PAK WANG KWAN v. ASSOCIATED TOURIST COACH LTD.

bjbjU HCLA7/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE LABOUR TRIBUNAL APPEAL NO.7 OF 2001 (ON APPEAL FROM CLAIM NO.LBTC 2747 OF 2000) ------------------------ BETWEEN PAK WANG KWAN Claimant (Respondent) and ASSOCIATED TOURIST COACH LIMITED Defendant (Appellant) ------------------------ Before : Deputy High Court Judge Poon in Court Dates of Hearing : 7 and 10 September 2001 Date of Handing Down Judgment : 30 November 2001 ------------------------ J U D G M E N T ------------------------ Preliminary 1. The claimant had been working as a driver for the defendant since 5 June 1994 but was summarily dismissed on 17 February 2000. Aggrieved, he commenced proceedings in the Labour Tribunal on 7 April 2000, claiming against the defendant for four items, namely, wages in lieu of notice of $12,840, annual leave pay of $2,140, severance pay of $48,850 and long service pay in the same amount as severance pay. The claim for severance pay was subsequently dropped at the first hearing on 5 2000 ( the first hearing ). The trial eventually took place on 23 and 24 October 2000. On 31 October 2000, after trial, the deputy presiding officer entered judgment for the claimant in the total sum of $63,830 on the three remaining items. The defendant now appeals. 2. Both the proceedings below and the hearing before me were conducted in Chinese. But I find it more convenient to use English to write this judgment because English had been used quite considerably throughout. The deputy presiding officer gave her written reasons for decision dated 5 March 2001 in English. The grounds of appeal are also set out in English. Some of the authorities relied on by the parties are either English cases or local cases reported in English. And some of the documentary exhibits are in English as well. I will summarise the evidence in English and will only quote them in Chinese as and when necessary. 3. The parties respective case at trial may be summarised as follows. I will first set out the defendant s case, the burden being on it to justify the summary dismissal. The defendant s case 4. The defendant first complained that on 15 February 2000, the claimant did not make himself available for further assignment after finishing the initial one. According to Mr Yeung, the defendant s manager who represented defendant at the proceedings below, he called the claimant probably at his mobile phone at about 4 p.m. that day but could not get through. He asked his colleagues to try to contact him again. Apparently, the defendant could not be contacted. It is the defendant s contention that the claimant deliberately switched off his mobile phone so as to avoid taking further assignment for the day. Secondly, on the very same day, in breach of the defendant s regulations, the claimant did not call the defendant to collect job assignment for the following day, that is, 16 February 2000, despite various attempts to contact him. According to DW2, a part-time employee who was responsible for despatching job assignments to drivers at night for the following day, he called the claimant several times but could not get in touch of him. Later at about 11 p.m. that night, he called the claimant at his home. He was not there. DW2 told his wife to ask the claimant to return call when he came back. He did not. Thirdly, on 16 February, he did not contact the defendant or show up at office. Fourthly, on 17 February, when he was asked to explain on the above matters, he behaved badly. He showed no sign of repentance, raised his voice and even banged on the table. He was then summarily dismissed. The claimant s case 5. The claimant denied that he avoided taking further assignment on 15 February. After finishing his initial assignment, he went back to the car park and waited for further instructions at about 5 p.m. As he received no further instructions, he left for home at about 6 p.m. He arrived at home sometime after 6 p.m. He stayed at home for the rest of the night but received no call from the defendant. In accordance with past practice, if no assignment was given, he would have a day off for the following day. He was not required to call the defendant to collect job assignment for the following day. It was the defendant who called the drivers to give job assignments. He therefore did not return to work on 16 February. That night, he received a call at home from the defendant. He was asked to go to the office the following day, which he did. At that meeting on 17 February, Mr Yeung asked him why he had not called to collect the job assignment for 16 February. His explanation was not accepted. Mr Yeung then asked him to admit that he had committed a mistake. He refused. He was then dismissed summarily. He denied that he had behaved badly as alleged. Wages 6. The parties also disputed about the calculation of wages. In brief, the claimant said that the wages for his last working month was $12,840, consisting of basic salary of $2,800, car subsidy and order money of $8,040, overtime and special allowance of $1,500 and safety award of $500. Included in car subsidy was an item taxi of $305. The defendant agreed on these items only : basic salary of $2,800, overtime allowance of $900, special allowance of $600 and safety allowance of $1,000. Car subsidy and order money were disputed. Findings by the deputy presiding officer 7. The deputy presiding officer first found that the claimant did not avoid taking further assignment on 15 February 2000 as alleged. It is clear from how this appeal was argued that the defendant did not seek to disturb her findings in this regard. 