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Article contributed by Allen & Overy

Keeping it civil in the workplace

by Susana Ng, senior associate, Allen & Overy

There have been many instances around the world where abusive language used by employers or employees have resulted in dismissals or lawsuits.

The issue whether uncouth language used by an employer could justifiably lead to a claim for constructive dismissal (where an employee resigns because his employer's actions have made it untenable to continue working there and he effectively considers himself to have been fired) was considered in the recent case of Chang King Leung vs Better Hong Kong Movement Association Limited (2010). The matter was a Labour Tribunal appeal in the High Court.

The case revolved around a dispute between the claimant, Mr Chang, and a former Legislative Council candidate, Yuan Tai-ming (represented by the defendant company). Mr Chang started working as an assistant to Dr Yuan in September 2007 for an agreed employment period of one year. On 7 August 2008, he was told by his employer's manager that Dr Yuan's qualification to run for the Legislative Council had been annulled because of his Canadian citizenship. He responded that he would in that case use seven days of paid annual leave and leave his job on August 20, not renewing his contract. However, soon afterwards, the manager Della Mak gave Mr Chang a cheque as payment for the period from 1 August to 7 August, and told him he was free to leave straight away.

The above developments led to a face-to-face conversation between the parties, which culminated in a heated debate and the subsequent dispute. The claimant told the tribunal that he had asked Dr Yuan if he was firing him. He said Dr Yuan had denied doing so, stating that he merely wanted to allow him to leave the job early if he wanted to, but that Dr Yuan became agitated in the course of the argument and said to Mr Chang and his colleague that "I feel the two of you should piss off".

Dr Yuan disagreed with this version of events, saying that when he told Mr Chang that he could continue working, he had merely warned him to be more punctual in future and then said: "I'm pissed off at you two. You two can do much better."

In a subsequent email, Mr Chang expressed his anger about the use of the term "pissed off". Although he reported for work the next day, he resigned a few days later and then lodged a claim with the Labour Tribunal, claiming constructive dismissal.

Not abusive

The Labour Tribunal presiding officer ruled that the phrases "pissed off" and "piss off" had two different meanings, with the former being an expression of anger and the latter used to "ask someone to leave". He accepted Dr Yuan's version, finding that he had merely expressed his anger with the words "pissed off" and did not intend to use the term to ask the claimant to leave. He also ruled that the term had not amounted to abusive language.

Mr Chang appealed against the ruling, claiming that he had been subject to constructive dismissal by Dr Yuan, since Dr Yuan had breached "the very root of the employment contract" or an "implied term of relationship of trust and confidence" by using the term "pissed off".

The court dismissed the appeal, agreeing with the tribunal and stating that, objectively speaking, the comment made by Dr Yuan could not amount to a breach of the root of the contract or a breach of trust and confidence.

Q & A on constructive dismissal
Q1 What are some typical scenarios where employees may be able to claim constructive dismissal?
A1 An employee may have a claim for constructive dismissal if his employer tries to unilaterally impose new and usually worse employment conditions on him, such as demotion, relocation to a distant workplace or reduction of remuneration. If the employment contract does not provide for these variations and the employer attempts to introduce them, an employee can treat that behaviour as a repudiatory breach of contract by the employer and resign, claiming constructive dismissal.

An employment contract also contains an implied term of mutual trust and confidence between an employer and employee. If the employer acts in a way that undermines or destroys this trust and confidence, for example, through an unfounded fraud allegation or by humiliating the employee in front of colleagues, and this breach is serious enough, an employee may resign and claim constructive dismissal.

Q2 Can verbal abuse give rise to a claim for constructive dismissal?
A2 Generally, a case involving a claim for constructive dismissal based on verbal abuse requires a much more severe form of verbal abuse than in the matter under scrutiny. For instance, in the UK case of Isle of Wight Tourist Board v Coombes (1976), an employer who referred to an employee as "an intolerable bitch" and also thumped her desk was found to have breached the very root of the employment contract.

The opinions expressed in this article are those of the contributor

Taken from Career Times 2 July 2010, B7

(Last review date: 23 August 2013)


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