HCLA9/2016 HUI KING FAI v. THE HONG KONG COUNCIL OF SOCIAL SERVICE - LawHero
HCLA9/2016
HUI KING FAI v. THE HONG KONG COUNCIL OF SOCIAL SERVICE
高等法院（勞資）Chung J24/8/2016
HCLA9/2016
A A
B HCLA 9/2016 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E LABOUR TRIBUNAL APPEAL NO 9 OF 2016 E
(ON APPEAL FROM LABOUR TRIBUNAL CLAIM
F F
NO 1718 OF 2015)
G ___________________ G
BETWEEN
H H
HUI KING FAI Claimant
I
(許勁暉) I
J and J
K K
THE HONG KONG COUNCIL OF Defendant
SOCIAL SERVICE
L L
(香港社會服務聯會)
M ___________________ M
N N
Before: Hon Chung J in Court
O O
Date of Hearing: 20 July 2016
P Date of Judgment: 25 August 2016 P
Q Q
________________
R JUDGMENT R
________________
S S
T T
U U
V V
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A A
B Introduction B
C 1. This is an appeal against an award of the Labour Tribunal C
(“the Tribunal”) dated 12 April 2016 whereby the Tribunal awarded
D D
$150,000 against the appellant (leave to appeal has been given in June
E 2016). It is resisted by the respondent. E
F F
2. The appellant is a federation of non-government social
G service agencies. The respondent was employed as its chief officer G
since July 2007. She was dismissed on 30 April 2015 with two months’
H H
wages in lieu of notice together with other payments.
I I
3. Her claim in the Tribunal was brought pursuant to Part VIA,
J J
Employment Ordinance (Cap 57) (Employment Protection). The
K Tribunal’s award was based on s 32P, Cap 57 (Award of compensation) K
which is one of the provisions in Part VIA thereof. This sum is the
L L
focus of this appeal.
M M
Background
N N
4. Although the appellant’s organizational hierarchy is not
O O
entirely clear, it appears that the respondent’s post was part of the top
P management team, having frequent and/or regular access to, and direct P
work contacts and/or relationship with, people such as its chairman,
Q Q
business director (the respondent’s direct supervisor), and director of
R human resources and administration. R
S S
5. The scope of the respondent’s duties can be found in the
T appellant’s offer letter dated 26 June 2007. In essence: T
U U
V V
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A A
B (a) she was to work with the international and regional B
networking team;
C C
(b) she would be a member of the senior management team;
D D
(c) her task was to assist her direct supervisor in strategic
E E
planning, resources allocation, and the promotion and
evaluation of strategic goals;
F F
(d) she would head the functional unit under her direct
G G
supervisor and be responsible for the said unit;
H H
(e) as the said unit head, she would provide expertise on (1)
I exchanges, and collaboration, with social welfare I
organizations in the Mainland, (2) managing, and sharing,
J regional and international information, knowledge and good J
practice, (3) organizing regional or international conferences,
K K
seminars and study visits, (4) monitoring the compliance
L with international conventions regarding social welfare and L
social development in Hong Kong;
M M
(f) she was to work with the appellant’s standing committee in
N formulating, implementing and reviewing business plans for N
the appellant’s strategic objectives;
O O
(g) she would establish and maintain an effective network with
P P
local and international strategic partners;
Q Q
(h) she would undertake any other assignments given by the
chief executive (or his representative).
R R
S 6. The complaints laid out in a complaint letter dated 18 S
November 2013 from the respondent to the appellant’s chairperson (“the
T T
U U
V V
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A A
B 2013 complaint letter”) may shed light on the deterioration in the B
employment relationship (the 2013 complaint letter bears a heading
C C
“Examples of Unlawful Discrimination and Victimization of Ms Fang,
D Mr Chua and Relevant Top Management from 2008 to Now”). Overall, D
the 2013 complaint letter referred to:
E E
(1) events giving rise to her complaints during the period from
F F
October 2008 to September 2010 (the Tribunal’s reasons for
G decision dated 29 April 2016 (“the Apr 2016 decision”) G
appears to regard this as the “first period”: para 25 thereof);
H H
(2) the settlement agreement of 14 September 2010 (“the 2010
I settlement”); I
J (3) events giving rise to her complaints during the period from J
September 2010 to November 2013 (which the Apr 2016
K K
decision described as the “second period”: para 27 thereof).
L L
7. The 2013 complaint letter is about 10 pages long. There is
M no need to set out the details for present purpose: M
N N
(a) during the “first period”, the respondent had been
discriminated against, bullied and victimized by her direct
O O
supervisor, and the other top management members ignored
P her above complaint; P
Q (b) further, the respondent was not given her annual salary Q
increment since April 2008 (until after the 2010 settlement);
R R
(c) during the “second period”, the respondent was further
S S
mistreated in that the 2010 settlement was not honoured (her
T
suggested improvements were not followed up; the interest T
U U
V V
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A A
B for her back pay was not paid), and that both the scope of B
work and manpower of her team were wrongly trimmed
C C
down as a result of the top management’s trickery and
D fabrication, unfairness, and victimization (or oppression) of D
the respondent.
E E
8. According to the Apr 2016 decision, the appellant’s
F F
chairman considered he should not handle the 2013 complaint letter
G himself. Consequently, an independent committee was set up to look G
into the complaints. In a report released on 1 April 2014, the
H H
independent committee concluded in effect that:
I I
(1) there was no breach of the 2010 settlement;
J J
(2) the respondent’s demand for interest on the back pay for her
K annual salary increment was not sufficiently justified; K
L (3) the complaint of continued discrimination and victimization L
was unfounded.
M M
(“the 2014 report”)
N N
O 9. The respondent lodged a claim at the Tribunal in 2014 to O
claim for the interest for the back pay for her annual salary increment
P P
(LBTC 856/2014). The Tribunal dismissed the claim in September
Q 2014 essentially on the ground that the claim was unfounded. The Q
respondent’s appeal to the High Court (HCLA 23/2014) and application
R R
for leave to appeal to the court of appeal (HCMP 387/2015) were
S dismissed. S
T T
U U
V V
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A A
B 10. The Apr 2016 decision also recorded that the respondent had B
made a report to the police against the appellant’s witnesses for perjury
C C
during the hearing of LBTC 856/2014.
