Case Document

100%

HCLA14/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.14 OF 2009

(ON APPEAL FROM LBTC 3235 OF 2006)

------------------------

BETWEEN

	HOOI SIEW FONG RACHEL (許淬淇)	Claimant (Appellant)
	and
	CATHAY PACIFIC AIRWAYS LIMITED	Defendant (Respondent)

------------------------

Before : Hon Poon J in Court

Date of Hearing : 13 August 2009

Date of Judgment : 13 August 2009

-----------------------

j u d g m e n t

-----------------------

Introduction

1.The claimant had been a cabin crew of the defendant since 7 November 1983. In the course of employment, she joined the Swire Group Retirement Benefits Scheme operated by the trustee of the Scheme. She tendered two letters of resignation dated 31 March 2006 and 6 April 2006 citing health as reasons for departure. Eventually, she left the defendant’s employment on 9 April 2006 and received a sum of HK$1,677,038.26 as termination benefits.

2.The claimant then commenced proceedings in the Labour Tribunal claiming for loss of retirement benefits under the Scheme and loss of salary, which was abandoned at the hearing on 23 October 2006.

3.After trial, the Presiding Officer dismissed her claim for loss of retirement benefits by order dated 7 July 2008. By further order dated 30 March 2009, the Presiding Officer dismissed the claimant’s application for review.

4.The claimant then applied for leave to appeal. On 22 May 2009, I gave leave to appeal on this ground only :

“The Presiding Officer had erred in law in failing to apprehend that the claimant’s claim is one based on constructive dismissal and to deal with her claim accordingly.”

Discussion

5.It can be hardly disputed that the claimant’s claim was in substance one based on constructive dismissal. As rightly observed by the Presiding Officer :

“6. The Claimant’s case was that she was forced to resign due to the use of a kind of spray by the name — Callington Fresh and Clean Spray — in the fleet of aircrafts which had seriously affected her health as a result of severe allergic problems. Since the problem was not attended to by the Company despite her protests, Claimant alleged she was forced to resign. It seems that the Claimant was alleging constructive dismissal though she did not use this term in particular.”

But the Presiding Officer went on to say :

“7. Had the Claimant’s case been one of constructive dismissal, she should have claimed for damages to be assessed rather than the present claim for ‘Loss of Retirement Benefits’. Also, Claimant has the burden of adducing evidence of proving constructive dismissal. Neither the Claimant had claimed for reliefs based upon constructive dismissal nor had she adduced any evidence on this issue.

8. Although I am aware that I have to discharge my statutory duty of investigation under Section 20(3) of the Labour Tribunal Ordinance, Cap. 25, upon any matter whether or not it has been raised by a party, I believe this could not be taken to mean that it is the Court’s role or duty to assist a party in formulating a claim or cause of action against the other party. In the present case, the Defendant in its Defence filed into Court back in September 2006 (almost 22 months ago) had already pointed out that it was unclear whether the Claimant’s case should form separate causes of action including reliefs due to Defendant’s failure to discharge its obligations under the Occupational Safety and Health Ordinance (OSHO) and constructive dismissal.

9. Furthermore, from checking the records of earlier hearings, Claimant had at one stage requested for time be given to her to consider her claims and seek advice from her friends who are lawyers. At the time of preparing these reasons, it is noted from the then Presiding Officer’s hand-written notes at the call-over hearing, Claimant was assisted by registered trade union representative and indicated that legal advice would be sought. Upon Claimant’s request and with Defendant’s consent, the claim was adjourned sine die with liberty to restore twice on 23 October 2006 and 10 December 2007. Furthermore, throughout the restored trial, the Claimant had not produced any medical expert to testify on her health condition being affected by the Spray nor had she brought forward any other solid evidence about the Spray to be the cause of her allergy. This brought me to believe it is the Claimant’s choice and indeed an informed decision to maintain her claim or cause of action for Loss of Retirement Benefits and not anything otherwise. In my view, it is not right for the Court to ignore its impartiality and dig into a cause of action of damages for constructive dismissal against the Defendant. In particular, ample time had been given to the Claimant.”

6.The Presiding Officer then proceeded to examine the claim for loss of retirement benefits. He basically treated it as a question of contractual entitlement under the Scheme. He then dismissed the claim.

7.Had the claimant based her claim for loss of retirement benefits solely on contractual entitlement, the Presiding Officer would have been entirely correct in dismissing it for the simple reason that only the trustee of the Scheme was liable. However, that was not how the claimant ran her case at trial. She pressed on with her complaint that she was forced to resign because of the defendant’s breach to deal with the spray, which caused her serious health problems. I fully accept that she might not have expressly pleaded constructive dismissal but the substance of the case was there.

8.Mr Chang, counsel for the defendant, referred me to the fact that at one of the call-over hearings, the defendant had raised the query with the claimant if she was suing for constructive dismissal. The claimant was then assisted by a union representative. The Presiding Officer asked the claimant to read the defence carefully and file a reply. At the hearing on 23 October 2006, the claimant said the she had obtained legal advice and decided to drop her claim for loss of salary. Mr Chang submitted that the Presiding Officer was entitled in the circumstances to conclude from the claimant’s conduct that she had made a conscientious decision not to sue for constructive dismissal.

9.However, this submission and the Presiding Officer’s observation ignore the fact that throughout the trial, the claimant did maintain her case that she was forced to resign because of the defendant’s failure to deal with her complaint on the spray.

10.Mr Chang further submitted that the Presiding Officer was not under a duty to re-formulate the claimant’s claim as one based on constructive dismissal lest he would have taken over the role as her advocate thereby losing his impartiality, which is clearly impermissible. See James Manuel Ho & another v Grand Pacific Vacation (Hong Kong) Ltd HCSA5/2004, unreported, 29 July 2005, Chung J at para. 14(f).

11.I fully accept the proposition that a presiding officer, in the course of investigation, should not step over the line and assume the role of an advocate and assist a party in formulating his claim. But that is not the case here. As noted, the substance of the case of constructive dismissal was all along right before the Presiding Officer. He did not need to formulate the claimant’s claim on her behalf. What he should have done is to grapple the substance of the complaint, identify it as the cause of the action and to deal with it accordingly. He should not have proceeded on the basis that it was a claim purely based on contractual entitlement under the Scheme.

12.For completeness, I would like to deal with the Presiding Officer’s observation that the claimant had not adduced any medical evidence to show that her health condition was affected by the spray. That is not entirely correct because the claimant had produced some medical certificates to that effect. Whether they are sufficient is quite another matter.

Conclusion

13.For the above reasons, I allow this appeal and remit the case back to the Labour Tribunal for a re-trial before another Presiding Officer.

(Submission on costs)

14.Costs should follow the event. I will order the defendant to pay the claimant costs assessed at HK$1,000.