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Article exclusively contributed by Allen & Overy

Dismissal for incompatibility with colleagues

Judith Wong, Senior associate, The Employment Law Group, Allen & Overy

Incompatibility with other colleagues may be a valid reason to dismiss an employee, as the judgement delivered on 2 July 2003 on Karchoud vs The Incorporated Trustees of the Islamic Community Fund of Hong Kong illustrates.

In this case, the employee had worked as the headmistress of the Muslim Community Kindergarten since 1998. When she was dismissed by the kindergarten in 2000, she made a claim with the Labour Tribunal for dismissal without a valid reason, under section 32K of the Employment Ordinance.

The tribunal decided that, due to her conduct, the kindergarten had a valid reason to dismiss her. It found that there were frequent disputes between the headmistress and the teachers in the kindergarten. Some parents also complained that she forced some teachers to sign a document containing 12 complaints about two teachers, assaulted a teacher and deliberately failed to show up when all the parents came to the kindergarten for school reports; they said that she then sent the reports to parents without the kindergarten supervisor's signature.

When the headmistress appealed, the court found that the Labour Tribunal's ruling was open to criticism. This was because it failed to consider the headmistress's evidence when it reached its decision and also failed to give her an adequate reminder of the importance of giving relevant evidence.

However, the court found that the decision to dismiss the headmistress was based on her incompatibility with other people in the school - rather than her specific conduct. The hostile atmosphere that grew out of quarrels and internal disharmony was not conducive to the benefit and welfare of the students. It decided that the incompatibility came under section 32K(e), which states that "any other reason of substance" can support a dismissal.

The court also noted the relevance of section 32L. This requires the circumstances of the claim, including the length of employment, to be taken into consideration when the existence of a valid reason for dismissal is being assessed. Steps taken by the school included looking into the matter, giving fair warnings and paying more sickness allowance than the headmistress was entitled to. As a result, the court decided that the decision to dismiss was within the range of reasonable responses that a reasonable employer would have adopted - and therefore satisfied section 32L.

What this case means for you
- Dismissing an employee who is incompatible with other colleagues in order to restore harmony amongst the workforce can come under section 32K(e) and may therefore be lawful.

- Before an employer dismisses someone based on incompatibility, it is not always necessary to determine who was right and who was wrong in respect of allegations among employees. However, the court may expect an employer (especially one of a significant size) to take reasonable steps to try to improve the relationship, such as investigating the matter to see if an improvement can be made and giving fair warnings, before resorting to dismissal.

Q&A on valid reasons for dismissal
Q1 What are other valid reasons for dismissal?
A1 A1: Section 32K of the Employment Ordinance says that an employer needs to show that a variation of the terms of a contract of employment is due to:
(a) the employee's conduct;
(b) the employee's ability or qualifications to perform the kind of work he or she was employed to do by the employer;
(c) the employee's redundancy or other genuine operational requirements of the employer's business;
(d) the fact that, in relation to the employment, the employee or the employer (or both) would be contravening the law if the employee continued to be employed by the employer or continued without this variation of the terms of his or her contract of employment; or
(e) any other "reason of substance", which, in the opinion of the court or the Labour Tribunal, provides a strong enough reason for a variation of the terms of the contract of employment.

Q2 What remedies are available for an employee who has been dismissed without a valid reason?
A2 The remedies of "re-engagement", "reinstatement" or "terminal payment" are available to employees who have been dismissed without a valid reason.

Q3 How can I complain about dismissal without a valid reason?
A3 You should go to the Labour Department nearest to your place of work, in order to make an official complaint. The Labour Tribunal provides a quick and simple way to settle employment disputes. It is also a cheap way to resolve disputes, as no lawyers are involved. As an investigating officer is present, both parties can obtain free, informal advice about the merits of the dispute.


Taken from Career Times 05 March 2004

(Last review date: 23 August 2013)


Disclaimer: The opinions expressed in this article are those of the contributor.

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