D D
Issues in This Appeal
E E
11. The grounds put forth by the appellant in support of this
F F
appeal can be summarized as:
G G
(a) whether the Tribunal erred in concluding that s 72B(1),
H Cap 57 was applicable to the respondent’s claim; H
I (b) if the answer to sub-para (a) above is in the affirmative, I
whether the respondent was dismissed for a valid reason
J (s 32K, Cap 57); J
K (c) whether the appellant’s staff manual formed part of the K
respondent’s employment contract with the appellant.
L L
(para 8, appellant’s skeleton submissions)
M M
N 12. They will be discussed under the sub-headings below. For N
this purpose, it appears more convenient for para 11(b) and (c) above to
O O
be discussed together under the same sub-heading.
P P
(a) S 72B(1), Cap 57
Q Q
13. The relevant parts of s 72B(1), Cap 57 provide:
R R
“No employer shall terminate … the employment of, … any of
his employees by reason of the fact that the employee has –
S S
(a) given evidence, … in any proceeding for the
T enforcement of this Ordinance; T
U U
V V
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A A
B
(b) given information to a public officer in any inquiry B
made by such officer for the purposes of or in
connection with the enforcement of this
C Ordinance … ” (emphasis supplied). C
D D
14. It is undisputed the respondent has commenced LBTC
E 856/2014 in March 2014, and testified at the hearing thereof in August E
2014 (para 9 above).
F F
G 15. Further to s 72B, the relevant parts of s 32A(1), Cap 57 G
provides:
H H
“An employee may be granted remedies against his employer
under this Part-
I I
(c) where he is dismissed by the employer other than for
J a valid reason within the meaning of section 32K and J
in contravention of-
K (i) … 72B(1); …” (emphasis supplied). K
L And s 32A(5) provides: L
M “For the purposes of subsection (1)(c), an employee shall be M
entitled to remedies under this Part if and only if-
N (b) in relation to a dismissal in contravention of section N
72B(1), the employee has done any of the things
mentioned in that section within a period of 12
O O
months immediately preceding such dismissal by the
employer” (emphasis supplied).
P P
The plain language of s 32A(1)(c)(i) requires two things: the dismissal
Q Q
was (i) without a valid reason, and (ii) in contravention of s 72B(1).
R R
16. Finally, in relation to burden of proof, s 32A(4) stipulates in
S S
effect that, for the purpose of s 32A(1)(c):
T T
U U
V V
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A A
B (1) it is unnecessary for an employee to prove that the dismissal B
was by reason of the fact of his doing any of the things
C C
mentioned in s 72B(1);
D D
(2) an employee is taken to have been dismissed without a valid
E
reason unless a valid reason is shown for that dismissal E
(within the meaning of section 32K).
F F
17. As stated above, the respondent was dismissed in April 2015,
G G
and she testified before the Tribunal in August 2014. The dismissal
H therefore took place within the 12-month period provided for in H
s 32A(5)(b), Cap 57. Such being the case, in accordance with s 32A(4):
I I
J
(a) the respondent did not need to prove she was dismissed J
because she had given evidence before the Tribunal in
K August 2014 (s 32A(4)(a)(i)); K
L (b) the appellant had to prove that there was a valid reason for L
the dismissal.
M M
N 18. It appears that the Tribunal found that there has been a N
violation of s 72B(1): para 6, 10, 13 and 14, the Apr 2016 decision:
O O
“Violation of section 72B(1) alone would not entitle the
[respondent] for any award under 32N or 32P if the [appellant]
P P
could provide a valid reason for it” (I assume for present
purpose the last word “it” referred to the dismissal);
Q Q
“It is clear from the above provisions that … if [the respondent]
had [exercised any rights mentioned in 72B(1)] within 12
R months before she was dismissed, the [respondent] would be R
entitled to remedies unless a valid reason was shown by the
[appellant]”;
S S
“If [the respondent] had done any of the acts mentioned in
T section 72B(1) within 12 months immediately preceding such T
dismissal then she would be entitled to remedies, unless the
U U
V V
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A A
B
[appellant] could show that there was valid reason within 32K B
for the dismissal”;
C “As the [respondent] did indeed give evidence in connection of C
the enforcement of [Cap 57] within the 12 months before she
was …, the only issue now for the [Tribunal] to decide is
D whether the [appellant] had a valid reason to dismiss the D
[respondent]” (emphasis supplied).
E E
However, the said finding was made apparently before the Tribunal
F F
determined the factual issue of why the respondent was dismissed; that
G issue was set out in para 18 to 66 (in particular para 54 to 66 (under the G
heading “Analysis of the Evidence”)), the Apr 2016 decision.
H H
I 19. I am not entirely sure that is a correct way of approaching I
the matter for the following reasons.
J J
K 20. First, as stated above, two things are mentioned in s K
32A(1)(c)(i): (i) a dismissal for want of a valid reason, and (ii) a dismissal
L L
in contravention of s 72B(1). Theoretically, a dismissal may be caused
M by: M
N (1) both a contravention of s 72B(1) and other than for a valid N
reason;
O O
(2) a contravention of s 72B(1) but with a valid reason;
P P
(3) no contravention of s 72B(1) but other than for a valid
Q reason; Q
R (4) no contravention of s 72B(1) and with a valid reason. R
S (Although it would usually be difficult for an employer to persuade a S
tribunal of fact to accept sub-para (2) or (3) above as a matter of
T T
U U
V V
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A A
B credibility) An employee will be entitled to the remedies specified by B
ss 32N and/or 32P except where the dismissal falls within sub-para (4)
C C
above.
D D
21. Secondly, a contravention of s 72B(1) does not automatically,
E E
or even necessarily, follow from a dismissal even where the dismissed
F employee has done any of the things mentioned in s 72B(1) within the F
prescribed period. Although s 32A(4) obviates the need for the
G G
dismissed employee to show a causal connection between the two, such a
H connection is still required in order to establish the contravention. H
I I
22. With that in mind, one would expect that ordinarily a
J tribunal of fact would have to make a finding as to what in fact was the J
reason of a dismissal before it can properly determine if s 32A(5) has
K K
been engaged.
