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Sunny Tadjudin v Bank Of America, National Association

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date28 October 2008
Year2008
Judgement NumberHCA322/2008
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA000322/2008 SUNNY TADJUDIN v. BANK OF AMERICA, NATIONAL ASSOCIATION

HCA 322/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 322 OF 2008

(Transferred from LBTC 5551 of 2007)

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BETWEEN
SUNNY TADJUDIN Plaintiff
and
BANK OF AMERICA, NATIONAL ASSOCIATION Defendant

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Coram : Before Master Levy in Chambers

Date of Hearing : 15 October 2008

Date of Judgment : 28 October 2008

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J U D G M E N T

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INTRODUCTION

1. Miss Tadjudin was formerly employed by the Bank of America, National Association (“the Bank”) pursuant to a contract of employment dated 19 April 2000 (“the Contract”) as a Vice-President in its Distressed Debt Trading Group. The Bank terminated the Contract by a letter dated 30 August 2007, and the termination took effect from 28 August 2007. In lieu of notice of termination, the Bank paid Miss Tadjudin one extra month’s wages. She was also paid the unused annual leave and pro-rata year-end payment.

2. At the heart of the dispute is the discretionary performance bonus, which Miss Tadjudin claims that she is eligible for, but the Bank, in breach of the implied terms of the Contract, had failed to make an award in her favour.

3. The relevant clause of the discretionary performance bonus is provided in the last paragraph of clause 1 of the Contract, and it reads:

“You will be eligible for consideration under the Bank’s performance incentive program and it will be subject to you being employed by the Bank at the time of payment.”

4. Miss Tadjudin first commenced her claim against the Bank in the Labour Tribunal, and it was transferred to the Court of First Instance. After the Statement of Claim (“SOC”) was filed, the Bank issued the summons under Order 18 rule 19 of the Rules of High Court to strike out the SOC under all the four grounds provided therein, and under Order 14A for the determination of the following questions of law, namely:

(i) Whether, on proper construction of the Plaintiff’s employment contract with the Defendant, the terms set out in Paragraphs 5(1) to 5(4) of the SOC can be implied into the terms therein; and

(ii) If the answer to the above is yes, whether the implied terms set out in Paragraphs 5(1) to 5(4) of the SOC are capable of overriding the effect of the express terms in the Plaintiff’s employment contract with the Defendant.

ISSUES

5. The cause of action in this claim is based not on an allegation of breach of express terms, but of the implied terms, which are particularized in Paragraphs 5(1) to 5(4) of the SOC. For easy understanding, I set out below the entire Paragraph 5 of the SOC in full: -

“As legal incidents of the employment relationship between the Plaintiff and Defendant there were implied into the Employment Agreement contractual duties on the Defendant:

(1) not to commit any unlawful act of discrimination against the Plaintiff;

(2) not to exercise its right to terminate the Plaintiff’s employment by giving one month’s notice in writing or by paying one month’s salary in lieu of notice in order to avoid the Plaintiff’s being eligible for the Defendant’s performance incentive program;

(3) not to implement its performance evaluations in respect of the Plaintiff in an irrational, perverse or arbitrary manner or in a manner that was not bona fide; and

(4) not to administer its performance incentive program in respect of the Plaintiff in an irrational, perverse or arbitrary manner or in a manner that was not bona fide.”

6. Mr. Scott, SC, and Mr. McLeish, respectively senior counsel and counsel for the Bank and Miss Tadjudin agree that should I accede to the Bank’s application to strike out Paragraphs 5(1) to 5(4) of the SOC, the whole action would also go.

7. Although the grounds advanced for striking out Paragraphs 5(1) to 5(4) were given different headings, they can however be broadly divided into two main grounds. They are the jurisdictional argument in relation to Paragraph 5(1), and the implied terms argument in relation to Paragraphs 5(2) to 5(4) of the SOC.

8. Hence, the issue I need to decide is therefore whether:

(1) The cause of action pleaded in Paragraph 5(1) of the SOC falls within the exclusive jurisdiction of the District Court by the operation of the Sex Discrimination Ordinance (“SDO”), Cap. 480. This will be referred to as the “Jurisdiction Issue”.

(2) An implied term can be incorporated into the Contract to contradict its express terms ( this is the ground for striking out Paragraph 5(2) of the SOC (“Implied Term Issue”), but it is similarly applicable to the ground for striking out Paragraphs 5(3) to 5(4) of the SOC (“Irrelevant Pleadings Issue”))

DISCUSSIONS

9. The laws on striking out are settled, and I do not wish to repeat herein. At the hearing, I made a remark that this case appeared to be more suitable to be heard by a Judge because of the importance of the legal issues involved in employment contracts, and in particular when the losing party would likely appeal. It is evident that there would be another re-hearing before a Judge.

10. That being the case, my reasons could be brief.

(1) Jurisdiction Issue

Mr. Scott’s arguments

11. Mr. Scott, submits that the implied term of a duty is within the ambit of section 11 (2) of Part III of the SDO, which make it unlawful to discriminate against a woman in a work establishment. Mr. Scott therefore argues that sections 75(1), 76(1) and 76(3) of the SDO restrict Miss Tadjudin’s alleged discriminatory act as pleaded in Paragraph 5(1) of the SOC to be litigated only in the District Court.

Mr. McLeish’s arguments

12. Mr. McLeish contends that Miss Tadjudin’s claim is one of contract, and section 76 (3) of the SDO only confers exclusive jurisdiction in a civil action found on tort, but not on contract. Hence, Paragraph 5(1) of the SOC, as Mr, McLeish argues, is not caught by the restriction imposed by the SDO.

Analysis

13. According to Paragraphs 33, 41 and 42(1) of the SOC, Miss Tadjudin’s claim is based on an allegation that the Bank has allegedly applied a pro-male bias in favour of males in its consideration for promoting employees at managerial level, and in its decision to terminate the Contract.

14. In the SOC, Miss Tadjudin seeks a relief for damages for the alleged unlawful acts, and claims for an entitlement for payment of performance bonus.

15. Are the said alleged discriminatory acts, and the relief Miss Tadjudin claims in fact governed by the SDO?

16. I think they are. According to the particulars of the alleged acts of sex discrimination as pleaded in the SOC (Paragraphs 33, 41 and 42(1) of the SOC), the said alleged discriminatory acts, if proved, may be held to be unlawful under section 11(2)(a) and (c) of the SDO. A District Judge could grant the relief Miss...

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