ENGL308

ENGL308 Understanding Legal Text Labour Law Related Case Analysis–Category of Dismissal Place logo or logotype here, otherwise delete this.

Team Members Lau Sau Yim, Vicky (11900044T) Lee Sheung Yam, Christine (11900554T) Sze PuiShan, Shadow (11943457T) Tam Oi Man, Katie (11911034T) Wong Kin Hei, Gary (11918582T) Wong Lam Lam, Vanny (11900787T) AGENDA • Case Description • Ordinance Relevant • Special terms • How ordinance related • Judgement and our opinion • How to prevent? • Conclusion

Parties involved • claimant • Ms Wong Hiu Chiu (王曉秋) • Nurse, employed by the Salvation Army Hong Kong and Macau Command • Defendant • The Salvation Army Hong Kong and Macau Command • (救世軍港澳軍區)

Parties involved Labor tribunal Claimant Ms Wong Hiu Chiu (王曉秋) Defendant The Salvation Army Hong Kong and Macau Command Ms Wong loses, then she goes and appeals. High court Appellant Respondent 4

Main Focus of this case Reason / Nature of resignation of claimant, Ms Wong Hiu Chui  Summary Dismissal Constructive Dismissal Unreasonable Dismissal

Case background The two parties undergo 3 stages Before going to the Labor Tribunal

Case Background • Stage 1 Date: June-July 2004 • Ms Wong was determined as ‘misconduct’ by her company • Salvation Army Hong Kong and Macau Command • decided to have summary dismissal on her after discussion • Before the discussion, Ms Wong realized the company would like to have summary dismissal on her • Ms Wong tried to explain for her misconduct, and she stated to her company that ‘ ’If you do not accept my explanation and dismiss me, I hope you can allow me to resign by myself, to prevent affecting my future career.’’

Case Description • Stage 2 Date: 19 August 2004 • The management from the Salvation Army Hong Kong finally decided to have summary dismissal on Ms Wong • On the other hand, the company also accepted the voluntarily resignation immediately by Ms Wong as an alternative of ending the employment relationship

Case Description • Stage 3 Date: 26 August 2004 Ms Wong: First day of work after a holiday • She would like to give a resignation letter to company • Gave the company 2 months in advance • She assumed after the annual leave ended in Nov 2004, she would then resign in 1/12/2004 Decision of summary dismissal is made • However, the company only gave her 2 choices to end the employment relationship • 1. Summary dismissal • 2. Voluntarily resignation by Ms Wong immediately

Stage 3 Date: 26 August 2004 • Ms Wong : accept to have voluntarily resignation immediately,only if the company can pay her back a) the lieu in notice b) long service payment/ SeveranceLater, the company showed her a letter of summary dismissal, with the date listed as 26/8/2004Ms Wong wrote a resignation letter to the company, resigned on the same day prevent her resume from having any adverse record

Decision of Ms Wong (claimant) Sued Salvation Army Hong Kong and Macau Command through the Labour Tribunal Department

Reason for the accusation Viewpoint from Ms Wong Salvation Army Hong Kong and Macau Command did not PAID Ms Wong 1. The lieu in notice 2. Long service payment/ Severance

Viewpoint of Defendant Having enough evidences to have summary dismissal on Ms Wong No need to pay Ms Wong the lieu of notice and long service payment

Viewpoint of Defendant Claimant (Ms Wong) resigned on 26th August 2004 voluntarily Employment contract ended with mutual agreement Not the company dismissed the Ms Wong

Judgment report of the Labour Tribunal 15 • The Labour Tribunal is not satisfied with the evidences provided by defendant (救世軍) • For immediate dismissal of the claimant , Ms Wong • The defendant does not have enough or with sufficient reasons to dismiss the claimant • The end of the employment relationship between the two sides • Due to the claimants’ immediate resign • The defendant does not dismiss the nurse

Winner Defendant (Salvation Army Hong Kong and Macau Command ) • Does not need to pay Wages in Lieu of Notice • Or severance payment (or long service payment)

Appellant’s appeal reasons • Ms Wong appealed this to High Court as she was resigned involuntarily • Even she was the one who ended the employment relationship by her resignation on 26 August, 2004 17

Judgement report from High Court WINNER • Appellant , Ms Wong Legal Fact: From the judgement report, • Ms Wong gave the resignation letter involuntarily • Salvation Army Hong Kong and Macau Command forced Ms Wong to resign

Do you know who actually suggest ending the employment relationship first? THE EMPLOYER?Ms Wong?

