CDNIS will not settle, even against the odds

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CDNIS steadfastly refused to settle claims against it related to its dismissal with no compensation of former Head of Primary, Dylan Hughes. It has been advised it has a steep uphill climb, but insists on a trial.

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“Thank you very much for coming!”

Presiding Officer David Chum (覃有方) welcomed the participants and, presumably, the supporters of Dylan Hughes, the former Lower School Principal, that packed the Labour Tribunal Court 9. One imagines it was appropriate given Mr Hughes had flown in from Angola, where is now a head of school, to press his claims against the Canadian International School.

The Presiding Officer did most of the talking to explain the relevant points of law and explain the risks involved in pushing for a trial, instead of settling out of court.

Mr Hughes claims amount to over $1million under six different categories including including wages due of notice, gratuity, sick allowance, severance pay and other measures as per his contract. The School is insisting it will pay nothing, claiming it had rights to fire Mr Hughes under Section 9 of the Employment Ordinance, specifically clause 2:  “The employee misconducts himself, such conduct being inconsistent with the due and faithful discharge of his duties.” The School is keen for a trial and indicated it would not settle any claims, but preferred to fight.

See how this works

The judge spent a considerable time explaining the law and even some history and aims behind it in a thoughtful and enlightening exposition. He explained that at this stage, a call-over, allowed him to examine the basics of the case and provide some guidance, a type of case conference. Participants were encouraged to speak from their hearts, using ‘heart words’, to provide more understanding and that if the case did go to trial, neither would the audio nor the transcripts of the trial be reviewed by the eventual trial judge.

That being said, the School’s representative played her now traditional role, stating the school’s case and explaining she essentially had to discuss any decisions with the Head of School, precluding any resolution. Mr Chum pressed for a meeting with a Labour Tribunal to examine settlement. Ms Tan claims the school believes their case is strong and only relented at the end of the proceedings to even meet with a Tribunal Officer after Mr Hughes indicated he was very willing to look at settlement options.

Pyrrhic: The price of winning

Indeed, the magistrate was clear in explaining the costs even of winning. With multiple appearances required before a trial started, probably in May at the earliest, Mr Hughes, now living in Angola, will have time and cost incurred by pursuing his claim. Mr Hughes was encouraged to offer something to ‘attract’ the school to negotiate, perhaps giving up some claims that could reduce the overall dollar amount of the claim.

The School’s perilous path

For the School, Mr Chum had quite a bit to say about the burden of proof. When dismissing a staff member without compensation under Section 9, the burden of proof lies on the defendant (here, the School) to prove they had just cause under the Section. He explained this is very difficult to prove and his research had revealed no cases quite like this one. While it may be desirous for cases that have widespread implication (eg. government doctors suing for overtime pay) to go to trial, this case had no such application.

“I was wrongly dismissed.” – Dylan Hughes, former CDNIS Lower School Principal

He went on to explain that most international schools would, he imagined, prefer to be in the newspapers for the achievement of their staff and students and he would prefer not to see them on page A1 on issues such as this. Perhaps not knowing how accurate he was, the School has indeed been on page A1 in journals such as The Globe and Mail, Canada’s national newspaper (Canada’s private school in Hong Kong a ‘dysfunctional mess’). Proceeding to trial would see documents and witnesses, including cross examination, open to the scrutiny of the public via Hong Kong’s free media.

Mediation, by contrast, is undertaken in private and is much less costly to all involved.

Mr Chum was careful to explain that he was not giving any indications as to the merits of the case or the validity of facts or arguments presented in the current documentation. However, his comments indicated that the School’s burden of proof was quite heavy under a law designed to protect employees from a firing without compensation that was “like a death penalty” for the employee in its one-sidedness and execution.

The costs could also be quite substantial beyond the claims by Mr Hughes, as a loss would incur costs for the expense of the trial. He explained that some may say, “Our school is very rich, we can pay the costs” but that it was a total waste of money. Appeals to higher courts would compound costs and increase the risk borne by both claimant and defendant.

Mr Chum repeatedly explained he did not want to rob the parties of their ‘right to negotiate’ and kept trying to suggest meeting with a Tribunal Officer to consider options, in the face of Ms Tan’s stubborn assertions that they had a strong case. While the easy thing would be for him to send the case to trial and thereby the problem of other judges, he had a duty to explain the responsibilities, risks and burdens.

While Mr Hughes stated he understood the cost to him in traveling for multiple court appearances preparing for a trial that would likely not happen until April 2016, he recognised the school was trying to wear him down. But, he was clear in his position: “I was wrongly dismissed.”

The two parties were to meet with a Tribunal Officer, but given Ms Tan’s normal operating procedure of needing to confer with the School’s administration, there was likely to be no change of position and the case will eventually come to trial at the Court of First Instance.

The School is currently facing at least four suits related to a massive wave of firings that took place over the course of last year. In at least three it is refusing all entreaties to settle and insisting to go to trial, even where prospects look dim.

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