Perera Maluge Jude Errol Susith v. China System Co Ltd

HCLA 68/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 68 OF 2005

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 2062 OF 2005)

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Hearing: 22 March 2006

Date of Handing Down Decision: 27 March 2006

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D E C I S I O N

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Introduction

1.This is an application for leave to appeal against the award made by the Labour Tribunal (“the Tribunal”) on 8 July 2005.  The application is made under s. 32(1)(a), Labour Tribunal Ordinance (Cap. 25) on the ground that the said award is erroneous in point of law.

2.The applicant was the employer defendant in a claim brought in the Tribunal by its former employee.  The gist of the dispute being whether the applicant’s general manager has, on 30 March 2005, summarily dismissed the claimant.  The dismissal, according to the claimant, was effected verbally.  When he testified before the Tribunal, the applicant’s general manager denied he dismissed the claimant and said that he only suspended the claimant’s duties to give the claimant a chance to calm down and reconsider.

3.The amended ground of appeal sets out all the grounds intended to be relied upon at the appeal if leave is given to appeal.  These grounds allege that the Tribunal considered erroneous reasons to support its findings and wrongly interpreted the effect of the applicant’s letter dated 2 April 2005.

4.Counsel for the applicant (correctly) agreed at the hearing of this application that it must have been obvious to the Tribunal the most important (if not the only) issue which the Tribunal needed to resolve was the respective witnesses’ credibility.  This is because the alleged dismissal was made verbally.

5.With that in mind, although the Tribunal has not expressly so stated in its Reasons for Decision, the matters set out in the amended grounds of appeal must have been matters considered by the Tribunal in its assessment of credibility.

6.These matters considered by the Tribunal were in essence the contemporaneous documents and/or circumstances which the Tribunal found to militate against the account testified to by the applicant’s general manager.  For example, the applicant’s failure to telephone the claimant when he allegedly failed to report for duty after the period of “suspension”, its failure to deny in the contemporaneous letter the claimant’s allegation relating to the verbal dismissal and its failure to record therein the decision to suspension or to instruct the claimant to resume duty immediately.

7.The Tribunal was entitled to take into account such matters.  It has not misunderstood or misinterpreted any relevant matters.  There is therefore no arguable error in point of law.

8.Accordingly, this application is refused.

Ms Yvonne Y H Chiu, instructed by Messrs Tung, Ng, Tse & Heung, for the Defendant (Applicant)