8. The deputy presiding officer found no reason why the claimant would deliberately not return call to the defendant to take up assignment save [Mr Yeung s] vague suggestion to the claimant that he was tired so he wanted to rest which suggestion was not accepted by the claimant. She rejected DW2 s evidence that he had called the claimant many times and left a message with his wife that night. She also rejected the defendant s contention that the claimant was under a duty to call the defendant to collect the job assignment for the following day. Under the defendant s regulations, a driver was responsible for collection, collation and preparation of duties assigned in advance or otherwise . The deputy presiding officer dealt with the regulations in this way. She first noticed that the regulations were in English and the claimant did not read English. She then pointed out that Mr Yeung explained the inconsistency in the witness statement by referring to the standard of English of himself and his colleagues. But the defendant now sought to rely on the regulations against the claimant who did not read English. In any event, she found that the regulation had been varied by actual practice. She was referring partly to the evidence of DW2 in this respect. DW2 said in essence that some drivers would call back on their own motion to collect job assignments. Some he had to call them. If they were not available there and then, he would leave message, asking them to call back. When the drivers called (whether on own motion or in response to his message), job assignments would be given to them. If no assignment was to be given for the following day, the driver would also be informed of the same. If a driver did not call that night, DW2 would have to report the matter to Mr Yeung and call other drivers to take up the assignment. He said serious problems arose if a driver did not call back. If a driver was given leave on the following day, DW2 would not call him. DW2 disagreed with the suggestion of Mr Yeung that he would only call the driver if he did not call by 11 p.m. He was not aware of the defendant s regulation that if a driver did not call to collect job assignment, he committed a serious mistake. 9. The deputy presiding officer failed to see why the claimant should be considered having behaved badly on 17 February 2000. He was asked to admit a mistake that he had denied. He needed not repent. Even if he did raise his voice and bang on the table, it was after he was summarily dismissed. Grounds of appeal 10. The defendant raised a number of grounds of appeal. On liability, the defendant in essence complained, inter alia, that the presiding officer erred in law in failing to find that the defendant was entitled to dismiss the claimant summarily because he had misconducted himself by not reporting to the defendant on 15 February to collect job assignment for the 16 February; and by absenting from work without leave on 16 February. The defendant also complained that the presiding officer had failed to give any or any sufficient consideration that it was either an express or implied term of the employment contract that the claimant should contact the defendant to collect job assignment for following day. On quantum, the defendant complained that the presiding officer had failed to investigate into the nature of each of the categories of payment the claimant received in relation to his employment. Central issues 11. In my view, the first issue on liability is whether the claimant was required under his employment contract to contact the defendant on 15 February to collect job assignment for 16 February. The defendant s regulations, signed by the claimant to indicate his acknowledgment, expressly provided that the claimant was responsible, inter alia, for collecting duties assigned in advance. If incorporated as part of the employment contract, the regulations supported the defendant s contention and Mr Yeung s evidence that drivers were required to contact the defendant to collect job assignment for the following day. There is nothing to suggest that the claimant denied that the regulations had not been so incorporated. The way the deputy presiding officer dealt with the regulations was, with respect, unsatisfactory. She seemed to have suggested that because of the parties English standard, the regulations were either not binding or no reliance could be placed on them. This is clearly wrong. Further, she relied on the evidence of DW2 and the claimant in coming to her conclusion that the regulations had been varied by subsequent course of dealings. She ruled in effect that under the then prevailing practice, the claimant was not under a duty to contact the defendant for job assignment for the following day. But did their evidence necessarily support her ruling? According to DW2, some drivers did call back to collect job assignments. Further, although DW2 had to and did call those drivers who did call on their motion, informing them of the job assignment for the following day, there were occasions when drivers could not be contacted right away. Messages would then be left asking them to return call. A driver in such circumstances was clearly expected to return call. If he did not, DW2 regarded that as a serious matter as it adversely affected job arrangements. DW2 needed to call again and made alternative arrangement to replace him if at the end, he could not be contacted or he did not return call. Upon cross examination, the claimant himself admitted that he was a little bit negligent in not calling back on 15 February although he went on to say that it did not amount to serious misconduct because the defendant did not in the past strictly enforce the regulation that drivers had to call to collect job assignments. It is questionable if in light of such evidence, the deputy presiding officer was entitled to conclude that the so-called practice had varied the regulations in this respect. 