L L
23. Practically, however, where a tribunal of fact has found
M M
against an employer as regards whether the employee was dismissed with
N a valid reason, in most cases it would not be difficult for the tribunal to N
infer (and find as a fact) that there was such a causal connection (and
O O
hence a contravention of s 72B(1)).
P P
24. Considered in such light, even though the approach which
Q Q
the Tribunal appeared to have adopted is not entirely satisfactory, I will
R assume that the Tribunal has in fact so found despite para 18, 19 and 22 R
above.
S S
T T
U U
V V
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A A
B 25. The main complaint of the appellant in this regard is that the B
Tribunal erred in concluding that there was a contravention of s 72B(1).
C C
D 26. The only factual basis on which the Tribunal’s said D
conclusion rested is that the respondent has testified during the hearing of
E E
LBTC 856/2014: para 12 and 14, the Apr 2016 decision.
F F
27. The appellant argues that the Tribunal should not have so
G G
found because LBTC 856/2014 has been dismissed (and hence found by
H the Tribunal to have no substance). In essence, the appellant’s argument H
is that an unmeritorious claim does not constitute one of “the things
I I
mentioned in” s 72B(1).
J J
28. I do not accept this to be a valid argument. First, it is
K K
important that Part VIA, Cap 57 was intended for the protection of the
L employee: Thomas Vincent v South China Morning Post Publishers Ltd L
(2005) 8 HKCFAR 605, para 14 to 15 and 25. Secondly, the language
M M
and purport of some of the provisions in Part VIA shows that the ultimate
N outcome in some other proceedings should not in itself affect the N
protection afforded to an employee. An example of this can be found in
O O
s 32A(1)(c), Cap 57 (setting out several contraventions by an employer)
P the relevant part of which reads: P
“…whether or not the employer has been convicted of an
Q Q
offence in respect of the dismissal”.
R R
29. It may be that, where an employee has:
S S
(a) totally fabricated evidence and/or perjured himself in other
T (related) proceedings; or T
U U
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A A
B (b) given totally false information to a public officer; or B
C (c) done other acts of a similar nature (and severity), C
D in proceedings brought by the employee (who was then dismissed) D
relying on Part VIA, a tribunal of fact may nonetheless be satisfied that
E E
the dismissal was not by reason of a contravention of s 72B(1), but
F because the dismissed employee has committed an actionable wrong F
against the employer, and thus there is a valid reason for the dismissal.
G G
H 30. But there is no basis (let alone finding in the Apr 2016 H
decision) that such has taken place in LTBC 856/2014. What essentially
I I
was found by the courts therein was that there was insufficient legal basis
J to support the respondent’s claim for interest. J
K K
(b) S 32K (Valid Reason)
L L
31. Five categories of reason have been specified by s 32K, Cap
M 57 as constituting “valid reasons” for the purpose of Part VIA. The M
reason relevant to this appeal is any one or more of s 32K(a) (conduct), (c)
N N
(genuine operational requirements) and/or (e) (other reasons of substance):
O para 11, 20, 41 to 49 and 53, and 56 to 57, the Apr 2016 decision. The O
Tribunal summed up what it considered to be the gist of the appellant’s
P P
reason for the dismissal as follows:
Q Q
“… the [respondent] was a troublesome employee who
complained all the time, and as a result, too much time had
R been spent on dealing with her complaints; and also since she R
complained so much, it was obvious that she had lost her trust
in the management and thus lost the basis to cooperate. [The
S S
appellant’s CEO] said the [independent committee] was also of
the view that the [respondent’s] complaints were false and only
T intended to question the integrity of the top management of the T
[appellant]” (para 56, the Apr 2016 decision).
U U
V V
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A A
B 32. The Tribunal brushed aside the above reason as nothing B
more than:
C C
(1) complaints lodged by the respondent: para 57, 65 and 66, the
D D
Apr 2016 decision;
E E
(2) a difference in perception between the appellant and the
F respondent as to whether the events which caused the F
respondent to complain were evidence of her victimization:
G para 63, the Apr 2016 decision. G
H H
33. What the Tribunal considered as important matters which
I prevented the above from constituting a “valid reason” for the I
respondent’s dismissal were:
J J
(a) the respondent’s work ability had not been questioned, and
K K
she had in fact been given a “very effective” work appraisal
L by her direct supervisor: para 60, the Apr 2016 decision; L
M (b) the respondent’s complaints were discrete and had not M
affected her colleagues (which I assume refers to her peers
N N
and subordinates): para 52 and 61, the Apr 2016 decision;
O O
(c) a dismissal based on the respondent’s complaints was in
P
breach of section 6.6(1)(3), appellant’s staff manual (which P
the Tribunal found to have formed part of the employment
Q contract): para 64 and 65, the Apr 2016 decision. Q
R R
34. An employee’s work ability (para 33(a) above) would seem
S to fall within s 32K(b) (capability or qualifications). But, depending on S
the circumstances, it may have nothing to do with the employee’s conduct
T T
U U
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A A
B (s 32K(a)), genuine operational requirements (s 32K(c)) or other reasons B
of substance (s 32K(e)) (para 31 above).
C C
D 35. While it is true the respondent has lodged more than a few D
complaints, to say that her dismissal was caused by mere complaints is to
E E
overlook the real case put forth by the appellant (loss of trust and loss of
F basis for cooperation) (para 31 above). Although the appellant said that F
there was a loss of trust by the respondent, the testimony given by its
G G
witnesses also show:
H H
(1) difficulties with working with the respondent (the testimony
I of the appellant’s CEO and her direct supervisor): para 42 I
and 45, the Apr 2016 decision;
J J
(2) repeated attacks on the competence and/or integrity of some
K K
members of the top management (such as, the CEO had no
integrity, unfit to remain in office and should be dismissed,
L L
threats to set up another independent panel and/or to report
M to outside bodies such as the Equal Opportunities M
Commission and/or the media, if her complaints were not
N N
accepted): para 43, the Apr 2016 decision; para 8 to 10, the
O
2014 report. O
P In view of the nature of the above complaints, the testimony of the P
appellant’s witnesses to the effect:
Q Q
R
(a) the respondent was a troublesome employee who R
complained all the time;
S S
(b) too much time had to be spent on dealing with her
T complaints; T
U U
V V
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A A
B (c) the respondent was very difficult to talk to, and it would not B
be (operationally) effective if there was a need to talk
C C
carefully with her,
D D
should properly be understood as the respondent’s conduct having
E possibly caused: E
F (i) both sides to the employment contract losing trust and F
confidence in one another;
G G
(j) some members of the top management finding it very
H H
difficult (or even impossible (because personal attacks
I involving integrity have been made)) to work with the I
respondent;
J J
(ii) consequential operational inefficiency (or even disruption).
