal of an employee within the meaning of section 31B, i.e. being employed under a continuous contract for a period of not less than 24 months ending with the relevant date, shall be presumed to have been dismissed by reason of redundancy.

6. It was submitted by counsel that the Presiding Officer was not to invoke the presumption under section 31Q of the Employment Ordinance unless and until the nature of the dismissal had been properly broached in the circumstances of the case. It was urged upon the court by counsel for the appellant that the central issue and the surrounding circumstances of this case strongly suggested, as it should suggest to the Presiding Officer, that the wrongful dismissal as found was by no means a dismissal by reason of redundancy.

7. The Presiding officer has had it recorded in his written reasons as follows:

"Section 31Q states that an employee been dismissed by his employer shall unless the contrary is proved be presumed to have been so dismissed by reason of redundancy. At the trial, the defendant did not adduce any evidence to rebut such presumption. I find the the defendant has not discharged burden of proof under section 31Q. I, therefore, find that the claimant was dismissed by the defendant by reason of redundancy and I, therefore, awarded the claimant the sum of $10,768.30."

8. On the face of it, that portion of the decision of the learned Presiding Officer may be read as indicative of the holding of some investigation into the nature of` the alleged dismissal in the instant case. But when reference was made to the notes of proceedings by counsel for the appellant, it can readily be seen that indeed the central issue and the peripheral cross-examination and questioning by the court were all executed within a very narrow and well-defined compass. It is reasonably clear, in my view, that the nature of the dismissal as a question of fact without the aid of the statutory presumption was not a matter in the forefront of those participated in the proceedings before the Labour Tribunal, including the learned Presiding Officer himself. It cannot, therefore, be fairly said that such matter had been, in any way, investigated.

9. The learned Presiding Officer was well aware of the existence of the statutory presumption, and the same was, indeed, invoked. What falls to be decided is whether the rebuttal of such a statutory presumption was a proper matter which had to be investigated under section 20(3) of the Labour Tribunal Ordinance. In my view, it is such a matter and the learned Presiding Officer can be, as submitted by counsel, faulted in his award for the severance payment in the sum of $10,768.30.

10. In the transcript of notes of proceedings of the learned Presiding officer, he specifically recorded as having fully explained to both the claimant and the defendant representative, the "detailed reasons" of his decision which must necessarily comprise the passage I have quoted verbatim from his written decision. It would have been open to the appellant's representative before the Labour Tribunal to request the learned Presiding Officer to investigate matters relating to any possible rebuttal of the statutory presumption. No such request was made. At one time, I was impressed by the observations contained in this quoted passage as being possibly capable of putting the appellant sufficiently on notice. Mr. Mok, counsel for the appellant, submitted that notice came too late at the conclusion of the proceedings, at the time when a layman would not expect further matters to be examined and conclusions reopened. I can see the wisdom of and the logic in that observation of counsel.

11. It was fairly conceded that the appellant could have sought a review under the Labour Tribunal Ordinance without the necessity of this present appeal. As the matter stands it is evident that the decision of the learned Presiding Officer, in so far as it relates to the award of severance payment of $10,768.30, cannot be left undisturbed. I would, therefore, allow the appeal on that part of the decision of the learned Presiding Officer.

12. The matter will, as counsel conceded, have to be remitted back to the Labour Tribunal for investigation to be made into matters canvassed by counsel in this appeal. If an application for review had been properly made by the appellant, the necessity of the instant appeal could have been avoided and its legal expenditure spared or otherwise averted.

13. The matter will now have to go back to the Labour Tribunal by way of remission, and the matter will have to be examined, thus affording the appellant a like opportunity to have the matter ventilated as if an application for a review had duly been made. The only certainty of redundancy that this court can as at this time envisage is the redundancy in the prosecution of the instant appeal. I, therefore, order that appeal be allowed on the severance payment awarded in the sum of $10,768.30 and that the question of severance payment be remitted to the Tribunal for determination, with emphasis on any rebuttal of   the section 31Q presumption. Subject to what counsel has to say, I order the appellant to pay the respondent $75 for his expenses for today. (Further submissions made).

14. Counsel contented that due adoption of the procedure for review would be dependent upon the awareness of the appellant of the relevant section therefor in the Labour Tribunal Ordinance. Counsel also referred to the prospects of success. The prospects of success will remain a constant factor as far the two stages of the proceedings referred to in my judgment are concerned at least before the ultimate determination of the learned Presiding Officer.  Ignorance of the law is certainly no excuse. If it could be accepted as some moral justification, the responsibility for the monetary loss arising from the prosecution of the instant appeal would still have to be decided. The appeal arose as an oversight. Rebuttal of the statutory presumption could have been considered and determined on an application for a review. The remission to the Tribunal for adjudication on the question of severance payment by the learned Presiding Officer will stand in the stead of a hearing before the same learned Presiding Officer on an application for a review if it had been duly made. On whoever the responsibility for the extra costs lies, it is certainly not to be shouldered by the respondent.  I have no hesitation in not awarding costs to the appellant for its success in the instant appeal. The loss to the respondent said to be $75 for today must be fairly compensated. I order the appellant to pay to the respondent $75.

Representation:

Mr. Y.C. Mok instructed by Messrs. C.Y. Kwan & Co. for the Defendant/Appellant.

Tang Lam Fong, the Claimant/Respondent, in person.