Read the full judgment text of FACV 8/2011 on BabelCite. This Court of Final Appeal judgment was delivered on 23 February 2012 before Chief Justice Ma, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Anthony Mason NPJ.
Employment law – contract of employment – teacher at aided secondary school – termination of employment – construction of Conditions of Service read with Code of Aid for Secondary Schools (COA) and Employment Ordinance (Cap 57) – teacher commenced teaching in 1990 and received four warnings between 1995 and 1999 following unsuccessful promotion application – defendants' solicitors' letter of 20 July 2000 stated contract would not be renewed on 31 August 2000 and enclosed one month's salary in lieu of three months' notice – plaintiff transferred to FK-LMST School for 2000/2001 academic year after Education Department intervention – further complaints led to defendants' solicitors' letter of 13 July 2001 terminating employment with immediate effect with one month's salary in lieu of notice – first Labour Tribunal claim (for arrears of wages) settled in December 2002 – second claim transferred to Court of First Instance – whether the defendants could lawfully terminate the plaintiff's employment – whether clause 56(c) of the COA (three months' notice) is a self-standing provision – whether the one-year 'Period of Employment' clause permitted termination by effluxion of time – whether the Termination Clause in the Conditions of Service overrode the COA – whether Employment Ordinance s 5(2) and s 6(2)(a) applied so as to permit termination on one month's notice – and whether bringing the second claim constituted an abuse of process (Henderson v Henderson abuse) – held, the COA was expressly incorporated into the contract; the Termination Clause in the Conditions of Service was intended to repeat the COA's termination requirements under clause 54(c)(vii) and was to be read with clause 56 and Appendix 17 of the COA, not to override them – clause 56(c) was not self-standing but had to be read with clause 56(g) and Appendix 17, which required dismissal or termination (including non-renewal) for 'good and sufficient reasons' and compliance with the warning procedures – the 'Period of Employment' clause did not permit termination by effluxion of time so as to bypass Appendix 17 – the Employment Ordinance did not assist because the contract was evidenced in writing and made provision for termination – the defendants could only lawfully terminate by complying with Appendix 17 – on the abuse point, the defendants waited until trial itself to raise the Henderson v Henderson abuse point; given the extensive preparation already undertaken, it was far too late to mount a strike-out application, and the Court of Appeal was entitled to reverse the trial judge's finding of abuse on that ground alone – appeal allowed in part; matter remitted to the trial judge to determine (1) whether the contract of employment was lawfully terminated (i.e. whether clause 56(g) and Appendix 17 were complied with, including whether there was a summary dismissal), and (2) if there was wrongful termination, the assessment of damages – order nisi that defendants pay 75% of plaintiff's costs – observation that the COA is poorly drafted and that an overall review is desirable.
Legal issues: Lawful termination of teacher's contract of employment under the Code of Aid · Abuse of process (Henderson v Henderson abuse) in bringing second action
Outcome: Appeal allowed to the extent that the matter is remitted to the trial judge to determine, in the light of the judgment, (1) whether the contract of employment was lawfully terminated by the defendants (i.e. whether the requirements of clause 56(g) and Appendix 17 of the COA were complied with), and (2) if there was wrongful termination, the assessment of damages. The Court of Appeal's finding of wrongful termination was set aside as founded on an incorrect view of the construction of the COA, but the abuse of process finding was reversed in favour of the plaintiff.
Cited by 9 cases · Cites 1 case