K K
L
This should be a matter falling within s 32K(a) and/or (c) and/or (e), L
Cap 57.
M M
N
36. In relation to para 35(i) above, that there is an implied N
contract term of mutual trust and confidence on the part of both
O O
contracting parties is trite law:
P P
(1) Semana Bachicha v Poon Shiu Man [2000] 2 HKLRD 833;
Q CACV 55/2000 (18 July 2000), para 39 to 47; Q
R (2) Malik v Bank of Credit and Commerce International SA R
[1998] AC 20, pp 35, 43 and 46.
S S
T T
U U
V V
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A A
B 37. Unfortunately, because the Tribunal has apparently brushed B
aside the above as nothing more than complaints by the respondent
C C
(para 32 above), none of the matters set out in para 35 above have been
D considered. D
E E
38. In this connection, it should be pointed out that there is a
F statutory duty to investigate on the Tribunal’s part: s 20(3), Labour F
Tribunal Ordinance (Cap 25); Hong Kong Civil Procedure 2016, Vol 2,
G G
para S1/20/1; Chan Suk Bing Angie v Harbour Phoenix Ltd & Another,
H HCLA46/1991 (21 September 1992); [1992] 2 HKC 459; Le Thi Bich H
Thuy Kitty v. Sheraton International (Hong Kong) Ltd trading as
I I
Sheraton Hong Kong Hotel & Towers, HCLA 34/2004 (4 June 2004); 謝
J 林 與 陳德偉, HCLA 150/1995 (5 March 1997); 王焯華 v Five Star J
K
Wine Ltd, HCLA 35/2001 (30 November 2001); 沈 慧 玉 v Ailec K
International (Hong Kong) Ltd, HCLA 122/2002 (4 July 2003); Tong
L L
Pun Chung v Top Express Engineering Ltd, HCLA 71/2002 (21 October
M 2002); Ng Ming v Cheung Wah Investment Co. Ltd, HCLA 10/2003 (13 M
June 2003); Siu Koon Fung v Shun Shing Construction & Engineering Co
N N
Ltd, HCLA 1/2002 (5 July 2002); James Manuel Ho And Another v
O Grand Pacific Vacation (Hong Kong) Ltd, HCSA 5/2004 (29 July 2005). O
P P
39. It is unclear if the Tribunal has accepted, or rejected, the
Q explanations given by one of the appellant’s witnesses (the respondent’s Q
direct supervisor) concerning 3 alleged instances of victimization of the
R R
respondent: para 63, the Apr 2016 decision (the witness explained that
S these were in fact not directed at victimizing the respondent). S
T T
U U
V V
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A A
B 40. Insofar as the Tribunal might have rejected the testimony of B
that witness, the Tribunal ought to have given reasons for doing so,
C C
bearing in mind the said testimony cannot be said to be:
D D
(a) inherently implausible;
E E
(b) materially inconsistent with the undisputed or indisputable
F evidence (in fact, it can be regarded as being supported by F
one of the conclusions of the 2014 report (it is inadequate for
G G
the Apr 2016 decision to say (without giving reasons for
saying so) the said report was not binding)).
H H
I (See, for example, Star Glory Investment Ltd v Kai Tuo (HK) Technology I
Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12; 林傳龍
J J
對 謝巧玩 HCA 1443/2011 (19 December 2014), para 15).
K K
L 41. Finally, in relation to para 33(c) (and para 11(c) above), L
whether the appellant’s staff manual formed part of the employment
M M
contract is a question of mixed law and fact; and hence a question for the
N Tribunal. N
O O
42. Assuming (but without deciding) section 6.6(1)(3),
P appellant’s staff manual was, as the Tribunal has found, part of the P
employment contract:
Q Q
(a) the provisions may well be mere policy statements of the
R R
appellant (concerning complaints by its member agencies,
S members of the public and its staff) and do not confer legally S
enforceable rights;
T T
U U
V V
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A A
B (b) in any event, any legally enforceable right to complain must B
imply an obligation not to abuse such right (here an analogy
C C
can perhaps be drawn with a citizen’s constitutional right of
D access to the courts: see, for example, the observations in Ng D
Yat Chi v Max Share Ltd And Another (2005) 8 HKCFAR 1
E (especially at para 5, 25, 48 and 52)). E
F None of these seem to have been considered by the Tribunal. F
G G
43. By reason of the above matters, I find that there has been
H misdirection(s) (or non-direction(s)) in the Apr 2016 decision. H
I I
44. For completeness, RHC Ord 55 r 7(7) has also been
J considered. It is probable that, if the Tribunal had properly directed J
itself regarding the matters set out in para 18 to 19 and 22, 35 and 37 to
K K
38, 39 to 40 and 42 above, the final conclusions reached in the Apr 2016
L decision might well be different. For this reason, I am satisfied that L
substantial wrong or miscarriage has thereby been occasioned.
M M
N Conclusion N
O 45. The matters set out in para 44 above over which the O
Tribunal’s erred when directing itself were matters of fact (or mixed law
P P
and fact). The High Court is not empowered to reverse or vary any
Q determination made by the tribunal on questions of fact: s 35(2)(b)(i), Q
Cap 25.
R R
S 46. In these circumstances, the discretion conferred by s 35(1), S
Cap 25 ought to be exercised to allow this appeal and remit the
T T
U U
V V
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A A
B respondent’s claim to the Tribunal for a new hearing before another B
presiding officer regarding the matters set out in para 44 above. For this
C C
reason, the challenged award must be set aside.
D D
Other Matters
E E
47. The parties’ written submissions also mentioned various
F F
other points. These have not been expressly set out or dealt with above.
