Termination of employment of an injured worker

by Bucky Chan, partner, Litigation Department, Woo Kwan Lee & Lo

Article exclusively contributed by Woo Kwan Lee & Lo

The Court of Appeal examined the circumstances under which an employer might dismiss an employee that had been injured in the course of duty.

In July 2003, Mr Ngan, who was employed by a bus company, sustained a neck injury while on duty and was entitled to employees' compensation under the Compensation Ordinance.

Some two years later, the Labour Department's Assessment Board issued a certificate of assessment (16F certificate) in accordance with section 16D(5) of the Employees' Compensation Ordinance(ECO) which stipulates that the Assessment Board "shall assess the period of absence from duty necessary as a result of the injury". The bus company received the certificate on 30 May 2005. However, on or before this date, Mr Ngan furnished a notice of objection against the assessment.

The next day, on 31 May 2005, the bus company refused Mr Ngan's request for resuming his duties as a bus driver saying Mr Ngan had failed to provide a medical certificate proving his fitness to work.

Mr Ngan immediately instituted a Labour Tribunal claim for compensation for wrongful dismissal against the bus company under the Employment Ordinance (EO). He claimed he was entitled to compensation under the EO because a clause in the ECO prohibits employers from dismissing their injured employees before the issuance of a 16F certificate or a certificate of review of assessment (16G certificate).

On 22 September, 2005, a 16G certificate was issued in response to Mr Ngan's objection. The bus company had therefore dismissed Mr Ngan after the issuance of the 16F certificate, but before that of the 16G certificate.

The court's ruling

In the first hearing before the Labour Tribunal, the bus company claimed it was entitled to terminate Mr Ngan's employment following the issuance of the 16F certificate. The company said Mr Ngan was therefore not entitled to compensation under the EO.

Mr Ngan appealed to the High Court, where the judge ruled in his favour, stating that the bus company acted wrongly in terminating Mr Ngan's employment before the issuance of the 16G certificate.

The bus company then took the matter further to the Court of Appeal. The court examined under which circumstances, if the ECO was interpreted properly, the bus company would have been entitled to terminate Mr Ngan's employment, considering that a 16F certificate had been issued.

Section 48 of the ECO provides that an employer may not terminate an employee's employment before a commissioner issues a certificate under section 16A(2) to the employer and the employee, or the employer had entered into an agreement under section 16CA(1) with the injured employee. In addition, an employer may not terminate an employee's employment before an Ordinary Assessment Board or a Special Assessment Board issues a certificate under section 16F or 16G(3) to the employee, the employer and the Commissioner, whichever occurs first.

At first glance, it appears that the legislation allows for the employer to dismiss the injured employee after either the 16F or the 16G certificate had been issued, because of the phrase "whichever occurs first". However, a 16F certificate always precedes a 16G certificate, as the latter is the result of a review of the former. Therefore, the phrase "whichever occurs first" becomes superfluous.

The Court of Appeal dismissed the bus company's appeal. The most interesting aspect of the judgment was that the three Appeal Court judges had differing reasons for their decisions.

Mr Justice Cheung said since the employee has a statutory period of 14 days to lodge an objection, the employer was not entitled to terminate his employment during this time. If the employer did not receive any notice of objection during this period, he could then proceed to terminate the employment.

Meanwhile, Mr Justice Tang, dissenting, said that under the ECO an employer had to wait for the issue of an 16G certificate if he knew that the employee had objected to the 16F certificate on the basis that not only was he not suffering from any permanent disability, but had also recovered from his temporary incapacity. Furthermore, he said that an employer was not allowed to terminate the employment if the employer objected to the 16F certificate on the basis that there was no permanent disability but that the employee's temporary incapacity had not ended.

Mr Justice Lam, on the other hand, interpreted the ordinance as saying that an employer must wait until the issue of a 16G certificate if he had not terminated the employment before being notified that the employee was objecting to the assessment.

Q & A on termination of employment
Q1 Under which circumstances is an employer allowed to dismiss an injured worker?
A1 The employer must wait for 14 days after the 16F certificate has been issued. If the employee has not raised an objection to the certificate assessment by then, the employer may terminate the employment. Otherwise, the employer has to wait until the 16G certificate has been issued.

Q2 What can an employer do if he wants to dismiss the employee straight away?
A2 The employer should terminate the employment as soon as the 16F certificate is issued, to avoid the employee raising an objection first. However, there is uncertainty about whether the employer is obliged to withdraw the notice of termination, should an employee raise an objection after the notice of termination is served.

Taken from Career Times 07 November 2008, p. B15

(Last review date: 23 August 2013)

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

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