Lam Sin Yi Sindy v Leung King Wai William t/ William KW Leung & Co
Mimmie Chan J
29 September 2020

Parties

  • The Claimant was an employee in a solicitor firm, who worked as a secretary under an employment contract with a three-month probation period (“Employee”).

The Defendant was the employer of the Claimant. He was the Principal at William KW Leung & Co, performing a managing role in the solicitor firm (“Employer”).

Facts

  • The Employee submitted a leave application form to take “no pay leave” for half a day to the firm’s human resources and administrative manager (“Manager”), which was approved. The Employee’s reason for taking leave was to take her mother to see a doctor in the morning. When the matter was brought to the attention of the Employer, he sent a message by WhatsApp to a group including the Manager and the Employee stating that he had not approved the leave application. 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.
  • The Employer also sent a direct message to the Employee stating, “I am now considering whether you have absented from work without cause. If yes, you have to leave immediately!”. The Employer also stated to the Manager in the same Whatsapp group that the Employee was still in her probation period and that a week’s notice was required.
  • The Employee replied to the Employer’s message, questioning the basis of the 7 days’ notice requirement and asked 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 rely upon any alleged fault to dismiss her, and that she had been prepared to return to work in the afternoon, but “it would not matter” if she should return to pack her things, to return her card and to take her pay cheque.
  • Upon the Employee’s return to the office, she was informed that the Employer was not in the office and was asked by the Manager and receptionist to pack her belongings and to return the office keys. She asked the Manager whether she was being told to leave because she had been absent from work without cause, and the Manager said she would need to consult the Employer on this. The Employee had not since returned to the office.
  • The Employer deducted a sum of HK$4,316.67 from the Employee’s final payment as payment in lieu of 7 days’ notice. The Employee disputed this.
  • The Minor Employment Claims Adjudication Board (“Board”) treated the Employee’s actions as conduct demonstrating her termination of the employment.

Issues

  • The Employee appealed the decision of the Board. The question of law 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.

Judgment

Contextual Approach

  • The Court considered a number of cases which showed the Courts’ approach to the question of how notices of termination of employment by employers and employees should be considered and properly construed. The Court acknowledged the difficulties in finding the employee’s clear and unequivocal words or conduct regarding her termination when the termination was reached amidst heated arguments.
  • The Willoughby decision was cited, where the English Court of Appeal has said that “the words of notice may be the outcome of an acrimonious exchange between the employer and employee and may be uttered in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say.” The Court stipulated the need for employers to take their time before accepting an employee’s alleged resignation after a heated argument.2 Where employers neither took time for reconsideration nor obtaining confirmation of the employee’s intention to resign, they may be liable for wrongful dismissal.
  • The Court stressed the importance to not only consider the Employee’s response to the Employer in the WhatsApp chat, but also have regard to the entire context during which the heated exchange occurs. It considered the WhatsApp exchanges prior to the Employee’s stipulation of her resignation and held that her query as to whether she was being dismissed and her claim that “it would not matter” if she returned to the office to pack her belongings was an impulsive statement expressed in the moment of anger, and in any event, could not be properly and reasonably construed by the Employer as resignation. The Court held that the Employee did not resign in an unambiguous manner and she was effectively dismissed by the Employer and ordered the Employer to reimburse the payment in lieu of notice deducted from the Claimant’s wage and her respective legal costs.

Important Remark

  • Employers should avoid pursuing immediate action when employees make instant statements in the heat of a moment regarding their resignation. Allowing employees reasonable time to reconsider their decisions is useful to prevent allegations of wrongful dismissal. It would be beneficial to both parties if employers offer the chance to discuss the matter with employees following disputes.

– Catherine Leung, Partner,
Lewis Silkin

2 WilloughbyvCFCapitalPLC[2011]IRLR985

Jurisdictions: 

Legal Director, Lewis Silkin Hong Kong