G This is so only because of the need to balance between the length of the G
judgment and its comprehension. It does not mean those other points
H H
are thought to be irrelevant (or have been overlooked). To avoid doubt,
I those other points have also been considered. I
J J
K K
L L
(Andrew Chung)
M
Judge of the Court of First Instance M
High Court
N N
Mr Wilson Leung, instructed by Yu Sun Yau Mak & Lawyers (Free
O Legal Advice Scheme), for the claimant (respondent) O
P Mr Paul K N Wu, instructed by ONC Lawyers, for the defendant P
(appellant)
Q Q
R R
S S
T T
U U
V V
A A
B HCLA 9/2016 B
C IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E LABOUR TRIBUNAL APPEAL NO 9 OF 2016 E
(ON APPEAL FROM LABOUR TRIBUNAL CLAIM
F F
NO 1718 OF 2015)
G ___________________ G
BETWEEN
H H
HUI KING FAI Claimant
I
(許勁暉) I
J and J
K K
THE HONG KONG COUNCIL OF Defendant
SOCIAL SERVICE
L L
(香港社會服務聯會)
M ___________________ M
N N
Before: Hon Chung J in Court
O O
Date of Hearing: 20 July 2016
P Date of Judgment: 25 August 2016 P
Q Q
________________
R JUDGMENT R
________________
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A A
B Introduction B
C 1. This is an appeal against an award of the Labour Tribunal C
(“the Tribunal”) dated 12 April 2016 whereby the Tribunal awarded
D D
$150,000 against the appellant (leave to appeal has been given in June
E 2016). It is resisted by the respondent. E
F F
2. The appellant is a federation of non-government social
G service agencies. The respondent was employed as its chief officer G
since July 2007. She was dismissed on 30 April 2015 with two months’
H H
wages in lieu of notice together with other payments.
I I
3. Her claim in the Tribunal was brought pursuant to Part VIA,
J J
Employment Ordinance (Cap 57) (Employment Protection). The
K Tribunal’s award was based on s 32P, Cap 57 (Award of compensation) K
which is one of the provisions in Part VIA thereof. This sum is the
L L
focus of this appeal.
M M
Background
N N
4. Although the appellant’s organizational hierarchy is not
O O
entirely clear, it appears that the respondent’s post was part of the top
P management team, having frequent and/or regular access to, and direct P
work contacts and/or relationship with, people such as its chairman,
Q Q
business director (the respondent’s direct supervisor), and director of
R human resources and administration. R
S S
5. The scope of the respondent’s duties can be found in the
T appellant’s offer letter dated 26 June 2007. In essence: T
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A A
B (a) she was to work with the international and regional B
networking team;
C C
(b) she would be a member of the senior management team;
D D
(c) her task was to assist her direct supervisor in strategic
E E
planning, resources allocation, and the promotion and
evaluation of strategic goals;
F F
(d) she would head the functional unit under her direct
G G
supervisor and be responsible for the said unit;
H H
(e) as the said unit head, she would provide expertise on (1)
I exchanges, and collaboration, with social welfare I
organizations in the Mainland, (2) managing, and sharing,
J regional and international information, knowledge and good J
practice, (3) organizing regional or international conferences,
K K
seminars and study visits, (4) monitoring the compliance
L with international conventions regarding social welfare and L
social development in Hong Kong;
M M
(f) she was to work with the appellant’s standing committee in
N formulating, implementing and reviewing business plans for N
the appellant’s strategic objectives;
O O
(g) she would establish and maintain an effective network with
P P
local and international strategic partners;
Q Q
(h) she would undertake any other assignments given by the
chief executive (or his representative).
R R
S 6. The complaints laid out in a complaint letter dated 18 S
November 2013 from the respondent to the appellant’s chairperson (“the
T T
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A A
B 2013 complaint letter”) may shed light on the deterioration in the B
employment relationship (the 2013 complaint letter bears a heading
C C
“Examples of Unlawful Discrimination and Victimization of Ms Fang,
D Mr Chua and Relevant Top Management from 2008 to Now”). Overall, D
the 2013 complaint letter referred to:
E E
(1) events giving rise to her complaints during the period from
F F
October 2008 to September 2010 (the Tribunal’s reasons for
G decision dated 29 April 2016 (“the Apr 2016 decision”) G
appears to regard this as the “first period”: para 25 thereof);
H H
(2) the settlement agreement of 14 September 2010 (“the 2010
I settlement”); I
J (3) events giving rise to her complaints during the period from J
September 2010 to November 2013 (which the Apr 2016
K K
decision described as the “second period”: para 27 thereof).
L L
7. The 2013 complaint letter is about 10 pages long. There is
M no need to set out the details for present purpose: M
N N
(a) during the “first period”, the respondent had been
discriminated against, bullied and victimized by her direct
O O
supervisor, and the other top management members ignored
P her above complaint; P
Q (b) further, the respondent was not given her annual salary Q
increment since April 2008 (until after the 2010 settlement);
R R
(c) during the “second period”, the respondent was further
S S
mistreated in that the 2010 settlement was not honoured (her
T
suggested improvements were not followed up; the interest T
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A A
B for her back pay was not paid), and that both the scope of B
work and manpower of her team were wrongly trimmed
C C
down as a result of the top management’s trickery and
D fabrication, unfairness, and victimization (or oppression) of D
the respondent.
E E
8. According to the Apr 2016 decision, the appellant’s
F F
chairman considered he should not handle the 2013 complaint letter
G himself. Consequently, an independent committee was set up to look G
into the complaints. In a report released on 1 April 2014, the
H H
independent committee concluded in effect that:
I I
(1) there was no breach of the 2010 settlement;
J J
(2) the respondent’s demand for interest on the back pay for her
K annual salary increment was not sufficiently justified; K
L (3) the complaint of continued discrimination and victimization L
was unfounded.
M M
(“the 2014 report”)
N N
O 9. The respondent lodged a claim at the Tribunal in 2014 to O
claim for the interest for the back pay for her annual salary increment
P P
(LBTC 856/2014). The Tribunal dismissed the claim in September
Q 2014 essentially on the ground that the claim was unfounded. The Q
respondent’s appeal to the High Court (HCLA 23/2014) and application
R R
for leave to appeal to the court of appeal (HCMP 387/2015) were
S dismissed. S
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A A
B 10. The Apr 2016 decision also recorded that the respondent had B
made a report to the police against the appellant’s witnesses for perjury
C C
during the hearing of LBTC 856/2014.
