No easy way out in CDNIS teacher Labour Tribunal hearing

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In a Labour Tribunal hearing, CDNIS defended itself against a claim of wrongful dismissal and bought time to introduce legal briefs to support its cause, lacking evidence to justify summary dismissal. Likewise, Mr Lalwani has time to strengthen a case for claims that may suffer from overreach.

The Canadian International School of Hong Kong (CDNIS) was unsuccessful today in its attempts to move its Labour Tribunal case to the High Court and failed to show cause for summary dismissal against Sanjay Lalwani, the former CDNIS teacher who learned he may only be entitled to the 4 months worth of exit claims detailed by his contract, not its full value to expiry.

Presided over by judge Daniel Tang (鄧少雄), the hearing began with the School – represented by Director of Business Administration Eunice C. Y. Tan (陳泇沇) – maintaining that the School was justified in summarily terminating the contract of the plaintiff, Sanjay Lalwani. Tan argued that the school had the right to terminate Lalwani’s employment without prior notice or subsequent severance payment due to his failure to disclose, at the start of each contractual period, a past allegation of sexual harassment while teaching at the English Schools’ Foundation Kennedy School in October 2003. The incident resulted in no charges. No proof of any such incident occurring was provided by the school when asked by the judge if they had any such evidence.

“It was ‘the duty of the School’ to provide evidence for a ‘serious mistake’ committed by Lalwani.”

However, when asked by the judge if the School had “expressed [explicit] terms” in its employment contract requiring employees to disclose past allegations of criminal offence, Tan denied, only adding that it was the School’s “practice” and the employee’s obligation to do so. She could show no evidence of practice when asked for it by the judge.

The judge then concluded that since Lalwani’s failure to disclose his past was not a breach of contract, it was “the duty of the School” to provide evidence for a “serious mistake” committed by Lalwani during his contract to justify his summary dismissal without prior notice or severance payment. At the request of the judge, Tan confirmed that the School was aware, prior to the summary dismissal, that Lalwani had been arrested and unconditionally released by the police earlier this year, and that Lalwani had no criminal conviction concerning the alleged incident in 2003. Tan eventually stated that the School required “at least three weeks” of additional time to submit further legal briefs in an attempt to strengthen their case.

The School also asked to advance the case up into the High Court, a request that was opposed by Lalwani and ultimately denied by the judge, who said that the case was still “under the jurisdiction of the Labour Tribunal.”

Lalwani said that his termination was “wrongful” and had expected to “return to work”, but after conferring with his lawyers it was determined that reinstatement was not possible. Thus, he demanded that the School not only compensate him for the four months worth of salary required by law in a normal termination, but also compensation for the rest of his contract, amounting to $1.4 million HKD in total. The judge, however, challenged this claim and stated that even in a normal termination, according to the contract, only four months worth of exit claim salary can be compensated.

In the end, the judge decided to adjourn the hearing until October 2, 2015, giving both parties 4 weeks to submit their respective legal advice – the School will submit evidence to justify summary dismissal of the plaintiff and the request to move the case into the High Court, while Lalwani will submit evidence to support his claim to $1.4 million HKD of compensation. However, the judge advised both parties to negotiate through their lawyers and settle outside of court, as a prolonged court case would drain time and resources from the School and Lalwani.

Following the alleged incident of sexual harassment in 2003, Lalwani was suspended and his contract was not renewed at the Kennedy School in 2004. CDNIS hired Lalwani in 2008 as a teacher of the Lower School. After renewing his contract five times, the School said in an email response to the South China Morning Post in October 2014 that “a 23-year-old had intended to lodge a complaint with the Hong Kong police alleging sexual misconduct.” Lalwani was then suspended and summarily dismissed in April 2015. The School could not provide evidence of the October 2014 complaint today, but may do so in the future.