Industrial relation in the case • Contract of employment is an agreement on the employment conditions made between an employer and employee. The agreement can be made orally or in writing and it includes both express and implied terms. • All employees covered by the Employment Ordinance, irrespective of their hours of work, are entitled to basic protection. (e.g. payment of wages)

Employment Ordinance- Continuous contract of employment ( Cap 57, section 2) • What is a Continuous contract of employment? • Means an employment contract under which an employee works continuously for the same employer for 4 weeks or more, with at least 18 hours in each week.

Long service payment vs. Severance payment • "long service payment" (長期服務金) means the long service payment payable by an employer to an employee under section 31R or to a person entitled to such payment under section 31RA; (Added 76 of 1985 s. 2. Amended 41 of 1990 s. 2) • Not less than 5 years under a continuous contract • His dismissal is not by reason of redundancy

Long service payment vs. Severance payment • " Severance payment" (遣散費) means the severance payment payable by an employer to an employee under section 31B(1); (Added 76 of 1985 s. 2) • Not less than 24 months under a continuous contract • Dismissed by reason of redundancy Mutually exclusive

Labour Tribunal • "Labour Tribunal" (勞資裁處) means the Labour Tribunal established by section 3 of the Labour Tribunal Ordinance (Cap 25); (Added 76 of 1985 s. 2)

Summary Dismissal(即時解僱) (P42 HKIHRM Journal May 2003 issue) • Dismissing an employee without notice or payment in lieu is permissible in circumstance where an employee is guilty of misconduct sufficiently serious as to amount to a repudiation of the employment contract. • The Employment Ordinance sets out four specific examples of conduct that entitle an employer to summarily terminate the employment of an employee. These are: • 1. willfully disobeys a lawful and reasonable order; • 2. misconducts himself; • 3. is guilty of fraud or dishonesty or; • 4. is habitually neglectful in his duties.

Termination by Constructive Dismissal (法律構定的解僱) (P42 HKIHRM Journal May 2003 issue) • There is an implied relationship of trust and respect in an employment relationship. If this relationships breaks downs as a result of employer’s conduct an employee is entitled to regard his employment as terminated without any obligation on his part to provide either notice of termination or payment in lieu. However, for employee to be able to come to this conclusion there must be something more than just a mutual dislike between employer and employee such as :

Termination by Constructive Dismissal (P42 HKIHRM Journal May 2003 issue) • 1. The infliction of physical violence or the reasonable apprehension by an employee of physical damager from violence or disease • 2. Abusive or false accusation by an employer against an employee • 3. An employer failing to pay wages for one month • 4. An employee being put in humiliating circumstances by an employer • 5. The unilateral variation by an employer of the nature of the work performed by the employee

Unreasonable Dismissal (P42 HKIHRM Journal May 2003 issue) • Unreasonable Dismissal is a concept provided by the Employment Ordinance. It designed to provide an employee with remedies for being dismissed, or having his or her employment contract varies, in circumstances where an employer’s actions are designed to avoid the employee becoming entitled to a benefit under the Employment Ordinance.

In order to qualify to make for unreasonable dismissal under the Employment Ordinance, an employee must have been: • 1. Employed for at least 24 months under a continuous contract and dismissed without valid reason because an employer intends to extinguish or reduce any rights of employee under the Employment Ordinance. • 2. Employed under a continuous contract which is varied without valid reason because an employer intends to extinguish or reduce any rights of employee under the Employment Ordinance. • 3. Dismissed with no valid reason with employer being in contravention of various statutory provisions including maternity and sickness allowance provisions.

A claim for unreasonable dismissal can occur upon the expiration of a fixed term contract with in not renewed or may be due it the employer’s conduct (a constructive dismissal) but will not arise where an employee has been summarily dismissed.