D D
Issues in This Appeal
E E
11. The grounds put forth by the appellant in support of this
F F
appeal can be summarized as:
G G
(a) whether the Tribunal erred in concluding that s 72B(1),
H Cap 57 was applicable to the respondent’s claim; H
I (b) if the answer to sub-para (a) above is in the affirmative, I
whether the respondent was dismissed for a valid reason
J (s 32K, Cap 57); J
K (c) whether the appellant’s staff manual formed part of the K
respondent’s employment contract with the appellant.
L L
(para 8, appellant’s skeleton submissions)
M M
N 12. They will be discussed under the sub-headings below. For N
this purpose, it appears more convenient for para 11(b) and (c) above to
O O
be discussed together under the same sub-heading.
P P
(a) S 72B(1), Cap 57
Q Q
13. The relevant parts of s 72B(1), Cap 57 provide:
R R
“No employer shall terminate … the employment of, … any of
his employees by reason of the fact that the employee has –
S S
(a) given evidence, … in any proceeding for the
T enforcement of this Ordinance; T
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A A
B
(b) given information to a public officer in any inquiry B
made by such officer for the purposes of or in
connection with the enforcement of this
C Ordinance … ” (emphasis supplied). C
D D
14. It is undisputed the respondent has commenced LBTC
E 856/2014 in March 2014, and testified at the hearing thereof in August E
2014 (para 9 above).
F F
G 15. Further to s 72B, the relevant parts of s 32A(1), Cap 57 G
provides:
H H
“An employee may be granted remedies against his employer
under this Part-
I I
(c) where he is dismissed by the employer other than for
J a valid reason within the meaning of section 32K and J
in contravention of-
K (i) … 72B(1); …” (emphasis supplied). K
L And s 32A(5) provides: L
M “For the purposes of subsection (1)(c), an employee shall be M
entitled to remedies under this Part if and only if-
N (b) in relation to a dismissal in contravention of section N
72B(1), the employee has done any of the things
mentioned in that section within a period of 12
O O
months immediately preceding such dismissal by the
employer” (emphasis supplied).
P P
The plain language of s 32A(1)(c)(i) requires two things: the dismissal
Q Q
was (i) without a valid reason, and (ii) in contravention of s 72B(1).
R R
16. Finally, in relation to burden of proof, s 32A(4) stipulates in
S S
effect that, for the purpose of s 32A(1)(c):
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A A
B (1) it is unnecessary for an employee to prove that the dismissal B
was by reason of the fact of his doing any of the things
C C
mentioned in s 72B(1);
D D
(2) an employee is taken to have been dismissed without a valid
E
reason unless a valid reason is shown for that dismissal E
(within the meaning of section 32K).
F F
17. As stated above, the respondent was dismissed in April 2015,
G G
and she testified before the Tribunal in August 2014. The dismissal
H therefore took place within the 12-month period provided for in H
s 32A(5)(b), Cap 57. Such being the case, in accordance with s 32A(4):
I I
J
(a) the respondent did not need to prove she was dismissed J
because she had given evidence before the Tribunal in
K August 2014 (s 32A(4)(a)(i)); K
L (b) the appellant had to prove that there was a valid reason for L
the dismissal.
M M
N 18. It appears that the Tribunal found that there has been a N
violation of s 72B(1): para 6, 10, 13 and 14, the Apr 2016 decision:
O O
“Violation of section 72B(1) alone would not entitle the
[respondent] for any award under 32N or 32P if the [appellant]
P P
could provide a valid reason for it” (I assume for present
purpose the last word “it” referred to the dismissal);
Q Q
“It is clear from the above provisions that … if [the respondent]
had [exercised any rights mentioned in 72B(1)] within 12
R months before she was dismissed, the [respondent] would be R
entitled to remedies unless a valid reason was shown by the
[appellant]”;
S S
“If [the respondent] had done any of the acts mentioned in
T section 72B(1) within 12 months immediately preceding such T
dismissal then she would be entitled to remedies, unless the
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A A
B
[appellant] could show that there was valid reason within 32K B
for the dismissal”;
C “As the [respondent] did indeed give evidence in connection of C
the enforcement of [Cap 57] within the 12 months before she
was …, the only issue now for the [Tribunal] to decide is
D whether the [appellant] had a valid reason to dismiss the D
[respondent]” (emphasis supplied).
E E
However, the said finding was made apparently before the Tribunal
F F
determined the factual issue of why the respondent was dismissed; that
G issue was set out in para 18 to 66 (in particular para 54 to 66 (under the G
heading “Analysis of the Evidence”)), the Apr 2016 decision.
H H
I 19. I am not entirely sure that is a correct way of approaching I
the matter for the following reasons.
J J
K 20. First, as stated above, two things are mentioned in s K
32A(1)(c)(i): (i) a dismissal for want of a valid reason, and (ii) a dismissal
L L
in contravention of s 72B(1). Theoretically, a dismissal may be caused
M by: M
N (1) both a contravention of s 72B(1) and other than for a valid N
reason;
O O
(2) a contravention of s 72B(1) but with a valid reason;
P P
(3) no contravention of s 72B(1) but other than for a valid
Q reason; Q
R (4) no contravention of s 72B(1) and with a valid reason. R
S (Although it would usually be difficult for an employer to persuade a S
tribunal of fact to accept sub-para (2) or (3) above as a matter of
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A A
B credibility) An employee will be entitled to the remedies specified by B
ss 32N and/or 32P except where the dismissal falls within sub-para (4)
C C
above.
D D
21. Secondly, a contravention of s 72B(1) does not automatically,
E E
or even necessarily, follow from a dismissal even where the dismissed
F employee has done any of the things mentioned in s 72B(1) within the F
prescribed period. Although s 32A(4) obviates the need for the
G G
dismissed employee to show a causal connection between the two, such a
H connection is still required in order to establish the contravention. H
I I
22. With that in mind, one would expect that ordinarily a
J tribunal of fact would have to make a finding as to what in fact was the J
reason of a dismissal before it can properly determine if s 32A(5) has
K K
been engaged.
L L
23. Practically, however, where a tribunal of fact has found
M M
against an employer as regards whether the employee was dismissed with
N a valid reason, in most cases it would not be difficult for the tribunal to N
infer (and find as a fact) that there was such a causal connection (and
O O
hence a contravention of s 72B(1)).
