The facts are clear, but the case complex as the CDNIS defence of their firing of former VP Nutting moves towards a possible trial.
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Presiding magistrate LC Cheng says, “I do not forecast a very conflicting factual dispute.” However, if this claim goes to trial that he will almost certainly preside over, he concedes it is “not an easy case.”
In a courtroom packed like a wedding, with Mrs Nutting’s supporters filling the right side of the courtroom, Mr Cheng dominated the discussion, advising both parties.
In the case wherein former Vice Principal (Primary) Kathy Nutting is the claimant against CDNIS for firing her neither notice nor compensation (see previous coverage here for details), the judge sees that the facts are clear, but the case complex. He spent no small amount of time advising the parties on witness call procedures and considerations should the case go to trial. On the issue of documentation, indicating the multiple binders at his side, he indicated more than once that it was ‘more than other cases.”
In essence, the School and Ms Nutting do not dispute that an email was sent to parents. Mr Cheng made it very clear that the facts were clear and undisputed. The tricky part would be the impact of the nature of the wording in the email sent on March 10, 2015.
Heart of the matter
The case rests on if this email missive was deserving of summary dismissal, which would then require one of two considerations.
“Not an easy case.” – Presiding Officer LC Cheng
If the content and sending of the email is considered to be worthy of summary dismissal, then the question arises as to whether or not the dismissal was carried out according to procedures as outlined in Ms Nutting’s contract. Questions have been raised about this by other magistrates in previous Labour Tribunal encounters.
If the action did not warrant summary dismissal, then the School would have lost the case. If it does go to trial, this magistrate indicated he would be the presiding authority. He may very well decide that the dismissal was warranted, and that it did follow procedure, either under the contract or the relevant Labour Ordinance provisions. Or not. He chose not to say too much on this topic in advance of a trial.
Chances for settlement
He indicated that a trial of four to five days would likely be required if the parties could not settle. Ms Nutting indicated she felt ‘’funny about the School spending money on lawyers when it should be spent on students, so I’m very willing to settle.” Mr Cheng seized on this statement to encourage both sides to see if they could settle.
They did indeed get a room for some time and returned to court. The magistrate heard that they would work towards a settlement. While he emphasised that there were two positions about money, the School suggested it was “not just about the money” and mentioned that there was a principle at stake. That principle went unarticulated at this instance.
Ms Nutting also suggested there was, in addition to money, the issue of a statement to be resolved. The judge indicated that the parties could find a resolution and sign documentation to that effect and settle the matter, as, in his words, “nobody wants to see my face again.”
“I’m very willing to settle.” – Kathy Nutting, claimant, former VP CDNIS
Alternately, they could have a settlement and ask for a court order to enforce the settlement. Mr Cheng indicated he could, in his role. enforce a court order for payment, but not other matters such as statements and communications.
The parties agreed to work towards a settlement. Mr Cheng made it clear that the time was for negotiating, but not inviting witness statements. However, if no resolution was likely, the claimant (Mrs Nutting) had until December 1 to make witness submissions in preparation for the next stage.
If the magistrate received no letters before December 4th, he would consider the case dismissed, supposing the parties had resolved the issue. If one party presented and the other did not, those in attendance would win the case. If no resolution was found, then on December 4th (9:15am) there would be a trial date likely set for January, keeping witness scheduling in mind.
He has run The Canadian Chamber of Commerce in Hong Kong, founded The Lion Rock Institute and has over 25 years engagement in media, politics, policy and community engagement.
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