CHAN MUK-WING v. YEN SHENG FACTORY LTD

bjbj DCMP000011/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION LABOUR TRIBUNAL APPEAL NO. 11 OF 1980 ----------------- Between CHAN Muk-wing Appellant (Claimant) Yen Sheng Factory Limited Respondent (Defendant) ----------------- Coram: His Honour Judge Downey Date of Judgment: 3rd December, 1980 ----------------- JUDGMENT ----------------- Pursuant to leave granted on the 14th July 1980, the appellant appealed against the dismissal of his claims for wages in lieu of notice and severance pay. I am greatly indebted to Mr. Wong and Mr. Ramanathan for their very clear and helpful submissions in this appeal. Their tasks and mine have been made more difficult by the manner in which the learned presiding officer of the Labour Tribunal expressed his decision, and the fact that his original determination, delivered on the 4th January, 1980, has been amended several times between the 4th January 1980 and the 14th July 1980. The material parts of his final decision as it appears in the certified "record" of the proceedings prepared for this appeal, read as follows:- " I reject the claimant's evidence that the defendant without reason dismissed him on 11.6.79. I accept the defendant statements that the claimant left the service of his own accord on 9.6.79. I find on facts that the defendant company dismissed the claimant for good cause under section 9(a)(i),(ii) and (iv) on 11.6.79 (see Exh.D3)." In the course of his original submissions, aimed at showing that there was no evidence to support any of the presiding officer's findings, Mr. Wong adverted to various criticisms of the presiding officer's handling of the matter and, in particular, his failure to explain the obvious contradiction in his decision between the apparent finding that the appellant left the service of his own accord on the 9th June 1979 and his being dismissed by the respondent two days later. Whilst recognising the difficulties created by the form of the presiding officer's decision, as it was expressed in the "record" prepared for this appeal, Mr. Ramanathan put forward superficially plausible explanations for the patent contradiction on the part of the presiding officer. For reasons which will emerge later in this judgment, I am unable to accept Mr. Ramanathan's explanations. Furthermore, as I have come to the conclusion that this matter should be remitted to the Labour Tribunal with a direction for a new hearing, I do not think that it would be wise to embark upon a detailed consideration of the merits of the case or the very able and helpful submissions I have received from the parties' advocates. In the course of considering Mr. Ramanathan's submissions on the patent contradiction in the presiding officer's decision, I had occasion to study more closely, for the first time, all the documents on the various files before me in connection with this appeal. This scrutiny of documents, which were not available to the parties to this appeal, revealed, in my view, a somewhat disturbing state of affairs. It was obvious that the presiding officer had made several amendments or alterations to his original decision. There are indications that these amendments were made after the appellant had indicated that he was seriously considering an appeal. Indeed, it would seem that the final version of the "record" was not brought into existence until the appellant had filed notice of his application for leave to appeal. When they were, in fact, made cannot be determined with precision, but it is, in my view, abundantly clear that the first amendments were made after the typist had prepared the first draft of the presiding officer's record on the basis of his handwritten note made on the 4th January 1980. It is not necessary to set out, in detail, the various versions of the "record" which appear in the Court's files. It is, in my view, sufficient to compare the final version, as set out at the beginning of this judgment, with the corresponding parts of the first version of the presiding officer's decision, which read as follows:- " I reject the claimant's evidence that the deft. dismissed him on 11/6/79. I accept the deft. statement that the claimant left the service of his own accord on 11/6/79. I find on facts that the deft. Co. did not dismiss the claimant." Having discovered these facts, I brought them to the attention of the parties' lawyers and invited them to make further submissions on what should be done. Mr. Wong sought to rely on a further ground of appeal, namely that the presiding officer had no jurisdiction to alter his original decision at all, or after the period mentioned in section 22(3) of cap. 25 had expired, and re-iterated his earlier submission that the claim should be remitted for a re-hearing. Mr. Ramanathan contended that the alterations were not made without jurisdiction. The ultimate decision of the presiding officer (to dismiss the disputed claims of the appellant) remained the same; only the reasons for doing so had changed, and the presiding officer was free to change his reasons. In any event, he further submitted that the ultimate award or order would have been the same, whichever version of the presiding officer's decisions I accepted. There is considerable force in Mr. Ramanathan's