Woo Kwok Ping v. The Incorporated Management Committee of Tsuen Wan Trade Association Primary School

HCA 1523/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1523 OF 2013

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REASONS FOR DECISION

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Introduction

1.This is the plaintiff’s application for an interlocutory injunction.  At the end of the inter partes hearing, I granted an injunction in the terms described in more details below.  The following are the reasons for the decision.

Background

2.Since about 1986, the plaintiff has been teaching at the school managed by the defendant (but only since its incorporation in 2007) (“the defendant’s school”).  She became the principal of the defendant’s school in 2009. But for the incident in July 2013 (see below), the plaintiff would be due for retirement on 31 August 2014 (a period of about 11 months between the hearing and that date).

3.During the period from August 2012 to 27 July 2013 (a period of just short of one year), quite a number of reminders/warnings were given by the defendant to the plaintiff.  In fact, on 27 July 2013, after sending 3 warning letters to the plaintiff, the defendant summarily dismissed her on the same day (although the dismissal letter has been included in the hearing bundles, no particular reference was made to its contents) (“the 27 Jul dismissal”).

4.Feeling aggrieved, the plaintiff commenced this action in August 2013, and took out an inter partes summons at the same time seeking interlocutory injunctive relief (see below for details) (“the said summons”).

The relief sought

5.By the time of the hearing of the said summons, the principal relief sought was to enjoin the defendant from acting upon the 27 Jul dismissal (described as the purported summary dismissal in the said summons) before the Permanent Secretary for Education (“the PS”) has withdrawn her approval (or has approved another principal) in accordance with s 55, Education Ordinance (Cap 279), its related regulations and/or the Code of Aid for Aided Schools (“the Code”).

6.The reason why the relief was so worded will become apparent in the paragraphs below.

Issues raised in this application

7.At least for the purpose of this application, the following are undisputed:

(a) the plaintiff was the principal of the defendant’s school immediately before the termination of her employment;

(b) the employment contract has its root in a written document dated 19 May 2007 (“the 2007 contract”).

Among the terms of the 2007 contract were:

(1) the terms set out therein could not contravene Cap 279 or its related regulations, the Code or the instructions given from time to time by the Secretary for Education/the PS (“Other Terms”);

(2) the plaintiff’s appointment date had to be confirmed according to the requirements of the Code (“Other Terms (1)”);

(3) the other terms had to accord with Cap 279 and the Employment Ordinance (Cap 57) (“Other Terms (2)”).

The parties also agreed that the Code formed part of the employment contract.

8.As can be expected, one of the main disputes between the parties is whether the summary dismissal was justifiable (as the defendant contends) or wrongful (as the plaintiff contends).  Despite the parties’ respective contention that the merits of their own case overwhelm those of the other party, I do not consider that such a dispute can properly be determined in the context of this application.  To do so would entail, so far as the facts are concerned, an examination of the witnesses’ credibility, in the light of the numerous contemporaneous documents spanning over a period of about one year (August 2012 to July 2013).

9.Further to the above, the plaintiff also contends that the defendant has not acted in accordance with s 55, Cap 279.  As will be explained below, this contention is relevant to the following issues:

(a) a serious question to be tried: Hong Kong Civil Procedure 2013, Vol 1, para 29/1/9 to 29/1/10 (citing American Cyanamid Co v Ethicon Ltd [1975] AC 396);

(b) adequacy of damages as a remedy;

(c) balance of convenience, or “balance of the risk of doing an injustice”: Hong Kong Civil Procedure 2013, Vol 1, para 29/1/13 (citing, among others, Music Advance Ltd v The Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041).

10.As regards the merits of the plaintiff’s claim, in view of the matters set out in para 8 and 9 above and para 11 below, this is clearly not a frivolous or vexatious claim; in other words, the claim involves a serious question which needs to be tried.

11.This is even more so when s 55, Cap 279 is also taken into account.  It provides that:

“The principal of a school shall hold office until—

(a) he ceases to be registered as a teacher, or to be permitted to teach as a permitted teacher in the school;

(b) he resigns;

(c) the Permanent Secretary withdraws his approval of the principal under section 56; or (Amended 3 of 2003 s.11)

(d) the Permanent Secretary approves another teacher of the school as the principal under section 57(2) (Amended 3 of 2003 s.11)” (emphasis supplied).

