In this article, Padraig Walsh who leads Bird & Bird's Employment team in Hong Kong recounts a recent summary dismissal case.
Grant Williams wrote an edgy client briefing for Jefferies Hong Kong, an investment bank, under the title, “Things that make you go, hmmm …” The pieces strayed from the humdrum norm of market analysis. So Jefferies put in place a review process before Mr Williams’ pieces were sent out. All went well. Clients loved it. Jefferies got very positive feedback. Then the issue of 7 December 2010 happened.
“… as I wake this morning to see gold surging, silver making another 30-year high (closing above $30 in the process) and the alleged ‘conspiracy’ in the ‘other’ precious metal creeping so close to the mainstream as to have a Hitler Video all of its own (warning: expletive sub-titles a-plenty), I am left wondering …”
Did you try to click through to the You Tube video content? For many, it’s human nature to click through – in spite of, or even because of, the warning. No, the video is not there. Once bitten, twice shy.
The review process failed for this edition of Mr Williams’ briefing. The editor never got a chance to review before the piece was issued to 900 clients, because his PA unwittingly sent it out first. This was not Mr Williams’ fault.
The “Hitler Video” was a satire using an excerpt from the movie, Downfall. The English sub-titles to the German dialogue parodied Jamie Dimon, the CEO of JP Morgan, in the context of a topical trading story of the day. The video went viral. Mr Williams picked up on it as it was trending that day. He inserted a link to it in his piece with a warning, and without any endorsement or other comment.
Jefferies went into crisis mode. Management had clearly clicked through to watch the video. Opinions took hold that Mr Williams had created the video, and the link was embedded in the briefing. Neither belief was checked. Both beliefs were false. Jamie Dimon was a senior industry leader. JP Morgan was an occasional business partner of Jefferies. Now JP Morgan and Jamie Dimon were being linked to Hitler in a publication issued by Jefferies to its clients. Again, an over-reaction quite removed from the facts. An apologetic email was sent to clients. Mr Williams was summarily dismissed the same day. No investigation. No explanation.
Mr Williams’ dismissal was a clear case of unreasonable termination. The Court found in his favour with relative ease. There was no misconduct. He did not endorse the Hitler video. He warned readers of its content. He did not issue the briefing. The mistake lay elsewhere. Jefferies acted in haste.
The people who ultimately decided that Mr Williams should be terminated did not give evidence at the hearing in Hong Kong. They were in New York. Jefferies’ witness evidence was given by people who were remote from the decision-making. This was commented on adversely and was one of the factors that resulted in over HK$15 million and indemnity costs being awarded to Mr Williams.
This is not an interesting case because of the legal principles involved. Employment law operates at the crossroads of law and behavioural science. The principles of employment law in Hong Kong are relatively settled. Humans are the random element – the free radicals, if you will. This case is a rare study of human nature and business culture that found its way into the Courts. This is its fascination.
Jefferies lost this case in Court. Although Jefferies acted in haste, there was no sign of repentance. Perhaps in Jefferies’ view, its business culture was at stake, and this was preserved. There was collateral damage. Mr Williams was very shabbily treated. Next time round, some points of process will be handled better by Jefferies … but would the ultimate outcome be any different?
Grant David Vincent Williams v Jefferies Hong Kong Ltd
This article is part of the Asia Employment Law Newsletter for November 2013