- No Surprise in Thomas Vincent v South China Morning Post Publishers Limited
- June 14, 2008 | Author: Duncan A. W. Abate
- Law Firms: Mayer Brown JSM - Hong Kong Office; Mayer Brown JSM - Chicago Office
After nearly 7 years of litigation (arguing over HK$92,000) the Court of Final Appeal has given judgment in the case of Vincent v SCMP. This case is the leading authority in Hong Kong in relation to the right of employees to claim relief for unreasonable termination under Part VIA Employment Ordinance ("EO").
The CFA endorsed the decision of the Court of Appeal in overturning the first instance judgment of Muttrie J. In giving the leading judgment in the CFA Bokhary PJ sets out the correct approach to be adopted by a Labor Tribunal or Court in determining whether an employer has a "valid reason" under section 32K EO for terminating the employment of an employee due to the employee's conduct.
The correct approach to be adopted is:
- the conduct cited by the employer for the termination must be the true reason. If in reality there was some other reason why the employee was dismissed then the reason given would not be a "valid reason",
- the specified conduct must be relevant to the question of whether or not to dismiss the employee, and
- the conduct must not be trifling.
Bokhary PJ confirmed that there are no procedural requirements which an employer must follow in order to demonstrate a "valid reason" (contrary to the judgment of Muttrie J in the Court of First Instance).