Chan Tsz Kwan v. Wing Yip E&M Ltd

HCLA36/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 36 OF 2006

(ON APPEAL FROM LBTC NO. 6154 OF 2005)

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BETWEEN

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Before : Hon Yam J in Court

Date of Hearing : 17 December 2007

Date of Judgment : 11 January 2008

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J U D G M E N T

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1.The appellant was the employer of the respondent claimant.  On 22 June 2006 in the Labour Tribunal below the presiding officer Mr Mak Kwok Cheung decided that the employer was not entitled to dismiss the employee summarily pursuant to section 9 of the Employment Ordinance, Cap. 57.  On 6 September 2006 after the company lodged its appeal, the learned presiding officer reduced his oral reasons of judgment into writing. 

2.The presiding officer in his oral reasons for judgment listed out the complaints of the employer in paragraph 6 therein as follow :

「

6.

永業公司嘅董事同埋股東馮德樂先生作供，佢講陳先生[即申索人]喺東莞環崗湖嘅工程之中處理不當，令到公司遲遲收唔到工程費；再者，陳先生喺中山香格里拉酒店嘅工程之中，誤導咗公司應收嘅工程款項嘅金額，而喺深圳黃埔雅苑嘅工程之中並冇通知被告公司收取咗上判康和公司嘅人民幣73,972 鈫，亦都冇將該款項交畀公司。與及喺05 年9 月12 日，陳先生訛稱要入醫院而借款5,000 鈫，喺05 年9 月，陳先生拒絕返香港交代工作嘅事，最後要求100,000 鈫先至肯返香港，所以將陳先生即時解僱。此外，證人亦都講永業係喺04 年4 月因為誠信嘅問題而將馮新成解僱。」

3.In dealing with the last allegation that the claimant Mr Chan had not attended the meeting scheduled on 4 October 2005 in Hong Kong, the presiding officer said :

「

8.

就案件號碼05 年6154 號陳子君先生嘅案件，喺呢件案件之中，永業公司負有對將陳先生即時解僱為恰當嘅舉證責任，本席聽取咗所有嘅證供之後，認為永業公司所提出嘅指控係出於雙方溝通上不足所引致，陳先生被拖欠薪金九個月多，佢所講佢冇錢返香港開會係可以理解嘅，喺咁嘅情況之下，永業公司應該與陳先生商議一個可行嘅開會嘅地點同埋方式，因此本席裁定永業公司並不能依據《僱傭條例》第 9 條將陳先生即時解僱。……」

4.In other words in the oral judgment the presiding officer had only dealt with the issue why Mr Chan did not attend the meeting and further relied on the fact that Mr Chan was owed nine months of salary by the company.  He has not dealt with the other four allegations of the company leading to the summary dismissal of Mr Chan by the company namely :

(i)	inappropriate handling of the contract works at東莞環崗湖leading to the company’s failure to receive the contract payment;
(ii)	misleading the company about the amount receivable under the construction contract amounts in the construction works at Zhongshan Shangri-la Hotel;
(iii)	failure to inform the company that he had received RMB73,972 from the main contractor康和公司in the construction work at深圳黃埔雅苑; and
(iv)	misappropriated $5,000 as hospital charges in September 2005.

5.In the written reasons for judgment in paragraph 19 the presiding officer said :

「

19.

雖然被告列舉出多項事件以證明申索人在職期間行為不當，但本席不相信被告在東莞環崗湖的工程遲收到工程費，是出於申索人一己之力而可造成；本席接納申索人簽署文件D5(4)(a)及(b)的解釋為可信；本席參閱了文件C-12，信納申索人之說法，他從康和公司所到的40,000 元人民幣全部用作深圳黃埔雅苑執缺點之用；申索人在2005 年9 月已被拖久薪金9 個月，本席不相信他需要假稱入醫院才能向被告借款。總體而言，本席認為被告所提出的指控是出於雙方溝通上不足所引玫。申索人拖欠薪金九個月多，他沒有錢到香港開會是可以理解的。在這情況下，被告應該與申索人商議一個可行的開會地點及方式。被告並沒有採取此措施，反而只給予申索人一天時間回香港開會，便隨即斷然將申索人即時解僱。因此，本席裁定被告未能依據《僱傭條例》第 9 條將申索人即時解僱。」

6.The 1^st ground of appeal of the company is that the presiding officer did not deal with those allegations (i), (ii), (iii) and (iv) in the original oral judgment.  His decision thereon in the aforesaid paragraph 19 of his subsequent written Reasons for Judgment is not in his original oral judgment. 

