Yeung Kin Ha v. El Grande Holdings Ltd

HCLA000158/2003

HCLA 158/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 158 OF 2003

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 4659 /2003)

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Coram: Deputy High Court Judge K Y Chan in Court

Date of Hearing: 28 July 2004

Date of Judgment: 28 July 2004

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J U D G M E N T

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1.The Appellant commenced working for the Respondent on 30 August 1999 as a clerk. She left the Respondent's employment in April 2003. When she entered into her employment, one of the terms was that she would be paid an end of year payment which covered the period from 1 February of a year to 31 of January of the following year. Such payment would be paid around the Chinese New Year in the following year.

2.However, she was not paid the end of year payments around the Chinese New Years in 2001, 2002 and 2003. After she had left the employment of the Respondent in April 2003, she claimed for these payments at the Labour Tribunal. Her claim was however rejected by the Presiding Officer. She now appeals.

3.The evidence of the Respondent before the Tribunal contained a dialogue between the Presiding Officer and a Mr Leung Chi Hoi of the Respondent in Chinese as follows:

“問:	譬如你當我係其中一個同事，即係重複一次當時開會嗰個過程，你講啲係乜嘢呢？
答:	我對同事講，我話因為經濟嘅低迷，公司亦都係呢幾年都賺唔到錢，亦都嗰個經濟能力上面都唔可以發放到年尾嘅雙糧，即係希望大家明白到而家個處境，公司就決定咗由2001年度開始就取消咗個雙糧嘅制度，同時我就好多謝佢哋，之後因為亦都冇人反對，所以好多謝佢哋。亦都係喺同時就公司都決定咗，就每一個同事因為冇雙糧，但係我哋能力可以畀到500鈫每一個同事，所以喺當時就發放咗500鈫嘅呢個bonus畀每一個同事，即係唔理佢哋個position係乜嘢或者個人工係乜嘢。喺當時就冇人反對呢件事。
問：	即係當時就係你宣布呢個安排？
答：	係，係，係。
問：	佢哋係冇反對嘅意思，即係佢當時嘅反應係點呢？
答：	嗰個反應當然冇乜 - - 當時冇乜人出聲對我反映任何嘅嘢，所以我當時亦都好多謝佢哋咁體諒到公司個處境。
問：	即係有你講，佢哋全部都唔出聲？
答：	係，冇人出聲。”

4.In gist, Mr Leung repeated what he said a meeting which took place on 28 January 2002 in which he announced to all the colleagues present which included the Appellant that because of the poor shape of economy, the Respondent had not been able to make much profit in those few years. He wished to have the understanding of the colleagues on the situation and that the Company had decided to cancel the year-end payment system from year 2001 onwards. At the same time, he said the Company was able to pay a bonus of $500 to each and every employee regardless of their position or salary. There was no objection. In fact no one had said anything.

5.The evidence of the Appellant is in her 1st witness statement of 18 June 2003. She said:

"To the best of my recollection and belief, on about 28 January 2002 in the afternoon, Mr C H Leung, the General Manager of the Defendant Company orally announced to all the employees at the head office that the Defendant Company would pay to each employee $500 as bonus for year 2001. But Mr Leung was silent about the double pay for the period of 1 February 2001 to 31 January 2002. Nor had the employees of the Defendant Company been requested to sign any acknowledgement or written consent.

On 31 January 2002, the said bonus plus basic monthly salary for January 2002 in the total sum of $9,975 was transferred by the Defendant Company to my bank account direct.

As the Defendant Company, at all material times during my employment had never expressly or impliedly announced the cancellation of the double pay for year 2001, I reasonably expected the Defendant Company would pay back to me the double pay for year 2001 in the future. I wish to say that I dare not voice out in respect of the double pay in arrears at that particular time because I did not want to be sacked off. Further or in the alternatively, I simply accepted the said bonus for the purpose of mitigating my loss that shall not be taken as any waiver of the Defendant Company's liability to pay the same to me."

She further said in paragraph 3 of her 2nd witness statement dated 7 July 2003 as follows:

"By the time (i.e. on 28 January 2002) Mr C H Leung, the General Manager of the Defendant Company made an oral announcement to al the employees that the Defendant Company would pay to each employee $500 being bonus for year 2001, to the best of my recollection, Mr Leung had never expressly and/or impliedly stated that the Defendant Company had cancelled or substituted the said bonus for the double pay for the period of 1 February 2001 to 31 January 2002. It only came to my knowledge by that time the Company would pay to each employee the said bonus."

There was a conflict of evidence between the Appellant and the Respondent.

6.The Presiding Officer accepted the evidence of Mr Leung for the Respondent and found that Mr Leung had in the meeting of 28 January 2002 told the Respondent's employees including the Appellant that the end of year payment was cancelled with effect from the year 2001 and for that particular year, there was a bonus of $500 to each and every employee.

