In the context of employment relationships, employers and employees often say or do things in the heat of the moment without really meaning what they have said or done. This is what happened in the recent case of Lam Sin-Yi Sindy v. Leung King-Wai William t/a William KW Leung & Co (HCME 4/2019  HKCFI 2525) which involves an employer who concluded that his employee had resigned, after taking the employee’s words and actions expressed impulsively in a moment of anger at face value.
The claimant (Employee) was employed by the defendant (Employer). In the afternoon of 18 September 2019, the Employee submitted a leave application to the human resources and administrative manager (Manager) to take “no pay leave” for half a day on the following day to take care of her mother (Leave Application). The Manager approved the Leave Application. However, when the Employer found out about the Leave Application in the morning of 19 September 2019, the Employer texted the Employee via a WhatsApp group which included the Manager (WhatsApp Group), stating that he had not approved the Leave Application, and that the firm would not do so short of 7 days’ notice except for emergency situations. In the next message, the Employer said that he was considering whether the Employee had been absented from work without cause and if so,she would have to leave immediately. In a third message, the Employer informed the Manager via the same WhatsApp Group that one week’s notice was required to terminate the Employee during her probation (collectively, the Morning Messages).
At 1:57 pm on the same day, the Employee responded in the WhatsApp Group (1:57 Message), pointing out that leave applications, according to the Employer’s instructions, were to be made to the Manager who would then submit it for the Employer’s signature. The Employee queried whether 7 days’ notice was required even for no pay leave application, and asked the Employer if he was treating her as being absent without cause such that she was to leave immediately. She alleged that she had been prepared to return to work in the afternoon, but “it did not matter” if she should just pack up and collect her final pay cheque.
The Employee returned to the office at around 2 pm to seek clarification from the Employer, but was told that the Employer was not in the office. The Employee was then asked to pack up and leave.
The Employee did not return to work after that, and no further communication was exchanged between the Employer and the Employee aside from the collection of final wages. When the Employee received her terminal payments later on in the month, she noticed that the Employer had deducted a sum as payment in lieu of the 7 days’ notice.
The Minor Employment Claims Adjudication Board (Board) dismissed the Employee’s claim for the reason that before the Employer had decided whether the Employee was absent from work without cause, the Employee had herself already indicated in the 1:57 Message that she would return to the office to pack her things, return office keys, and collect her pay cheque. Although the Employee had not used the word “resign” in any of her messages to the Employer, the contents of her text messages and her conduct had demonstrated that she had terminated her employment by resignation. Further, the Board found that the Employer had intended to give the 7 days’ notice in the Morning Messages. Given the Employer did not summarily dismiss the Employee in the Morning Messages, the Employee’s 1:57 Message that she would pack her things was a resignation by conduct. As the Employee had not given 7 days’ notice of termination, the Employer was entitled to deduct the payment in lieu of notice.
The Employee appealed to the Court of First Instance (CFI). The question of law to be decided was whether in determining the facts and construing whether the words and actions of the Employee constituted resignation, the Board should not have merely considered the literal meaning of the words used by the Employee, but should have considered the entire context and circumstances of the dialogue between the Employee and the Employer.
It is trite law that the question of whether there is repudiation of contract is fact-sensitive and depends entirely on the context of each case. The court recognised that there are special circumstances where words or actions may not have been uttered in clear and unambiguous terms but expressed in anger or in the heat of the moment. In those circumstances, there may be a real question as to whether the words were really intended to mean what they appeared to say.
In deciding whether or not the Employee had resigned on 19 September 2019, the Board should have considered not only what words were used in the 1:57 Message, but also the entire context in which the WhatsApp messages were exchanged between the Employer and the Employee, and whether that evinced a clear intention to resign and terminate the employment.
The CFI found that the Employee was aggrieved and her messages and statements were impulsive and made in a moment of anger.
Further, the Employer did not, through the Manager nor the receptionist, correct the Employee’s belief that she had been dismissed; nor was the Employee given an opportunity to clarify her intentions. There was no resignation by the Employee, she was simply told to pack and leave, which effectively meant she was dismissed.
Disagreements are unfortunately inevitable in the workplace, and acrimonious exchanges between an employer and an employee uttered impulsively and emotionally in the heat of the moment give rise to doubt as to whether the parties really mean what they say.
As a matter of prudence, therefore, an employer who receives a termination notice in the heat of a moment should take time before accepting it at face value, and ascertain if termination was really intended by the employee or not. If the employer does not do so and simply accepts an employee’s purported resignation at face value and treats the employment as terminated, the employer may find itself falling foul of the law.