Because this application does not involve a cessation of registration or resignation, only paragraphs (c) and (d) of s 55 can be of relevance here.

12.As stated above, the defendant does not dispute the applicable provisions of Cap 279 formed part of the plaintiff’s employment contract.  It also does not dispute:

(1) the need for the PS to act in accordance with s 55, Cap 279 before the plaintiff’s office as principal could be brought to an end lawfully;

(2) the PS has not so acted (nor has the defendant requested the PS to do so).

13.In the context of this application, the issues set out in para 9(b) and (c) above are related.  Here the plaintiff relies on several English authorities:

(a) Robb v London Borough of Hammersmith & Fulham [1991] IRLR 72;

(b) Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2006] IRLR 100.

These cases have been summed up in Chitty on Contracts (2012) 31^st Ed:

“… An injunction to restrain dismissal can also be issued in respect of a period during which no services are to be rendered under the contract. Thus where an employee had been suspended on full pay while disciplinary proceedings against him were in progress, it was held that the employers could be restrained from dismissing him before the disciplinary proceedings had run their full course; and they could, a fortiori, be so restrained if they had purported to dismiss the employee without any recourse to the disciplinary procedure which governed the employment relationship” (para 27-023, text to nn 123 and 124).

14.At the risk of over-simplifying the matter, both of the above authorities involved dismissals where the contract provided for a relative elaborate disciplinary procedure (such as the setting up of an independent investigating committee (the Robb decision), or an investigating panel (the Hinchingbrooke decision)).  One of the reasons for granting the injunction was to ensure the employee’s entitlement to such procedure.  Thus, the court said in the Robb decision:

“Although damages would be an adequate remedy for the defendant’s breach of contract in summarily dismissing the plaintiff and he would be entitled to damages representing not only loss of salary during the three-month notice and a time extended for the probable length of the [disciplinary] procedure to completion, damages would not be an adequate remedy for the manner of his unlawful dismissal and his deprivation of the [disciplinary]procedure” (emphasis supplied).

15.No formal disciplinary procedure has been laid down in the present employment contract.  However, I agree with the plaintiff that, in view of s 55, Cap 279, it is appropriate to grant an injunction because, similar to the observation in the Robb decision, damages would not be an adequate remedy for the deprivation of the security of tenure apparently afforded by that provision.

16.In so concluding, I have taken into account the following:

(1) the plaintiff expressly accepted she was not seeking reinstatement of her post (and the injunction is not intended to have that effect);

(2) the defendant has not informed the PS of the plaintiff’s summary dismissal (nor has it ascertained from the PS whether the PS would act in accordance with s 55, Cap 279);

(3) the defendant has not given an undertaking not to act upon the summary dismissal before the PS has acted in accordance with s 55, Cap 279;

(4) if an injunction order in the terms sought by the plaintiff is granted, it is unlikely substantial difficulties would be caused to the defendant regarding the daily administration and affairs of the defendant’s school.  For example, the plaintiff does not object to, and the defendant can (if necessary), appoint an acting principal in the meantime (the plaintiff herself has been an acting principal from 2007 to 2009).

Terms of the injunction

17.It was for the above purpose that an injunction order was made in the following terms:

“An injunction until:

(1) judgment in the action;

(2) the Permanent Secretary for Education has acted in accordance with s 55 – s 57 of the Education Ordinance, Cap. 279;

(3) further order,

(whichever is the earliest) to restrain the Defendant, their servants or agents or otherwise from acting upon the purported dismissal of 27th July 2013 of the Plaintiff from the post of Principal before the Permanent Secretary for Education has withdrawn her approval (or has approved another Principal) in accordance with s.55 – s.57 of the Education Ordinance, Cap. 279”.

The order expressly states that neither the PS nor the defendant is restrained from otherwise acting in accordance with Cap 279 and/or the Code.

Other matters

18.The parties’ closing submissions also mentioned various other points.  These have not been expressly set out or dealt with in the above headings and sub-headings.  This is so only because of the need to balance between the length of the reasons for decision and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Ms Linda S H Wong, instructed by Ho Tse Wai, Philip Li & Partners, for the plaintiff

Mr Johnny C M So, instructed by Li, Wong, Lam & W I Cheung, for the defendant