7.The Presiding Officer further found that though the Appellant had not signed any document to signify her acceptance of the variation of the employment contract, the Claimant had accepted the $500 bonus for year 2001 and continued to work for the Defendant without any objection or complaint when her year-end payment for year 2001 and 2002 were not paid. The Presiding Officer thus found that the Claimant had accepted the variation of her employment contract by her conduct.

8.The Appellant raises 3 grounds of appeal: She says that the Presiding Officer has erred in law:

(1) in holding that the acceptance of $500 bonus was in any way related to the cancellation of the end of the year payment for 2001 when the Tribunal's factual finding was that Mr Leung had announced two distinct matters to the employees (including the Appellant) in clear terms namely:

(a) that the end of year payment was cancelled from year 2001; and

(b) that for year 2001 the Respondent would only give a bonus of $500 to the Appellant.

(2) in holding that the Appellant's acceptance of the $500 and continuation to work with the Respondent without raising any objection or complaint constituted acceptance of the cancellation of the end of year payment; and

(3) in holding that variation of the Appellant's employment contract (i.e. the cancellation of the end of year payment) was supported by consideration.

9.On the 1st ground, Mr Sin for the appellant said that the Tribunal's finding was that firstly there was an announcement that there would be $500 bonus for the year 2001 and secondly there was the announcement of cancellation of the end of year payments and these were separate and independent findings. He therefore complained that the Presiding Officer should not have related these two findings with each other so that the $500 bonus had become a substitute for the end of year payment for 2001.

10.Mr Jim for the respondent argued that there was only one announcement and the two matters related to one another namely the end of year payments for 2001 and subsequent years and that the end of year payment for 2001 was to be due in a few days' time.

11.I accept Mr Jim's argument. I find that the two matters namely the payment of $500 bonus for year 2001 and the cancellation of the end of year bonus for that year and subsequent years were matters announced on the same occasion and these matters were supposed to be part and partial of the same subject matter; namely the cancellation of the end of year payments from 2001 onwards. The payment of $500 bonus for that particular year was intended to buffer the unpleasantness of the variation and as a small consultation.

12.Regarding ground 2, Mr Sin relies on the famous case of Felthouse v Bindley (1962) 11 CBNS 869 and argued that silence does not amount to acceptance of an offer. He further relies on the case of Cowey v. Liberian Operations Limited [1966] 2 LR 45 at 49 - 50.

13.The Plaintiff in Cowey's case was a Marine Engineer. He was employed with an understanding that the employment could be terminated with 3 months' notice. After he had commenced duty, the Defendant circulated a notice which read: "employees will be considered as engaged on the monthly basis and termination of employment either by the employer or the employee shall require one month's written notification unless otherwise agreed by the parties". Mr Cowey gave evidence on the notice which evidence was accepted by His Honour Judge Block. The learned Judge said this at page 49:

"Mr Cowey tells me and I accept his evidence that in view of what had passed between himself and Mr Averill and how he made it clear to Mr Averill that he considered that he had to give his existing employers 3 months' notice and how Mr Averill had accepted that, and in any event from the nature of Mr Cowey's salary and employment, responsibility, he firmly concluded that that term, while possibly applicable to lower employees, lower in responsibility and salary, such as shorthand typists, that it did not in any event affect him."

14.It was on this basis that the learned Judge found that the notice had not varied the terms of employment of Mr Cowey and Mr Cowey was still entitled to 3 months notice of termination. That scenario was very much different from the scenario in the present case. In this case there was an expressed announcement in a meeting at which the Appellant took part and there was no room for any misunderstanding that the variation as announced did not apply to her.

15.After hearing the variation, she not only raised no objection or comment or complaint, she just continued with the employment for over another year. Her conduct clearly amounted to an acceptance of the variation. If it was not expressed acceptance, it was tacit acceptance by conduct. I do not think I can fault the finding by the learning Presiding Officer on this point.

16.Regarding the 3rd ground on lack of consideration, I again cannot agree with Mr Sin. I find that in accepting the variation, the Appellant was able to continue with her employment in the same amicable relationship without any strain or turbulence. I find that if she should have objected to or disagreed with the variation. The Company would have taken steps to sort out the difference with her and such step could include termination of her employment in accordance with the terms of the contract and the Employment Ordinance. As she has made it clear in her witness statement that she dared not object because she did not want to be sacked.

17.On this point, I would also rely on the case of Williams v. Roffey Brothers and Nicholls (Contractors) Ltd [1990] 2 WLR 1153 at 1165C-H. It is quite clear that the continuation of her employment on the same terms and conditions though without the end of year payment was a good consideration particularly at a time when Hong Kong's economy was not performing well.

18.In the premises, I have to dismiss the Appellant's appeal with costs and I so order.

Representation:

Mr Antony M H Sin, instructed by Messrs Chong & Yen, for the Claimant

Mr Jacky Jim, instructed by Messrs Lo, Wong & Tsui, for the Defendant