Yau Luen Transportation Co Ltd v. Kwok Fu and Others

DCCJ000002/1974

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

LABOUR TRIBUNAL APPEAL NO. 2 OF 1974

( Labour Tribunal Claim 857 / 73 )

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Coram: D.A. Davies, D.J.

Date of Judgment: 26th March, 1974.

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JUDGMENT

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1. This is an appeal against a decision made in the Labour Tribunal on 21st January, 1974, is which the learned President held that the 5 Respondents herein are entitled to recover from the Appellants herein (their erstwhile employers), one month's wages in lieu of notice.

2. The brief facts of the case in the court below are that in order is cover up the loss of ten bags of sugar dropped (it is conceded accidentally) into the sea during a lighterage operation, the Respondents broke open a number of full sacks and "bled" some of the contents into ten empty sacks.

3. The relevant portion of the learned President's decision in which this evidence is dealt with, and which forms the basis of the present appeal, reads as follows:-

"What I find it rather difficult to understand is the claimants later tried to divide some of the remaining bags from one into two to make up the missing ten bags. I had the opportunity of seeing the claimant's during the hearing and they appeared to me to be rather unintelligent individuals. They are also illiterate, and this could be borne out by their signatures in the Form of Claim. The 5th claimant in fact only put down ...(illegible). This was a stupid act done with no dishonest or malicious intent, but out of fear far, and to avoid, reprimend.

On these facts, I would be quite prepared to rule that the defendant was not justified the claimants summarily."

4. Mr. Woo counsel for the Appellants, has argued that this approach to the matter by the learned President constitutes an error is point of law.

5. It has been impressed upon me that it is not, and never was, the case for the Appellants for the dropping of the ten sugar bags into the see was other than accidental; but Mr. Woo has submitted that the finding that the conduct of the Respondents in dividing the remaining sugar to cover up the less, was done with no dishonest intent cannot be sustained.

6. He further submits that even if it had been done without dishonest intent. it nevertheless, on other grounds, constituted misconduct sufficient to justify the Appellants in summarily dismissing the Respondents.

7. In reply to these submissions, those of the Respondents who attended the hearing of this appeal, and who elected to address me, have urged upon me.

1) That the Respondents had no intention of stealing any sugar, or of enriching themselves in any way. and

2) That on previous occasions when accidents of a similar nature had occurred, the Appellants had made deductions from the wages of the workers involved, in order to make good the losses, and the Respondents wished to avoid that happening on this occasion.

8. Dealing now with the first point raised by Mr. Woo. I have no means of knowing in what way the learned President would define the word dishonest but the references which he has made to the intelligence and literacy of the Respondents is strongly suggestive that he believes that differing standards should be applied to various strata of society.

9. I should perhaps mention here and now that the two Respondents who addressed as during this appeal revealed none of the lack of intelligence which so impressed the learned President. On the contrary, they were both mentally alert and expressive.

10. In any event however. I would not agree that one can apply multiple standards The Shorter Oxford Dictionary defines "dishonest" as follows:

"Of actions, etc: Not straightforward or honourable, underhand: now, fraudulent knavish.

Of persons: Wanting in honesty; disposed to cheat or defraud; thievish."

11. For the purposes of this appeal. I am prepared to accept fully the uncontested proposition that the Respondents had no intention to enrich themselves. but only to conceal the loss of ten bags of sugar. At the same time however, it must have been and certainly still is, obvious to anyone of the meanest that the success of this enterprise was totally dependant upon fraud namely the deception of the consignee and thus of the Appellants. Had there been a successful outcome. from the point of view of the Respondents. the consignee would have unwittingly paid for ten bags less (is quantity) of sugar than he had actually received.

12. If this is not dishonesty. by the standards of any persons or class of persons in the community. then I am constrained to say that I do not know what is.

13. On this ground alone I would disagree entirely with the finding of the learned President, who clearly allowed his definition of dishonesty to be influenced by what at best can rank as mitigating factors only.

14. I also however, agree with the other leg of counsel's submission to wit that even misconduct which does not involve dishonesty may in certain circumstances suffice to justify an employer in summarily dismissing an employee.

15. The authorities quoted to as clearly illustrate that where the conduct complained of is such that the confidential relationship between employer and employee is ruptured, or where it causes loss, or even it seems probable, loss of reputation by the employer, summary dismissal may be justified.

16. It appears from the facts before me, that both such circumstances obtain in the instant case.

17. Quite obviously, after the incident of the division of the sugar bags, the appellants would never again feel able to trust the Respondents, and equally the consignees of the sugar, and anyone also who knows of the incident. might well have second thoughts about contracting with the Appellant company in future. To this extent, it follows that the Appellants must have lost confidence in the Respondents, and in turn, the Appellants. must have suffered in their business reputation.

18. I should perhaps add that the plea of the Respondents that they had grounds to fear a deduction in wages if the loss were discovered, even if correct. merely explains, but cannot excuse their misconduct.

19. Clearly, if the Appellants had attempted to make any such deduction, and the Respondents considered it inequitable or unjust, their ready would have been in their hands at that stage. in the same way as it had been on the other occasions complained of by the Respondents.

20. On all the grounds I have hereinbefore mentioned, the decision of the learned President that the Appellants were not entitled to summarily dismiss the Respondents cannot be sustained, and must accordingly be set aside.

21. Any notice which the Appellants in fact chose to give the Respondents was purely gratuitous, did not constitute any form of or estoppel and thus cannot affect my finding in any way whatever.

22. The appeal is allowed and the award made by the learned Respondents to the Respondents as regards wages in lieu of notice is set aside in toto.

23. The Appellants are entitled to their costs of the appeal, to be taxed on Scale IV. I grant a certificate for Counsel.

24. In open court this 26th March, 1974.

Certified true copy:-

Representation: