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HCME 4/2019
[2020] HKCFI 2525
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MINOR EMPLOYMENT CLAIMS APPEAL NO 4 OF 2019
(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS
ADJUDICATION BOARD APPEAL NO MB 0444 OF 2019(B))
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| BETWEEN |
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LAM SIN-YI SINDY （林倩頤） |
Claimant
(Appellant) |
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and
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LEUNG KING-WAI WILLIAM t/a WILLIAM KW LEUNG & CO
（梁景威經營梁景威律師事務所） |
Defendant
(Respondent) |
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Before: Hon Mimmie Chan J in Court
Dates of Written Submissions: 3, 7 and 8 September 2020
Date of Judgment: 29 September 2020
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J U D G M E N T
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Background
1. On 28 May 2020, this Court granted leave to the Claimant (“Employee”) to appeal against the Decision of the Adjudicating Officer of the Minor Employment Claims Adjudication Board (“Board”) of 4 November 2019 (“Decision”), by which the Board dismissed the Employee’s claim against the Defendant (“Employer”). The question of law on which leave to appeal was granted is whether, in determining the facts and construing whether the words and actions of the Employee constituted resignation, the Board should have considered the entire context and circumstances of the dialogue between the Employer and the Employee, and not merely the literal meaning of the words used.
2. The Employee was represented by solicitors and Counsel (acting pro bono) on the Appeal, which was dealt with by paper disposal with submissions filed and served on behalf of both the Employee and the Employer.
Facts
3. On 8 August 2019, the Employee commenced employment with the Employer, trading as a firm of solicitors, as secretary. The contract of employment specified a probation period of 3 months, during which the employment may be terminated by either party by service of 7 days’ prior notice.
4. In the afternoon of 18 September 2019, the Employee submitted to the human resources and administrative manager (“Manager”) of the Employer a leave application form, to take “no pay leave” for half a day on 19 September 2019, from 9 am to 1 pm (“Leave Application”). The Employee stated in her evidence that this was in order to take her mother to see a doctor, and that the Leave Application had been approved by the Manager. When the matter came to the attention of the Employer in the morning of 19 September 2019, the Employer sent a message by Whatsapp to a group including the Manager and the Employee at 10:48 am, stating that he had not approved the Leave Application which had only been made on one day’s notice. The Employer further stated that the firm would never approve leave applications short of 7 days’ notice, unless there was evidence to prove an emergency. The Employer also stated curtly in the message that employees of the firm were employed to work, and not to take leave without reasons, and informed the Employee that there should not be any further exceptions in the future.
5. The message at 10:48 am was shortly followed by another message at 10:50 am (“10:50 Message”), by which the Employer stated to the Employee:
“I am now considering whether you have absented from work without cause. If yes, you have to leave immediately! （我正在考慮你是否曠工。是的話你就要立即離開!）”
6. The Employer also stated to the Manager, in the same Whatsapp group, at 10:56 am that the Employee was still in her probation period, and that a week’s notice was required (“10:56 Message”).
7. At 1:57 pm, the Employee responded to the Employer’s message in the Whatsapp group, in what the Board referred to as a lengthy response (“1:57 Message”). In the 1:57 Message, the Employee stated that she had only taken half a day of no pay leave, and pointed out that the Employer had instructed before that leave applications should be made to the Manager, for the Manager to submit to the Employer for signature. The Employee queried in the 1:57 Message whether 7 days’ notice was required even for no pay leave, and finally asked, rhetorically, whether the Employer was treating her as being absent without cause, and that she was to leave immediately. She stated that it was up to the Employer to use any alleged fault to dismiss her, that she had been prepared to return to work in the afternoon, but it did not matter if she should return to pack her things, to return her card and to take her pay cheque. She pointed out that the Employer could arrange for other members of staff to monitor her packing.
8. As recorded in the Decision, the Employee’s evidence was that she returned to the office at approximately 2 pm, with the intention of seeking clarification from the Defendant, but was prevented from doing so by the Manager and the receptionist of the firm (“Receptionist”). The Employee was informed that the Defendant was not in the office, and she was asked to pack her personal belongings, return the keys to the office and to cancel her computer password. The Employee’s personal belongings were checked, before she was permitted to leave the office. The Employee claimed in her evidence that the Manager and Receptionist had consoled her, saying that being dismissed was a minor matter and she should not be unhappy. The Employee further claimed in her evidence that before she left, she had asked the Manager whether she was being told to leave because she had been absent from work without cause, and the Manager had indicated that the Defendant would have to be consulted on this.
9. The Employee did not return to work thereafter, and discovered on 25 September 2019 that the Defendant had, in making payment of her wages for September 2019, deducted a sum of $4,316.67 as payment in lieu of 7 days’ notice which the Defendant claimed he was entitled to do.
Procedural history
10. The trial before the Board took place on 4 November 2019, in the absence of the Defendant, who indicated to the Board through the Manager at the hearing that he could not attend the trial due to work engagements. The Defendant did not seek an adjournment of the hearing, nor was any Defence, witness statement or documents filed.
11. The Board considered the evidence, and expressed the view that the testimony of the Employee contradicted the records of the Whatsapp messages produced. The Board pointed out that the Employee had made a lengthy response to the Employer by the 1:57 Message, which was inconsistent with the Employee’s claim that she had not made any reply before returning to the office.
12. The Board found that at a time when the Employer was still considering whether the Employee had absented from work without cause, and before any decision was made by the Employer in that regard, the Employee had herself indicated that she would return to the office to pack, return the keys and to collect her pay cheque. The Board stated that although the Employee had not used the word “resign” in her Whatsapp messages, the contents of her messages and her conduct had demonstrated her termination of the employment. The Board referred to the Whatsapp message from the Manager at 6:50 pm on 25 September 2019, by which the Manager had informed the Employee that the Defendant had not expressly stated that the Employee was dismissed.
13. The Board considered that even if the Employee had believed that the Defendant had summarily dismissed her on 19 September 2019 by the 10:50 Message and the 10:56 Message (which referred to the requirement of one week’s notice), the Defendant had only intended by the 10:56 Message to give the Employee 7 days’ notice, and not immediate notice of termination. The Board considered that there was no evidence to show that the Defendant had decided that the Employee had absented herself from work for no cause.
14. On the above bases, the Board found that the Whatsapp records clearly showed that the Defendant had not summarily dismissed the Employee on 19 September 2019, and that to the contrary, it was the Employee who had resigned from her employment by stating in the 1:57 Message that she would pack her personal belongings and by her actual conduct. The Board found that since the Employee had failed to give the 7 days’ notice of termination required under the employment contract, the Employer was entitled to deduct the 7 days’ wages, and the Employee’s claim was rejected.
15. Leave having been granted on 28 May 2020 for the Employee to appeal against the Decision on the question of law identified, the Employee filed her Notice of Originating Motion (“Motion”) for the Appeal on 26 June 2020, seeking an order for the case to be remitted to the Board for retrial by a different adjudicating officer. The Employee was...
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