submissions. But, with respect, I think that they tend to overlook the fact that, in this case, the presiding officer has, subsequent to his determination of the claim, moved through the broad spectrum of possible ways of terminating the relationship of employer and employee, i.e. from resignation or repudiatory breach by the employee to lawful dismissal by the employer. With the utmost respect to the learned presiding officer, and recognising that the legislature has deprived him of the very valuable assistance from counsel, such as I have been fortunate to receive, I consider that by embarking upon this exercise, he has created a situation which would lead any appellate tribunal to entertain serious misgivings as to whether he has properly addressed his mind to the evidence before him and the real issues of the case, or carried out his statutory duty to investigate all relevant matters (of S.20(3) of cap.25), or, in general, come to a determination which satisfies it that justice has been done to both parties. Nevertheless, it is not, in my view, sufficient for me to be able to say, even with confidence, that a serious miscarriage of justice has occurred. I consider that, before I can properly exercise any of the powers conferred upon me by section 35 of cap.25, I must be satisfied that the appeal is properly grounded, in the sense that the award, order or determination of the tribunal is erroneous in point of law or outside the jurisdiction of the tribunal. (of section 32(1) of cap. 25; Weinbaum v Klein [1950] 1 All ER 353, 354) In my judgment, the Labour Tribunal Ordinance (cap.25) makes a clear distinction between the presiding officer's determination of the claim and his award or order. (see sections 22(1) and 32(1) of cap.25.) The time limit of 14 days imposed by section 22(3) strictly applies only to reducing an oral award or order to writing. Section 22(1) requires the presiding officer to deliver his determination "as soon as possible after the conclusion of the hearing of the claim." Whether he does so orally or in writing, it seems to me that he must do so before he makes his award or order. In my view, the question is not within what period can the presiding officer alter or amend his determination, but whether he can alter his determination at all. Jurisdiction to do so is clearly conferred by the wide powers of review conferred by section 31 of cap.25. But, these powers were not exercised in this case. I doubt whether this provision, or the general intendment of the statute, is effective to withdraw from the tribunal the power or discretion of any judicial body to correct errors or clarify ambiguities in its original judgment or determination, by giving expression to its second or further thoughts. (cf. Lowery v Walker [1911] AC10; Higginson v Blackwell Colliery Co (1915) 84 LJKB 1189.) However, I do not think that these powers can be exercised after a party has given clear notice of an intention to appeal to a higher tribunal, as in this case. In any event, I consider that the amendments made by the presiding officer in this case went far beyond the boundaries of this general power or discretion. Accordingly, I conclude that the presiding officer did not have jurisdiction to alter his original decision in the manner or to the extent he has attempted in this case. Having reached this conclusion, I must next determine whether I am entitled to interfere with the original decision of the presiding officer. In my view, there was no evidence to support the finding that the appellant "left the service of his own accord on 11/6/79." On the contrary, he turned up for work on that day! There was some evidence that he left his place of work on the 9th June, 1979 before the usual time, but the learned Presiding officer did not address his mind to the question whether he was justified in doing so, or, if not, whether it constituted just cause for his dismissal, or amounted to a repudiatory breach on his part duly accepted by the respondant. Nor do I think that the finding that respondent did not dismiss the appellant is supported by the evidence. There was, in my view, overwhelming evidence that the appellant was dismissed, as the learned presiding officer clearly recognised in his subsequent attempts to amend his determination. In the absence of any findings of fact on very important issues, including, in particular, a finding on the precise nature of the work for which the appellant was engaged, it is impossible for me to come to a decision which would finally dispose of this matter. This is regrettable, because it inevitably involves delaying the ultimate resolution of this dispute. Simply to dismiss the present appeal, or to allow it and make an award in favour of the appellant for wages in lieu of notice and/or severance payment, could result in one or both parties being left with a genuine sense of grievance that justice had not been done. The respondent may be able to justify the dismissal of the appellant. Mr. Ramanathan very properly conceded that this could not be done on the basis that the appellant was guilty of "misconduct" within the meaning of section 9(a)(ii) of the Employment Ordinance (Cap. 57). The fact that the learned presiding officer sought to justify his original determination by resort to this ground