HUNG WING KAM v. K.L. SERVICES LTD

HUNG WING KAM v. K.L. SERVICES LTD

The Presiding Officer's factual finding accepting the claimant's evidence that she would 'try her best' meant there was no proven wilful refusal to obey an order; the employer bears the burden to prove dismissal falls within s.9; material factual issues (the 5 March letter, prior warning of neglect, and related oral evidence) were not adequately investigated and the case must be remitted to the Presiding Officer for further inquiry to determine whether dismissal for cause was established.

Citation
HUNG WING KAM v. K.L. SERVICES LTD
Parties
Respondent/claimant: Hung Wing Kam; Appellant/defendant: K.L. Services Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 December 1996
Case Number
HCLA124/1996
Procedural Posture
Labour Tribunal Appeal to High Court / Appeal Judgment Remitted for Further Inquiry
Outcome
Appeal neither allowed nor dismissed; remitted to Presiding Officer for further inquiry on specified factual issues; costs each party to bear own costs.
Legal Topics
Wrongful Dismissal, Summary Dismissal, Burden of Proof, Habitual Neglect of Duty, Investigatory Remit, Remittal for Further Inquiry
Source Language
EN
Labour Law Employment Law Wrongful Dismissal Summary Dismissal Burden of Proof Habitual Neglect of Duty Investigatory Remit Remittal for Further Inquiry

Case Brief

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Parties

Hung Wing Kam

Respondent/claimant

K.L. Services Limited

Appellant/defendant

Procedural Posture

Labour Tribunal Appeal to High Court / Appeal Judgment Remitted for Further Inquiry

Legal Issues

  1. 1 Whether dismissal was for cause under s.9 of the Employment Ordinance
  2. 2 Which party bears the burden of proof for summary dismissal
  3. 3 Whether the claimant was obliged to perform the additional duty concerning the sample room keys

Ratio Decidendi

The Presiding Officer's factual finding accepting the claimant's evidence that she would 'try her best' meant there was no proven wilful refusal to obey an order; the employer bears the burden to prove dismissal falls within s.9; material factual issues (the 5 March letter, prior warning of neglect, and related oral evidence) were not adequately investigated and the case must be remitted to the Presiding Officer for further inquiry to determine whether dismissal for cause was established.

Court Disposition

Appeal neither allowed nor dismissed; remitted to Presiding Officer for further inquiry on specified factual issues; costs each party to bear own costs.

Orders

  • Remit the case to the Presiding Officer for further inquiry into the significance of the letter dated 5 March 1996, the prior warning dated 11 December 1995 (habitual neglect), and related oral evidence.
  • Each party shall bear its own costs (costs nisi).