P P
24. Considered in such light, even though the approach which
Q Q
the Tribunal appeared to have adopted is not entirely satisfactory, I will
R assume that the Tribunal has in fact so found despite para 18, 19 and 22 R
above.
S S
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A A
B 25. The main complaint of the appellant in this regard is that the B
Tribunal erred in concluding that there was a contravention of s 72B(1).
C C
D 26. The only factual basis on which the Tribunal’s said D
conclusion rested is that the respondent has testified during the hearing of
E E
LBTC 856/2014: para 12 and 14, the Apr 2016 decision.
F F
27. The appellant argues that the Tribunal should not have so
G G
found because LBTC 856/2014 has been dismissed (and hence found by
H the Tribunal to have no substance). In essence, the appellant’s argument H
is that an unmeritorious claim does not constitute one of “the things
I I
mentioned in” s 72B(1).
J J
28. I do not accept this to be a valid argument. First, it is
K K
important that Part VIA, Cap 57 was intended for the protection of the
L employee: Thomas Vincent v South China Morning Post Publishers Ltd L
(2005) 8 HKCFAR 605, para 14 to 15 and 25. Secondly, the language
M M
and purport of some of the provisions in Part VIA shows that the ultimate
N outcome in some other proceedings should not in itself affect the N
protection afforded to an employee. An example of this can be found in
O O
s 32A(1)(c), Cap 57 (setting out several contraventions by an employer)
P the relevant part of which reads: P
“…whether or not the employer has been convicted of an
Q Q
offence in respect of the dismissal”.
R R
29. It may be that, where an employee has:
S S
(a) totally fabricated evidence and/or perjured himself in other
T (related) proceedings; or T
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A A
B (b) given totally false information to a public officer; or B
C (c) done other acts of a similar nature (and severity), C
D in proceedings brought by the employee (who was then dismissed) D
relying on Part VIA, a tribunal of fact may nonetheless be satisfied that
E E
the dismissal was not by reason of a contravention of s 72B(1), but
F because the dismissed employee has committed an actionable wrong F
against the employer, and thus there is a valid reason for the dismissal.
G G
H 30. But there is no basis (let alone finding in the Apr 2016 H
decision) that such has taken place in LTBC 856/2014. What essentially
I I
was found by the courts therein was that there was insufficient legal basis
J to support the respondent’s claim for interest. J
K K
(b) S 32K (Valid Reason)
L L
31. Five categories of reason have been specified by s 32K, Cap
M 57 as constituting “valid reasons” for the purpose of Part VIA. The M
reason relevant to this appeal is any one or more of s 32K(a) (conduct), (c)
N N
(genuine operational requirements) and/or (e) (other reasons of substance):
O para 11, 20, 41 to 49 and 53, and 56 to 57, the Apr 2016 decision. The O
Tribunal summed up what it considered to be the gist of the appellant’s
P P
reason for the dismissal as follows:
Q Q
“… the [respondent] was a troublesome employee who
complained all the time, and as a result, too much time had
R been spent on dealing with her complaints; and also since she R
complained so much, it was obvious that she had lost her trust
in the management and thus lost the basis to cooperate. [The
S S
appellant’s CEO] said the [independent committee] was also of
the view that the [respondent’s] complaints were false and only
T intended to question the integrity of the top management of the T
[appellant]” (para 56, the Apr 2016 decision).
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A A
B 32. The Tribunal brushed aside the above reason as nothing B
more than:
C C
(1) complaints lodged by the respondent: para 57, 65 and 66, the
D D
Apr 2016 decision;
E E
(2) a difference in perception between the appellant and the
F respondent as to whether the events which caused the F
respondent to complain were evidence of her victimization:
G para 63, the Apr 2016 decision. G
H H
33. What the Tribunal considered as important matters which
I prevented the above from constituting a “valid reason” for the I
respondent’s dismissal were:
J J
(a) the respondent’s work ability had not been questioned, and
K K
she had in fact been given a “very effective” work appraisal
L by her direct supervisor: para 60, the Apr 2016 decision; L
M (b) the respondent’s complaints were discrete and had not M
affected her colleagues (which I assume refers to her peers
N N
and subordinates): para 52 and 61, the Apr 2016 decision;
O O
(c) a dismissal based on the respondent’s complaints was in
P
breach of section 6.6(1)(3), appellant’s staff manual (which P
the Tribunal found to have formed part of the employment
Q contract): para 64 and 65, the Apr 2016 decision. Q
R R
34. An employee’s work ability (para 33(a) above) would seem
S to fall within s 32K(b) (capability or qualifications). But, depending on S
the circumstances, it may have nothing to do with the employee’s conduct
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A A
B (s 32K(a)), genuine operational requirements (s 32K(c)) or other reasons B
of substance (s 32K(e)) (para 31 above).
C C
D 35. While it is true the respondent has lodged more than a few D
complaints, to say that her dismissal was caused by mere complaints is to
E E
overlook the real case put forth by the appellant (loss of trust and loss of
F basis for cooperation) (para 31 above). Although the appellant said that F
there was a loss of trust by the respondent, the testimony given by its
G G
witnesses also show:
H H
(1) difficulties with working with the respondent (the testimony
I of the appellant’s CEO and her direct supervisor): para 42 I
and 45, the Apr 2016 decision;
J J
(2) repeated attacks on the competence and/or integrity of some
K K
members of the top management (such as, the CEO had no
integrity, unfit to remain in office and should be dismissed,
L L
threats to set up another independent panel and/or to report
M to outside bodies such as the Equal Opportunities M
Commission and/or the media, if her complaints were not
N N
accepted): para 43, the Apr 2016 decision; para 8 to 10, the
O
2014 report. O
P In view of the nature of the above complaints, the testimony of the P
appellant’s witnesses to the effect:
Q Q
R
(a) the respondent was a troublesome employee who R
complained all the time;
S S
(b) too much time had to be spent on dealing with her
T complaints; T
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A A
B (c) the respondent was very difficult to talk to, and it would not B
be (operationally) effective if there was a need to talk
C C
carefully with her,
D D
should properly be understood as the respondent’s conduct having
E possibly caused: E
F (i) both sides to the employment contract losing trust and F
confidence in one another;
G G
(j) some members of the top management finding it very
H H
difficult (or even impossible (because personal attacks
I involving integrity have been made)) to work with the I
respondent;
J J
(ii) consequential operational inefficiency (or even disruption).
