LEE LAI MING v. KAM MING E P ENGINEERING CO LTD

LEE LAI MING v. KAM MING E P ENGINEERING CO LTD

The Tribunal's general assertion that working hours are always an essential term and cannot be unilaterally changed was too sweeping and unsupported by adequate factual findings; because the Tribunal failed to investigate whether there was any express or implied contractual power to vary hours and whether the term was a condition, its finding of constructive dismissal and award could not stand and must be set aside and remitted for re-trial.

Citation
LEE LAI MING v. KAM MING E P ENGINEERING CO LTD
Parties
Claimant: Claimant; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 May 2003
Case Number
HCLA105/2002
Procedural Posture
Appeal From Labour Tribunal / Appeal to Court of First Instance; Remitted to Labour Tribunal for Re Trial Before Another Presiding Officer
Outcome
Appeal allowed in part; Tribunal's finding on constructive dismissal set aside and matter remitted to the Labour Tribunal for re-trial before another Presiding Officer
Legal Topics
Constructive Dismissal, Unilateral Variation of Working Hours, Repudiatory Breach, Implied Terms, Remittal for Retrial, Costs
Source Language
EN
Employment Law Contract Law Constructive Dismissal Unilateral Variation of Working Hours Repudiatory Breach Implied Terms Remittal for Retrial Costs

Case Brief

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Parties

Claimant

Claimant

Defendant

Defendant

Procedural Posture

Appeal From Labour Tribunal / Appeal to Court of First Instance; Remitted to Labour Tribunal for Re Trial Before Another Presiding Officer

Legal Issues

  1. 1 Whether the change of working hours amounted to constructive dismissal
  2. 2 Whether working hours constituted an essential term (condition) of the employment contract
  3. 3 Whether the employer had an express or implied contractual power to vary working hours unilaterally

Ratio Decidendi

The Tribunal's general assertion that working hours are always an essential term and cannot be unilaterally changed was too sweeping and unsupported by adequate factual findings; because the Tribunal failed to investigate whether there was any express or implied contractual power to vary hours and whether the term was a condition, its finding of constructive dismissal and award could not stand and must be set aside and remitted for re-trial.

Court Disposition

Appeal allowed in part; Tribunal's finding on constructive dismissal set aside and matter remitted to the Labour Tribunal for re-trial before another Presiding Officer

Orders

  • Remit the constructive dismissal issue to the Labour Tribunal for re-trial before another Presiding Officer with directions to investigate express and implied terms (including any power to vary working hours) and the contractual status of working hours
  • Records of overtime and pay to be considered in determining seriousness of the variation and whether it amounted to repudiation