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12 November 2019 | by LexisNexis Hong Kong

Facts

In Law Ting Pong Secondary School v Chen Wai Wah [2019] HKCU 3489, a secondary school (the “School”) recruited a teacher (the “Teacher”) under an employment contract (the “Employment Contract”). On 17th July 2017, the Teacher was given:

  1. the Offer of Appointment as teacher (“Offer of Appointment”);
  2. the Conditions of Service for teachers (“Conditions of Service”); and
  3. the Letter of Acceptance to be completed by the Teacher (“Letter of Acceptance”).

On the same date, the Teacher signed the Conditions of Service and Letter of Acceptance. The Conditions of Service stated that the period of employment with the School would start from 1st September 2017 to 31st August 2018. If the Teacher were to terminate the Employment Contract, he would be required to give the School three months notice in writing or payment in lieu of notice or a combination of both. The Letter of Acceptance also stated that the Teacher understood the conditions of the Employment Contract that it “will come to immediate effect.”

On 22nd August 2017, the Teacher withdrew from the Employment Contract and did not make any payment in lieu of notice. The School sought to claim from the Teacher of HK$139,593.20 as payment in lieu of notice for failing to observe the termination clause in the Employment Contract.

The Court of First Instance ruled in favour of the Teacher based on the following analysis:

  1. Terms of Employment offered by the School

    According to JLT Specialty Limited v James Craven [2018] EWCA Civ 2487, in order to constitute an offer:

    1. there must be an expression of willingness to contract by the offeror; and
    2. such a willingness to contract is subject to specified terms.

    In the Offer of Appointment, it was stated that “if you wish to accept this offer of appointment in the above school under the conditions set out in the attached Conditions of Service for Teachers…” Applying this principle, the court held that the offer made by the School in relation to the Employment Contract was on the terms set out in the Conditions of Service but not the Letter of Acceptance. There was no provision in the Conditions of Service specifically referring to the Letter of Acceptance. If it were the School’s intention that the Employment Contract should come into immediate effect, the School could have put such terms in either the Offer of Appointment or the Conditions of Service. The means that the offer was only subject to the terms of the Conditions of Service, in which the period of employment was stated expressly as “[f]rom 1st September 2017 to 31st August 2018”.

  2. Acceptance of the School’s offer by the Teacher

    It is trite law that an acceptance of an offer has to mirror the offer made. According to Day Morris Associates v Voyce and Anor [2003] EWCA Civ 189, a contractual acceptance has to be a final and unqualified expression of assent to the terms of the offer. As the Letter of Acceptance did not form part of the offer, the Teacher could only accept the offer subject to the terms of the Conditions of Service only.

  3. Function of the Letter of Acceptance

    According to the Offer of Appointment, the Teacher would have to sign both copies of the Letter of Acceptance and Conditions of Service in order to accept the offer. The court agreed that the Teacher’s act of signing was merely to comply with the prescribed mode of acceptance stated in the Offer of Appointment, rather than adding further terms to the offer made by the School.

    For more information on the topic of contract law and employment law, please see:

    Annotated Ordinances of Hong Kong – Employment Ordinance Cap. 57

    Halsbury’s Laws of Hong Kong – Contract; Employment

    Butterworths Hong Kong Contract Law Handbook – Fourth Edition

    Butterworths Hong Kong Employment Law Handbook – Sixth Edition

    Ho & Hall’s Hong Kong Contract Law – Fifth Edition

    Hong Kong Employment Law Manual

    Hong Kong Employment Ordinance: An Annotated Guide

    Lexis Advance ® Hong Kong Practical Guidance – Hong Kong Employment

    For enquiries about the above publications, please contact your Account Manager via sales.hk@lexisnexis.com

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