EVELYN SEMANA BACHICHA v. POON SHIU MAN HENRY

EVELYN SEMANA BACHICHA v. POON SHIU MAN HENRY

The Court set aside the conciliation compromise as an unconscionable bargain entered into by a vulnerable employee under a material misunderstanding promoted by employer assertions and flawed conciliator advice; it held the employer breached the implied mutual trust and confidence in addition to effecting...

Source-derived case information.

Citation
EVELYN SEMANA BACHICHA v. POON SHIU MAN HENRY
Parties
Plaintiff/appellant: EVELYN SEMANA BACHICHA; Defendant/respondent: POON SHIU MAN HENRY
Court
Court of Appeal
Jurisdiction
Hong Kong
Judgment Date
18 July 2000
Case Number
CACV55/2000
Procedural Posture
Civil Appeal (employment Dispute) / Court of Appeal Judgment on Appeal From District Court
Outcome
Appeal partly allowed.
Legal Topics
Constructive Dismissal, Implied Term of Mutual Trust and Confidence, Unconscionable Bargain, Compromise/settlement Agreements, Measure of Damages, Loss of Chance, Costs and Taxation
Source Language
en
Employment Law Contract Law Equity Civil Procedure Constructive Dismissal Implied Term of Mutual Trust and Confidence Unconscionable Bargain Compromise/settlement Agreements +3 more

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Parties

EVELYN SEMANA BACHICHA

Plaintiff/appellant

POON SHIU MAN HENRY

Defendant/respondent

Procedural Posture

Civil Appeal (employment Dispute) / Court of Appeal Judgment on Appeal From District Court

Legal Issues

  1. 1 Whether a conciliation settlement signed at the Labour Department was binding or should be set aside for mistake/unconscionability
  2. 2 Whether employer conduct amounted to breach of implied term of mutual trust and confidence in addition to constructive dismissal
  3. 3 Proper measure of damages for losses flowing from breach of the implied term (actual loss v loss of chance)

Ratio Decidendi

The Court set aside the conciliation compromise as an unconscionable bargain entered into by a vulnerable employee under a material misunderstanding promoted by employer assertions and flawed conciliator advice; it held the employer breached the implied mutual trust and confidence in addition to effecting constructive dismissal and therefore the correct measure was loss of a chance of alternative employment (discounted), reducing the constructive dismissal quantum to HK$17,370; costs below were to be taxed and plaintiff awarded 75% of appeal costs.

Court Disposition

Appeal partly allowed.

Orders

  • Compromise agreement dated 20 October 1998 set aside.
  • Award for damages for constructive dismissal reduced from HK$46,577.00 to HK$17,370.00 (representing a 50% discounted 9-month wage loss as loss of chance).