HK's High Court decides on worker's claims
The Court of First Instance of Hong Kong's High Court recently dealt with an application for leave to appeal against a decision of the Labour Tribunal.
The case involved a dispute between a worker, who was employed as a Native-speaking English Teacher (NET) at an aided secondary school in Hong Kong, and his employer.
In this case, the worker sought to challenge the Tribunal's decision to dismiss his claims for various entitlements following his summary dismissal.
The Court's ruling delved into the complexities of employment law and the circumstances under which an employer may justify summary dismissal.
The worker, a South African resident, was employed by the school as a NET under the Enhanced Native-Speaking English Teacher (NET) Scheme in secondary schools.
The worker's employment was governed by the memorandum on the terms and conditions of service for appointment as teacher under the NET scheme.
On 27 January 2020, the Education Bureau (EDB) issued a circular requiring all school staff to return to Hong Kong by the end of the original Chinese New Year school holiday, which was scheduled until 2 February 2020 for the employer.
The circular stated that "in view of the incubation period of virus, school staff and students should be back to Hong Kong not later than their original Chinese New Year school holiday and stay at home as far as possible".
Despite being informed of this requirement, the worker remained in South Africa and did not report to the school principal on 3 February 2020. Subsequently, on 23 March 2020, the President of South Africa announced a nationwide lockdown, which was later extended until 1 October 2020.
According to records, the principal sent an email to the worker on 8 May 2020, stating:
“To fulfill your duty, you should return to Hong Kong immediately once the departing flight to Hong Kong is available. If there is any update about the national lockdown, you should report to us immediately.”
The worker's employment was ultimately terminated by the school's Incorporated Management Committee (IMC) on 1 November 2020.
The worker then commenced proceedings against the employer, seeking to recover various entitlements, including wages in lieu of notice, arrears of wages, special allowance, retention allowance, sick leave pay, interest on late payment of wages, and contract gratuity.
The Tribunal dismissed the worker's claims, finding that the employer had good and sufficient reasons to justify the summary dismissal of the worker.
The Tribunal held that the worker had failed to establish a reasonable excuse for not complying with the lawful and reasonable instructions of the employer, namely the 1st Return Order, the 2nd Return Order, and the Order to Update.
The Tribunal also found that the disobedience was wilful in the circumstances, considering factors such as the principal's repeated reminders, the worker's assurances that he would return once flights resumed, and his failure to provide medical evidence to support his claimed inability to travel.
Dissatisfied with the Tribunal's decision, the worker applied for leave to appeal, raising several grounds of appeal. These grounds included allegations that the summary dismissal was unwarranted and unfair, that the Tribunal wrongly confirmed the allegation of wilful disobedience, and that the worker was entitled to most of his claims notwithstanding his summary dismissal.
In assessing the worker's application, the Court emphasised the limited circumstances under which an appeal on a question of law may lie, as stated in Kwong Mile Services Ltd v Commissioner of Inland Revenue (2004) 7 HKCFAR 275:
"A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors."
The Court examined each of the worker's intended grounds of appeal, finding that none of them were arguable. The Court noted that the Tribunal had correctly applied the relevant legal principles, such as the burden of proof in summary dismissal cases and the need for an employee to establish a reasonable excuse for not obeying a prima facie lawful and reasonable order.
Regarding the worker's claim that he had a reasonable excuse for not returning to Hong Kong due to his health conditions, the Court agreed with the Tribunal's assessment:
"It cannot be said that the Presiding Officer's conclusion was perverse or irrational, or that there was no evidence to support it, or that it was made by reference to irrelevant factors or without regard to relevant factors."
The Court also rejected the worker's arguments that he was entitled to most of his claims despite the summary dismissal. The Court noted that the Tribunal had properly considered the relevant provisions of the employment contract, such as the forfeiture of rights and benefits upon dismissal, and the requirements for receiving certain allowances and payments.
Ultimately, the Court dismissed the worker's application for leave to appeal, concluding that none of the intended grounds of appeal were arguable.
The Court's decision serves as a reminder of the high threshold that must be met for an appeal on a question of law to succeed in employment disputes.
As the Court observed:
"Asserting that a point is material does not make it so."
This case highlights the importance of employees complying with lawful and reasonable instructions from their employers. It also underscores the need for employees to provide sufficient evidence to support any claims of reasonable excuse for non-compliance.