K K
L
This should be a matter falling within s 32K(a) and/or (c) and/or (e), L
Cap 57.
M M
N
36. In relation to para 35(i) above, that there is an implied N
contract term of mutual trust and confidence on the part of both
O O
contracting parties is trite law:
P P
(1) Semana Bachicha v Poon Shiu Man [2000] 2 HKLRD 833;
Q CACV 55/2000 (18 July 2000), para 39 to 47; Q
R (2) Malik v Bank of Credit and Commerce International SA R
[1998] AC 20, pp 35, 43 and 46.
S S
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A A
B 37. Unfortunately, because the Tribunal has apparently brushed B
aside the above as nothing more than complaints by the respondent
C C
(para 32 above), none of the matters set out in para 35 above have been
D considered. D
E E
38. In this connection, it should be pointed out that there is a
F statutory duty to investigate on the Tribunal’s part: s 20(3), Labour F
Tribunal Ordinance (Cap 25); Hong Kong Civil Procedure 2016, Vol 2,
G G
para S1/20/1; Chan Suk Bing Angie v Harbour Phoenix Ltd & Another,
H HCLA46/1991 (21 September 1992); [1992] 2 HKC 459; Le Thi Bich H
Thuy Kitty v. Sheraton International (Hong Kong) Ltd trading as
I I
Sheraton Hong Kong Hotel & Towers, HCLA 34/2004 (4 June 2004); 謝
J 林 與 陳德偉, HCLA 150/1995 (5 March 1997); 王焯華 v Five Star J
K
Wine Ltd, HCLA 35/2001 (30 November 2001); 沈 慧 玉 v Ailec K
International (Hong Kong) Ltd, HCLA 122/2002 (4 July 2003); Tong
L L
Pun Chung v Top Express Engineering Ltd, HCLA 71/2002 (21 October
M 2002); Ng Ming v Cheung Wah Investment Co. Ltd, HCLA 10/2003 (13 M
June 2003); Siu Koon Fung v Shun Shing Construction & Engineering Co
N N
Ltd, HCLA 1/2002 (5 July 2002); James Manuel Ho And Another v
O Grand Pacific Vacation (Hong Kong) Ltd, HCSA 5/2004 (29 July 2005). O
P P
39. It is unclear if the Tribunal has accepted, or rejected, the
Q explanations given by one of the appellant’s witnesses (the respondent’s Q
direct supervisor) concerning 3 alleged instances of victimization of the
R R
respondent: para 63, the Apr 2016 decision (the witness explained that
S these were in fact not directed at victimizing the respondent). S
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A A
B 40. Insofar as the Tribunal might have rejected the testimony of B
that witness, the Tribunal ought to have given reasons for doing so,
C C
bearing in mind the said testimony cannot be said to be:
D D
(a) inherently implausible;
E E
(b) materially inconsistent with the undisputed or indisputable
F evidence (in fact, it can be regarded as being supported by F
one of the conclusions of the 2014 report (it is inadequate for
G G
the Apr 2016 decision to say (without giving reasons for
saying so) the said report was not binding)).
H H
I (See, for example, Star Glory Investment Ltd v Kai Tuo (HK) Technology I
Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12; 林傳龍
J J
對 謝巧玩 HCA 1443/2011 (19 December 2014), para 15).
K K
L 41. Finally, in relation to para 33(c) (and para 11(c) above), L
whether the appellant’s staff manual formed part of the employment
M M
contract is a question of mixed law and fact; and hence a question for the
N Tribunal. N
O O
42. Assuming (but without deciding) section 6.6(1)(3),
P appellant’s staff manual was, as the Tribunal has found, part of the P
employment contract:
Q Q
(a) the provisions may well be mere policy statements of the
R R
appellant (concerning complaints by its member agencies,
S members of the public and its staff) and do not confer legally S
enforceable rights;
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A A
B (b) in any event, any legally enforceable right to complain must B
imply an obligation not to abuse such right (here an analogy
C C
can perhaps be drawn with a citizen’s constitutional right of
D access to the courts: see, for example, the observations in Ng D
Yat Chi v Max Share Ltd And Another (2005) 8 HKCFAR 1
E (especially at para 5, 25, 48 and 52)). E
F None of these seem to have been considered by the Tribunal. F
G G
43. By reason of the above matters, I find that there has been
H misdirection(s) (or non-direction(s)) in the Apr 2016 decision. H
I I
44. For completeness, RHC Ord 55 r 7(7) has also been
J considered. It is probable that, if the Tribunal had properly directed J
itself regarding the matters set out in para 18 to 19 and 22, 35 and 37 to
K K
38, 39 to 40 and 42 above, the final conclusions reached in the Apr 2016
L decision might well be different. For this reason, I am satisfied that L
substantial wrong or miscarriage has thereby been occasioned.
M M
N Conclusion N
O 45. The matters set out in para 44 above over which the O
Tribunal’s erred when directing itself were matters of fact (or mixed law
P P
and fact). The High Court is not empowered to reverse or vary any
Q determination made by the tribunal on questions of fact: s 35(2)(b)(i), Q
Cap 25.
R R
S 46. In these circumstances, the discretion conferred by s 35(1), S
Cap 25 ought to be exercised to allow this appeal and remit the
T T
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A A
B respondent’s claim to the Tribunal for a new hearing before another B
presiding officer regarding the matters set out in para 44 above. For this
C C
reason, the challenged award must be set aside.
D D
Other Matters
E E
47. The parties’ written submissions also mentioned various
F F
other points. These have not been expressly set out or dealt with above.
G This is so only because of the need to balance between the length of the G
judgment and its comprehension. It does not mean those other points
H H
are thought to be irrelevant (or have been overlooked). To avoid doubt,
I those other points have also been considered. I
J J
K K
L L
(Andrew Chung)
M
Judge of the Court of First Instance M
High Court
N N
Mr Wilson Leung, instructed by Yu Sun Yau Mak & Lawyers (Free
O Legal Advice Scheme), for the claimant (respondent) O
P Mr Paul K N Wu, instructed by ONC Lawyers, for the defendant P
(appellant)
Q Q
R R
S S
T T
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