Cheung Chi Yuk v. Security Alliance Ltd.

HCLA000006/1986

IN THE SUPREME COURT OF HONG KONG

BETWEEN

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Coram: Deputy High Court Judge Scriven

Date of Hearing: 25th April 1986

Date of Judgment: 25th April 1986

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JUDGMENT

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1. This is an appeal by CHEUNG Chi-yuk (the Appellant) and a former employee of the Respondent, against the decision of the presiding Officer of the Labour Tribunal, whereby the Respondent was awarded against the Appellant the sum of $608.30 being 24 days basic salary in lieu of notice.

2. Appeals from the Labour Tribunal are, by s.32 of Cap.25 restricted to matters of law or jurisdiction.

3. The Appellant was first employed by the Respondent in October 1984 as a security guard at the monthly wage of $730 that being his basic salary. His actual emoluments were between $1600 and $1800 per month (including travelling, cost of living and overtime).

4. On 31st December 1984 the Appellant tendered his resignation and this was accepted by the Respondents, to take effect on 30th January 1985.

5. From 1st November 1984 to 6th January 1985 the Appellant was posted to post H101 for duty.

6. It was a condition of his employment that the Appellant should work wherever he might be posted.

7. Whilst he was "working off" his notice the Appellant was posted by the Respondent to a different place of work, namely post H110, which was less than half a mile away from the post H101, but the Appellant declined to accept this transfer.

8. His working hours were from 7 p.m. one evening to 7 a.m. the next morning.

9. Those foregoing facts were all agreed at one stage or other of the proceedings before the Labour Tribunal by both parties, and the Presiding Officer found the order to move from post H101 to post H110 was both lawful and reasonable.

10. When the time came for the Appellant to be replaced a replacement guard was taken to post H101, but a fight ensued, so the Appellant said, between the Appellant and the replacement.

11. The Appellant says that the Respondent authorized the replacement guard to "beat the Appellant up" but the Presiding Officer found against such an event.

12. The Appellant claims that the Presiding Officer erred because he did not have the evidence of any of the Respondent's staff, including the replacement guard himself, before him although they were all present at the scene of the alleged fight. The Appellant maintains that as a point of law the Presiding Officer erred by finding against the Appellant without hearing those witnesses.

13. The true point of course, is not whether a fight took place, or whether the Appellant was assaulted, but whether the Respondent authorized such an assault and if so the Appellant was thereby prevented from working off his notice.

14. In reaching his conclusion that the Respondent did not authorize the assault, the Presiding Officer was entitled to rely on the evidence of the Respondent's personnel officer who was called before him.

15. On the next question, whether the Respondent prevented the Appellant from working after the incident, it is significant that the Appellant did not need medical treatment; he did not report for work next day, but went instead to the Labour Tribunal to make a complaint.

16. He told me from the well of the court that "I was not allowed to leave the company although I was happy to leave at any time," and, "I left because of the assaults."

17. I think it may have come as something for surprise to persons such as this Appellant to find that there are two sides of the law of master and servant. A master is entitled to claim damages for breach of a servant's contract by the servant. In this case the Appellant claims his entire salary for the month of January 1985, on the basis that there was a constructive refusal of the employer respondent to let him perform the balance of his contract. The Presiding Officer found to the contrary, and I cannot say that on the evidence he was, as a matter of law wrong to do so or that he should have had further evidence.

18. Then there was the other side of the coin, which is what this appeal is really about, I suspect; if an employee does not "work out" his notice, the usual penalty he suffers is simply the loss of wages for the entire period for which he was obliged to work; but it is now enacted by the provisions of s.8A(2) of the Employment Ordinance Cap.57, that the damages payable by either party shall be the proportion of the period unexpired of the notice. That means that not only does the Appellant lose his right to wages by leaving before his notice has expired, but he also exposes himself to a claim for damages, proportionate to the time he should have served, if his breach is unlawful.

19. Section of Cap.57 provides that an employee may terminate his employment without notice or payment in lieu: -

Whilst the Presiding Officer did not specifically deal with s.10 of Cap.57 in his findings - part of the evidence before the Tribunal was the Appellant's own statement made on 19th April 1985 from which it is clear that, in the "assault" of which he complains, and which he describes as a beating up, no blows were struck at all and no one was hurt. There were no grounds therefore for the Appellant to be said to be fearing physical danger from violence, indeed he never alleged such a fear specifically.

20. In all these circumstances I can find no basis in law for interferring with the decision of the Presiding Officer's decision and the appeal must be dismissed. I so order.

Dated this 25th April 1985.

Representation:

Appellant in person.

Respondent in person.