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Hong Kong – Employee Successfully Imposed An Interlocutory Injunction On The Employer’s Summary Dismissal Decision.

3 February, 2014

 

Legal News & Analysis – Asia Pacific – Hong Kong – Labour & Employment

 

 

In Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School [HCA1523/2013], the Plaintiff had been teaching at the DefendantSchool since 1986, and became the principal thereof in 2009. But for her termination of employment in July 2013, the Plaintiff would be due for retirement on 31 August 2014.

 

During the period from August 2012 to 27 July 2013, a number of reminders/warnings were given by the DefendantSchool to the Plaintiff. On 27 July 2013, after sending 3 warning letters to the Plaintiff, the DefendantSchool summarily dismissed her on the same day.

 

The Plaintiff sought an interlocutory injunction to enjoin the Defendant School from acting upon the dismissal before the Permanent Secretary for Education (“PS“) has withdrawn her approval (or has approved another principal) in accordance with section 55 of the Education Ordinance, its related regulations and/or the Code of Aid for Aided Schools (the “Code“).

 

It was undisputed that the terms set out in the Plaintiff’s employment contract could not contravene the Education Ordinance, its related regulations, the Code or the instructions given by the Secretary for Education/PS.

 

One of the main disputes between the parties was whether the summary dismissal was justifiable or wrongful. In addition, the Plaintiff also contended that the DefendantSchool had not acted in accordance with section 55 of the Education Ordinance which provides that:-

 

“The principal of a school shall hold office until-

  1. the PS withdraws his approval of the principal…or
  2. the PS approves another teacher of the school as the principal…”

In order to consider the Plaintiff’s application, the court had to consider the following issues:-

 

  1. a serious question to be tried;
  2. adequacy of damages as a remedy;
  3. balance of convenience or balance of the risk of doing an injustice.

 

(a) A Serious Question To Be Tried

 

The court considered that the present case was clearly not a frivolous or vexatious claim and involved a serious question to be tried. This was particularly the case as the Defendant School did not dispute the applicable provisions of the Education Ordinance formed part of the Plaintiff’s employment contract, and the need for the PS to act in accordance with section 55 of the Education Ordinance before the Plaintiff’s office as principal could be brought to an end lawfully but the PS had not so acted.

 

(b) Adequacy Of Damages As A Remedy/ Balance Of Convenience

 

The Plaintiff relied on two cases, Robb v London Borough of Hammersmith & Fulham [1991] IRLR 72 and Gryf-Lowczowski v Hinchingbrooke Healthcare NHS Trust [2006] IRLR 100, which have been summed up in Chitty on Contracts (2012) 31st Ed:-

 

“…An injunction to restrain dismissal can also be issued in respect of a period during which no services are to be rendered under the contract. Thus where an employee had been suspended on full pay while disciplinary proceedings against him were in progress, it was held that the employers could be restrained from dismissing him before the disciplinary proceedings had run their full course; and they could be so restrained if they had purported to dismiss the employee without any recourse to the disciplinary procedure which governed the employment relationship.”

 

The above two cases involve dismissals where the contract provided for a relative elaborate disciplinary procedure, or an investigating panel. One of the reasons for granting the injunction was to ensure the employee’s entitlement to such procedure. In the Robb case, the court considered that “….damages would not be an adequate remedy for the manner of his unlawful dismissal and his deprivation of the disciplinary procedure.

 

In the present case, although no formal disciplinary procedure had been laid down in the employment contract, the court considered that in view of section 55 of the Education Ordinance, it was appropriate to grant an injunction because damages would not be an adequate remedy for the deprivation of the security of tenure apparently afforded by that provision.

 

In reaching its decision, the court had also taken into account the following:-

 

  1. the Plaintiff expressly accepted she was not seeking reinstatement of her post (and the injunction is not intended to have that effect);
  2. the DefendantSchool has not informed the PS of the Plaintiff’s summary dismissal;
  3. the DefendantSchool has not given an undertaking not to act upon the summary dismissal before the PS has acted in accordance with section 55 of the Education Ordinance.
  4. If an injunction order in the terms sought by the Plaintiff is granted, it is unlikely substantial difficulties would be caused to the DefendantSchool regarding its daily administration and affairs.

 

In light of the above, the court granted an injunction order in the following terms:-

“An injunction until:

 

  1. judgement in the action;
  2. the PS has acted in accordance with the Education Ordinance;
  3. further order,

 

(whichever is the earlier) to restrain the Defendant School, their servants or agents or otherwise from acting upon the purported dismissal of 27 July 2013 of the Plaintiff from the post of Principal before the PS has withdrawn her approval (or has approved another Principal) in accordance with the Education Ordinance.”

 

 Deacons

 

For further information, please contact:

 

Elsie Chan, Deacons

elsie.chan@deacons.com.hk

 

Deacons Labour & Employment Practice Profile in Hong Kong

 

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