12. The next issue on liability is whether the claimant was entitled to assume that in the absence of job assignments being given to him on 15 February, he could take a off on 16 February without any prior approval. The deputy presiding officer did not deal with this issue expressly. It would appear that she must have accepted the claimant was entitled to make such an assumption. According to DW2, he did not need to call a driver who had been given leave on the following day. But if a driver was not given leave on the following day, he still needed to call him even if no assignment was to be given to him. The deputy presiding officer did not reject this part of DW2 s evidence. This part of DW2 s evidence is arguably inconsistent with the claimant s assumption. For if the claimant were correct, then DW2 did not need to call those drivers who were not given any assignment for the following day to inform them of the position. They would know that when they did not receive any call, they would have a day off on the following day. Absence from work without reason on 16 February 2000 may justify a summary dismissal. As the deputy presiding officer did not expressly deal with this issue, it is not clear on what factual or legal basis that she thought that the claimant was entitled to make the assumption and to act upon it. Failure to investigate 13. The way the deputy presiding officer dealt with the disputes concerning the wages was also unsatisfactory. She herself did not conduct any investigation with the parties. She merely referred to the preliminary enquiry made by another deputy presiding officer at a previous hearing in this respect. But the parties were not asked to confirm what had been said on that occasion or to clarify or supplement the matters further. She said the defendant had not adduced any evidence why car subsidy and order money were not part of the wages and raised no argument to counter their inclusion as part of the wages. The defendant might not have adduced further documentary evidence. But its witnesses were simply not asked why they considered car subsidy and order money were not part of the wages. Referring to the item taxi of $305 included in car subsidy by the claimant, the deputy presiding officer said that there was nothing before her from the defendant on the true nature of this payment or to dispute it and since the amount was relatively negligible, she did not conduct any investigation on this item. She went on to say that she would re-evaluate the item and if appropriate to vary the award accordingly. With respect, her approach to the matter was wrong. She should have made enquiry with both parties on the true nature of this item. Before being so satisfied, she could not include this item as part of the wages. She could not defer the investigation simply because the amount involved was relatively minor. Conclusion 14. For the above reasons, the deputy presiding officer erred in concluding that there was no justification for summary dismissal. The two central issues discussed above in paragraphs 11 and 12 entail further investigation on the relevant matters and fuller consideration of the evidence. Further and in any event, in the absence of proper investigation into the nature of the various payments in dispute, the award cannot stand. In the circumstances, I will set aside her award and order that the case be remitted back to the Labour Tribunal for a rehearing before another presiding officer. The defendant will have the costs of this appeal. The claimant s own costs to be taxed in accordance with the legal aid regulations. 15. This concludes the appeal. However, there remains a particular matter that I must mention. At the first hearing, in response to enquiry made by the presiding officer, the claimant presented his case in this way. His next rest day fell on 17 February. On 15 February, a Leung of the defendant called him and suggested to cancel the rest day. The claimant asked for a substitute rest day if the rest day on 17 February were to be cancelled. He wanted to take a rest because he was under stress lately. After finishing work, he waited for instructions until 5:30 p.m. He then got off work but he returned home very late that night. He knew that the defendant had called him at about 4 p.m. in the afternoon by reading the call-identity information recorded by his phone at home. But the defendant did not call again. He then thought that the rest day on the 17 February had been cancelled and substituted by 16 February. What he said at the first hearing in certain respects did not exactly tally with his evidence at trial. It may have a bearing on his credibility. But it is apparent that what the claimant said at the first hearing was not made known to the deputy presiding officer subsequently at trial. In the course of submissions before me, it had been argued that the deputy presiding officer s findings were not supported by what the claimant said at the first hearing or that the she had failed to take into account of what he said there. In light of my reasoning, I do not find it necessary to deal with these submissions in order to determine this appeal. I would only add this. In my view, the claimant s remarks made at the first hearing ought to have been made known to the deputy presiding officer. But unless the presiding officer who handled the first hearing had made notes of the remarks, it would be unrealistic to expect the deputy presiding officer to be aware of them without any assistance from the parties. (There is no indication that the transcripts of proceedings for the first hearing were then available at trial. It is more likely than not that they were not available because transcripts are usually prepared for the purpose of appeal.) It is therefore wrong to say that she had failed to take into account those remarks. The defendant s representative who was present at the first hearing should draw the attention of the deputy presiding officer to those remarks for her to determine whether any investigation on the matter should be done, including clarification with the claimant or preparation of the requisite transcripts. ( J. Poon ) Deputy High Court Judge Mr Derry Wong, instructed by Messrs Clarke & Kong, assigned by DLA, for the Respondent Ms Rachel Cheung, instructed by Messrs James P.Y. Lam & Co., for the Appellant - PAGE - "@AB HHzbr Zk_UR %i?l ZorB r7Fv, 2wx^ %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l %i?l r7Fv r7Fv r7Fv r7Fv r7Fv r7Fv Zk_U Zk_U Zk_U Zk_U Zk_U Zk_U Zk_U Zk_U Zk_U Zk_U Zk_U & 6" HCMA23/2001 Normal.dot Sharon LY Shum Microsoft Word 9.0 HCMA23/2001 Title Microsoft Word Document MSWordDoc Word.Document.8