In order to assist employee there is an automatic presumption under the Employment Ordinance that any dismissal or variation of contract is madein order to avoid an entitlement under the Employment Ordinance, unless an employer can justify the dismissal variation by showing there is a valid reason to dismiss the employee or vary the contract under one of the following grounds:

1. the conduct of the employee • 2. the capability or qualification of the employee for performing his work • 3. redundancy or other genuine operational requirements of the business • 4. statutory requirement ( i.e. it would be contrary to the law to allow an employee to continue to work in his original position or to continue with the original terms in his employment contract) • 5. other substantial reasons

Claimant's viewpoint 1. Promise made • If Ms Wong accepted to have voluntarily resignation immediately • The company would pay in lieu of notice and long service payment to her • Company refused and she wanted to get back what she wants 2. Voluntary / Involuntary? • Idea of dismissal: is made by the Salvation Army Hong Kong and Macau Command originally • Ms Wong only followed the company’s instruction: End the employment relationship • She used immediate voluntarily resignation as a way • Prevent her CV (Resume) having a bad record

Defendant’s viewpoint • REASON 1: • They have enough evidences to have summary dismissal on Ms Wong • No need to pay Ms Wong the lieu of notice and long service payment • REASON 2: • When their employment contract ended • Due to claimant (Ms Wong) resigned on 26th August 2004 voluntarily • Not the company dismissed the staff (Ms Wong)

Result by the Labour Tribunal The claimant lost in the case

Appeal • Ms Wong appeals this to High Court as she was resigned involuntarily • She was the one who ended the employment relationship by her resignation on 26 August, 2004

History of the case • Labour tribunal: Claimant (Ms Wong) V.S defendant( The Salvation Army of Hong Kong and Macau Command)  Defendant Wins

Ratio decidendi • A latin phrase: the reason or the rationale for the decision (Wikipedia) • “It is impossible to devise formulae for determining the ratio decidendi of a case, but this does not mean it is impossible to give a tolerably accurate description of what lawyers mean when they use the expression” (Cross,1997:72)

Comparison Walker (1972): This case: • Because of the claimant's immediate resignation • Claimant resigns byherself • Dismissal or constructive dismissal by the defendant • His employer told him that his contract of employment must be ended and he is invited to resign • Cook gave the employer a resignation letter 39

Walker (1972) 40 • Suppose that the employer says to the employee, “Your job is finished.I will give you the opportunity to resign.If you don’t you will be sacked.” • The employment relationship is ended by the defendant

Judgment • The labour Tribunal is not satisfied with the evidences provided by defendant (救世軍) • For immediate dismissal of the claimant (Nurse) • The defendant does not have enough or with sufficient reasons to dismiss the claimant

Judgment • The end of the employment relationship between the two sides • Due to the claimants’ immediate resignation • The defendant does not dismiss the nurse

History of the case • Claimant’s appealReasons:she was resigned involuntarily, even she was the one who ended the employment relationship by her resignation on 26 August, 2004 • High Court: Appellent V.S Respondent  Appellent Win

Argument &Judgment Argument: The end of the employment relationship between the two sides • Due to the claimant’s immediate resign • The defendant does not dismiss the nurse Judgment: • Immediate dismissal just a more respectable alternative form of resignation • Defendant (救世軍) ends the employment relationship

Argument & Judgment • Arguments: Lawyer of Defendant (救世軍) • The claimant recommends to use immediate resign as a replacement of summary dismissal Judgment: • The claimant decided to have immediate resign • Intended to facilitate her way to find work , also save face for her • Do not mean the claimant leaves voluntarily

Argument & Judgment Arguments: Lawyer of Defendant 2. Even though The labour Tribunal is not satisfied with the evidences provided by defendant • Both parties (subjectively) believe that employers have sufficient reasons for immediate dismissal Judgment: • Lexical choices do not affect the nature of the case that the appellant is dismissed by the defendant. • Use immediate resign instead of the summary dismissal • A case of dismissal but not resign voluntarily

Argument & Judgment • Termination of employment contracts, must be considered from the real case • Not simply in the form, document wording or label to decide • Since the Tribunal have judged that the defendant does not have sufficient and adequate reason to dismiss the claimant Unreasonable dismissal

Prevention 48

Prevention 49 Termination of Employment Contract by Notice or Payment in lieu of Notice **In case a notice has not been given, one shall adopt the average monthly wages of the employee in the 12-month period preceding “the day when the contract is terminated”.

Prevention Commissioner for Labour Court of First Instance 50 Ms Wong: - Actively participate in the resignation arrangement, discuss the severance pay and other wages disposal - Claim for Remedies, serve written notice to employer for the invalid dismissal reason

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