7.Further even those reasons relied on by the presiding officer only dealt with allegations (i), (iii) and (iv) but not (ii). 

8.In any events the reasons given were not convincing and he had not sought to investigate into the detail of those allegations and consider each allegation in detail. 

9.In respect of the 1^st ground of appeal, Mr Desmond Leung, counsel for the company relied on the case of Chan Muk Wing v. Yen Sheng Factory Ltd [1980] HKC 350.  However this decision in the District Court had a different matrix of facts.  In “the certified record of the proceedings” prepared for that appeal, the final decision of the presiding officer therein was :

“

I reject the claimant’s evidence that the defendant without reason dismissed him on 11 June 1979.  I accept the defendant statements that the claimant left the service of his own accord on 9 June 1978.  I find on facts that the defendant company dismissed the claimant for good cause under s 9(a)(i), (ii) and (iv) on 11 June 1979 (see exh D3).”

10.However the final version of the presiding officer’s decision read as follows :

“	I reject the claimant’s evidence that the defendant dismissed him on 11 June 1979.  I accept the defendant’s statement that the claimant left the service of his own accord on 11 June 1979.  I find on facts that the defendant company did not dismiss the claimant.” [emphasis added]

11.In other words in the original decision the presiding officer found that “the defendant company dismissed the claimant for good cause” whereas in the final version he had a contrary decision in that he found that “the defendant company did not dismiss the claimant”. 

12.In the judgment of HH Judge Downey he said that :

“

… Mr Ramanathan [counsel for the respondent employer] contended that the alterations were not made without jurisdiction.  The ultimate decision of the presiding officer (to dismiss the disputed claims of the appellant) remained the same; only the reasons for doing so had changed, and the presiding officer was free to change his reasons.  In any event, he further submitted that the ultimate award or order would have been the same, whichever version of the presiding officer’s decisions I accepted.

There is considerable force in Mr Ramanathan’s submissions.  But, with respect, I think that they tend to overlook the fact that, in this case, the presiding officer had, subsequent to his determination of the claim, moved through the broad spectrum of possible ways of terminating the relationship of employer and employee, ie from resignation or repudiatory breach by the employee to lawful dismissal by the employer.  With the utmost respect to the learned presiding officer, and recognizing that the legislature had deprived him of the very valuable assistance from counsel; such as I have been fortunate to receive, I consider that by embarking upon this exercise, he has created a situation which would lead any appellate tribunal to entertain serious misgivings as to whether he had properly addressed his mind to the evidence before him and the real issues of the case, or carried out his statutory duty to investigate all relevant matters (cf s 20(3) of the Ordinance), or, in general, come to a determination which satisfied it that justice had been done to both parties.”

13.Section 22 provides :

“	(1)	The presiding officer shall deliver his determination of a claim and make such award or order thereon as he may think fit as soon as possible after the conclusion of the hearing of the claim.
	(2)	The reasons for an award or order may be given orally or in writing as the presiding officer may think fit.
	(3)	A presiding officer shall, when he has made an award or order orally, reduce it to writing as soon as possible, and in any case not later than 14 days after the date of the award or order. …”

Downey DJ said :

“

In my judgment, the Ordinance makes a clear distinction between the presiding officer’s determination of the claim and his award or order (see ss 22(1) and 32(1) of the Ordinance).  The time limited of 14 days imposed by s 22(3) strictly applies only to reducing an oral award or order to writing.  Section 22(1) requires the presiding officer to deliver his determination ‘as soon as possible after the conclusion of the hearing of the claim’.  Whether he does so orally or in writing, it seems to me that he must do so before he makes his award or order.  In my view, the question is not within what period can the presiding officer alter or amend his determination, but whether he can alter his determination at all. …”

14.In the case before me the presiding officer did not alter his determination.  In fact he had not make any determination at the time of the oral judgment as to the four serious allegations of the employer leading to his dismissal of Mr Chan summarily.  He had only dealt with the minor allegation of not attending a meeting on 4 October 2005.  In this respect the evidence in fact was that the employer had a letter addressed to Mr Chan dated only on one day before, i.e. 3 October 2005, informing Mr Chan to attend a meeting the next day in Hong Kong.  At the hearing of the appeal no one could tell me how this letter was sent to Mr Chan who was in the Mainland.  Mr Chan’s evidence in the tribunal was that he had never received such a letter.  In the end the employer by giving one day notice to Mr Chan who alleged that he was owed nine months’ salary by then, could not be reasonable notice to an employee directing him to attend a meeting the next day in Hong Kong.  If this was the only ground relied on by the employer company, it would not be surprising that the presiding officer decided that it was not a sufficient ground to warrant a serious summary dismissal as stated in the latter part of paragraph 19 in the judgment as aforesaid. 

