Hong Kong’s High Court recently dealt with a case involving a worker’s application for leave to appeal against a Labour Tribunal’s decision.
The case, which unfolded amidst the global COVID-19 pandemic, shed light on the complexities of employment disputes and the challenges faced by both employers and employees during these unprecedented times.
The worker, a Native-speaking English Teacher (NET) employed at an aided secondary school in Hong Kong, found himself in a challenging situation when he was unable to return to the city due to travel restrictions and health concerns.
The employer, adhering to the guidelines set forth by the Education Bureau (EDB), expected the worker to return to Hong Kong by the end of the original Chinese New Year school holiday in February 2020.
However, the worker, whose normal place of residence is South Africa, chose to remain in his home country, citing fears for his well-being as a chronic sufferer of diabetes and hypertension.
Background of the case
The Labour Tribunal, tasked with adjudicating the dispute, dismissed the worker’s claims for 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 Presiding Officer determined that the worker had failed to provide a reasonable excuse for not complying with the employer’s lawful and reasonable instructions to return to Hong Kong.
Moreover, the Tribunal found that the worker’s disobedience was wilful, considering the principal’s repeated reminders and the worker’s failure to keep the employer informed about the resumption of flights from South Africa.
Dissatisfied with the Labour Tribunal’s decision, the worker sought leave to appeal to the High Court, raising several grounds for consideration. The worker argued that summary dismissal was unwarranted and unfair, given his genuine concerns for his health and safety.
He also claimed that the Presiding Officer had erred in confirming the allegation of wilful disobedience, drawing inferences from less material facts while disregarding more pertinent information.
The worker’s appeal
The High Court, in its role as an appellate body, examined each of the worker’s intended grounds for appeal to determine their arguability. The Court acknowledged the challenges posed by the pandemic but emphasised the importance of providing sufficient evidence to support claims in employment disputes.
The Court also recognised the Labour Tribunal’s statutory duty to investigate and consider all relevant factors when assessing the validity of a worker’s claims.
Unable to return to Hong Kong
One of the key issues highlighted in the High Court’s analysis was the worker’s failure to provide timely medical evidence to substantiate his inability to return to Hong Kong.
The Presiding Officer had noted that any school staff subject to the Return Requirement could have adduced medical evidence to prove their inability to comply. However, the worker had not done so, undermining the credibility of his claims.
The High Court also addressed the worker’s complaint about being prevented from conducting his case properly during the trial and review hearing.
The Court noted that the worker had not identified any specific instances where he was unfairly impeded, and emphasised that the Presiding Officer’s role in questioning witnesses and responding to submissions did not necessarily mean that the worker was prevented from presenting his case adequately.
Ultimately, the High Court dismissed the worker’s application for leave to appeal, finding that none of the intended grounds were arguable.
The Court’s decision reminded employers of the importance of providing credible evidence to support claims in employment disputes, particularly in the context of the challenges posed by the COVID-19 pandemic.
The case, while unique in its circumstances, highlighted the balance that must be struck between protecting workers’ rights and ensuring that employers can maintain operational continuity during times of crisis.