is some confirmation that he failed to address his mind to the real issues in this case. A similar view can be taken of his belated reliance on section 9(a)(iii) of Cap. 57. If he had in mind the appellant's late arrivals or early departures from his place of work, he has not, in my respectful view, considered the question whether this behaviour of the appellant had been tolerated and waived by the respondent. He expressly referred to Exhibit D3 - a document which has been referred to as "the warning letter" given to the appellant. But he appears to have concentrated his attention upon the record of the appellant's attendance prior to the "warning letter" instead of directing his attention to the question whether the appellant's record of attendance after the warning letter amounted to habitual neglect of his duties. Similarly, without a finding on the precise nature of the appellant's duties, it is impossible to say whether the appellant had wilfully disobeyed a lawful and reasonable order by refusing to carry out dyeing work. Mr. Ramathan submitted that, in spite of the various criticisms of the learned presiding officer's handling of this matter, the appellant's claim in respect of severance payment was doomed to failure. The prospects of success may not be high, but I do not think that they are hopeless. The appellant can rely upon the presumption contained in section 31Q of the Employment Ordinance (Cap. 57), and may be able to show an arguable case of dismissal "by reason of redundancy" under paragraph (c) of Section 31B(2) of Cap. 57, if the job he was employed to do had disappeared because of a change in the nature of the respondent's business. The learned presiding officer never considered this aspect of the matter. Accordingly, I do not propose to limit my direction for a new hearing merely to a consideration of the appellant's claim to wages in lieu of notice. It must extend to considering the appellant's claim to severance payment. In the course of considering this appeal, it has become obvious to me and, I think, to the parties' legal advisors, that this case, though superficially straight-forward, does involve quite complex issues of fact and law. For obvious reasons, I have deliberately abstained from entering upon a detailed examination of the various issues, but I feel obliged to acknowledge that I would not have appreciated the full extent of these complexities, without the very able and considerable assistance I have received from Mr. WONG and Mr. Ramanathan. In all the circumstances, when this matter is remitted to the Labour Tribunal, the presiding officer may wish to consider whether he or she should exercise the discretion given by section 10 of the Labour Tribunal Ordinance. That discretion is vested wholly and exclusively in the tribunal. However much I may feel that the new hearing should be conducted in circumstances which allow both parties to be legally represented, I do not think that my power to give directions under section 35(1)(c) extends to directing the tribunal to decline jurisdiction. How the presiding officer decides to exercise that discretion must depend upon the circumstances before him at the material time. In this particular case, I have attached considerable importance to the state of the record kept by the Labour Tribunal. Gone are the days when judges who altered their records were penalised to the tune of the costs of erecting clocktowers or sundials, inscribed with the reminder: "Discite iustitiam, moniti". (of. Henry Cecil : Tipping the Scales, p.36). But, when the rights of the parties to a dispute have to be determined by a hearing at which they are not entitled to be legally represented, I consider that there is much to be said in favour of the Tribunal's duty to keep a fair and accurate record of the proceedings being regardedas an almost sacred duty. I would not wish it to be thought that I consider that presiding officers should set out their reasons in anything like the form and style, normally adopted by judges exercising civil jurisdiction in the ordinary courts. Indeed, many cases before the tribunal will be so simple or straight-forward that it may not be necessary to state any reasons at all. But, where the matter is complicated, or involves numerous relevant issues, not immediately apparent to lay persons, I consider that the record should show the findings of fact made by the tribunal on all essential issues, or be in a form which enables an appellate body, through the exercise of its power to draw any inference of fact (cf. section 35(2)(a) of Cap. 25), to feel satisfied that such findings, and other mental processes leading to the ultimate decision, have been made or undertaken. Failure to do so may result in a miscarriage of justice which cannot be corrected by a appellate court because of the statutory restrictions on its powers of intervention. (Sd.) B.W.M. Downey District Judge. Representation: PAGE - PAGE - &`#$ DCLA000011/1980 CHAN MUK-WING v. YEN SHENG FACTORY LIMITED Judiciary Hong Kong SAR Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR DCLA000011/1980 CHAN MUK-WING v. YEN SHENG FACTORY LIMITED Title Microsoft Word Document MSWordDoc Word.Document.8 Judiciary Hong Kong SAR DCLA000011/1980 CHAN MUK-WING v. YEN SHENG FACTORY LIMITED Title