15.However the written reasons for decision had expanded the oral decision by considering the other three allegations.  The question now is whether it is proper. 

16.As provided in the aforesaid section 22 a presiding officer could give his reasons for an award or order orally or in writing.  It was only the award or order given orally which has to be reduced into writing not later than 14 days thereafter.  

17.Due to the high volume of works in the Labour Tribunal, when a presiding officer made an award or order he would invariably deliver his oral determination first.  When appeal was lodged by an appellant, the registrar of the High Court will inform the registrar of the Labour Tribunal for a written determination to reach the High Court seven days before the hearing of the application for leave to appeal. 

18.In my view it is not incorrect for a presiding officer to add to his oral reasons delivered in his written reasons for judgment which is consistent with his original determination and finding of facts.  The case of Chan Muk Wing only decided that contrary findings, although lead to the same conclusion would lead any appellant tribunal to entertain serious misgivings as to whether the presiding officer had properly addressed his mind to the evidence before him or carried out his statutory duty to investigate all relevant matters or in general, come to a determination which satisfied that justice has been done to both parties. 

19.If a presiding office would like to change his determination he was given the power to alter or amend his determination by way of a review.  Here it is not a question of reviewing his decision/determination since it is simply a reduction of his oral determination into writing. 

20.However having failed to address those four points of allegations leading to the company’s summary dismissal of Mr Chan, the presiding officer subsequently only dealt with them very briefly.  He did not state his reasons for accepting Mr Chan’s version in opposition to the company’s allegations, or at least not in detail.  He had not dealt with the allegation of the company in respect of the Zhongshan Shangri-la Hotel construction works. 

21.Further at the time of the hearing before the presiding officer, he was already aware that there was already a District Court action DCCT959/2006 by which the company was suing Mr Chan on 25 February 2006 for a sum of $77,682.90 by way of advances to him but repayable on demand.  The company was also suing for an amount of RMB73,972 in respect of the project in Shenzhen福田雅苑工程and alleged that the defendant had double claimed the said sum from the main contractor of the project.  These are allegations on which the company relied in the summary dismissal of Mr Chan.  The dismissal letter dated 5 October 2005 alleged that Mr Chan had not discharged his duties responsibly and had not reported the actual situation in the amount of the contract works leading to the company’s loss of various amounts of receivable contract sums. 

22.In my view the allegations of the company have not properly been dealt with both in the oral determination and the written reasons for decision.  The District Court action is still going on and the decision thereon would have some bearing on whether the company is entitled to dismiss Mr Chan summarily.  The two matters i.e. the claim in the Labour Tribunal by Mr Chan and the claim of the company in the District Court are related matters in respect of the issue whether the company is entitled to dismiss Mr Chan summarily.  It is improper for the same subject matter to be litigated in two different courts.  In my view the presiding officer, having learned of the pending District Court action which is also a subject matter of the counterclaim in the Labour Tribunal, should have transferred the case to the District Court to be tried together with the District Court action. 

23.For the aforesaid reasons I would allow the appeal of the appellant company.  The decision of the presiding officer in the Labour Tribunal below is set aside.  The matter is remitted to the Labour Tribunal with a direction that the presiding officer should transfer the case to the District Court.  The parties may then consider applying in the District Court to consolidate the two actions together.  There shall also be an Order Nisi of costs that the costs of the appeal shall be in the cause of the District Court action.  The respondent’s own costs shall be taxed according to the Legal Aid Regulations. 

Mr Paul H.M. Leung, instructed by Messrs Ng & Partners, assigned by the Director of Legal Aid, for the Claimant (Respondent)

Mr Desmond H.K. Leung, instructed by Messrs Chan, Wong & Lam, for the Defendant (Appellant)