Ma Chi Hung v. Baccarat Far East Ltd
Read the full judgment text of HCLA 7/2016 on BabelCite. This HCLA judgment was delivered on 31 May 2016.
1. This is an application by Mr Ma for leave to appeal against a decision of Mr Andy Cheng, Presiding Officer of the Labour Tribunal (“ the Tribunal ”) made on 14 March 2016 (“ the Review Decision ”) whereby the Presiding Officer, after a review hearing held on 22 February 2016, maintained his dismissal of Mr Ma’s claim on 7 October 2015 (“ the Decision ”) save that the costs payable to Barrarat Far East Limited (“ Barrarat ”) was reduced from HK$67,085 to HK$42,425.
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HCLA 7/2016 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE LABOUR TRIBUNAL APPEAL NO. 7 OF 2016 (ON APPEAL FROM LBTC 1172 OF 2014) ____________
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_____________ D EC I S I O N _____________ Introduction 1.This is an application by Mr Ma for leave to appeal against a decision of Mr Andy Cheng, Presiding Officer of the Labour Tribunal (“the Tribunal”) made on 14 March 2016 (“the Review Decision”) whereby the Presiding Officer, after a review hearing held on 22 February 2016, maintained his dismissal of Mr Ma’s claim on 7 October 2015 (“the Decision”) save that the costs payable to Barrarat Far East Limited (“Barrarat”) was reduced from HK$67,085 to HK$42,425. 2.The Reasons for Decision in respect of the Review Decision was written in the Chinese language. The proceedings below and here were conducted in Cantonese. However, in view of the fact that the relevant employment contract, the emails which Mr Ma alleges gave rise to a variation of the contractual terms and the Grounds of Appeal were written in English, I find it convenient and appropriate to render my decision in English. This court can arrange this Decision to be explained to Mr Ma in Cantonese by a court interpreter should Mr Ma require such assistance. 3.This application is made under section 32(1) of the Labour Tribunal Ordinance, Cap 25. Mr Ma accepts that the application can only succeed on the grounds that the awards/orders of the Presiding Officer are either erroneous in point of law or outside the jurisdiction of the Tribunal. Accordingly, challenges as to findings of credibility and facts are not within the permissible ambit of appeals from the Tribunal. The claim 4.Mr Ma entered into a written employment contract with Baccarat on 7 December 2011 (“the Contract”). He agreed to be employed by Baccarat as Area Sales Manager commencing on 1 January 2012. The Contract was terminated in late March 2014. He instituted proceedings against Baccarat in the Tribunal in April 2014 and his claim is for arrears of salary from 1 January 2013 to 30 March 2014 in the total sum of HK$30,000, year-end bonus for the year ending 31 December 2012 in the sum of HK$32,000 and commission in the sum of HK$1,236,894.00. 5.Mr Ma’s claim is based on certain alleged terms of the Contract varied subsequently. He claims that the Contract was varied by an exchange of emails correspondence between Ms Chen on behalf of Baccarat and him on 15 and 16 April 2013. He alleges that pursuant to such variations his salary was increased to HK$34,000, his year end bonus was agreed to be HK$32,000 and his entitlement to a commission calculated at 2% on deals secured by Mr Ma for Baccarat (collectively “the Variations”). 6.The following terms of the Contract were of relevance:
7.Mr Ma initiated the exchange of emails on 21 March 2013. First, he sent to Ms Chen on that day an email (“Email 1”) in the following terms:
8.Mr Ma sent another email to Ms Chen on 15 April 2013 (“Email 2”). The relevant contents of Email 2 are as follows:
9.Ms Chen replied by way of an email dated 16 April 2013 to Mr Ma (“Email 3”). Its relevant contents are as follows:
10.The last email which Mr Ma relies on to establish the Variations is the one he sent to Ms Chen on 30 April 2013 (“Email 4”):
11.Mr Ma contends that by reason of the exchange of the emails, Baccarat and he came to an agreement on the Variations. Despite the Variations, Baccarat still paid him the original basic salary plus guaranteed commission in the sum of HK$32,000 per month and hence he should be entitled to the differences in the sum of HK$2,000 from January 2013 to 30 March 2014. Findings of the Presiding Officer 12.The Presiding Officer went through all the four emails in the Reasons for Decision. He applied the basic contractual principles to determine whether an agreement was reached between the parties. He concluded that there was no agreement on the Variations at all. He further accepted the testimony of Ms Chen to the effect that after receipt of Email 4, she already told Mr Ma that there might be changes in the management of Baccarat and hence any further discussion about the adjustment of his remunerations had to be shelved pending the completion of the managerial changes. 13.The Presiding Officer also relied on the fact that Mr Ma did not raise any queries about the unchanged salary payments despite the Variations to confirm his findings that no Variations was agreed at all. He further pointed out that the lack of documentation of the Variations was unreasonable and on balance of probabilities, the version of Ms Chen was more probable. Grounds of appeal 14.Mr Ma puts forth 8 grounds of appeal. He argues that the Presiding Officer construed the word “package” in his email incorrectly. He contends that a package should not be mistaken for a package deal. He further points out that clause 17.2 of the Contract provided that all contractual terms between the parties are severable. Hence, he submits that all the terms of his proposal is severable and each of them could be independently accepted by Baccarat. 15.Mr Ma further argues that the Presiding Officer overlooked the fact that there was an existing and binding employment contract between the parties on foot when the Variations were under discussion. He says under those circumstances, the usual contractual principles relating to the creation of an agreement do not apply. 16.Mr Ma next alleges that the Presiding Officer misunderstood the nature of his commission under clause 5.1 of the Contract and his commission was mandatory and not subject to any discretion. 17.Lastly Mr Ma complains that the Presiding Officer wrongfully refused to deal with his submissions in the review hearing on the credibility of Ms Chen by reason of the fact that he did not state such grounds in his Form 13. Mr Ma opines that the Presiding Officer did not properly exercise his power under section 31 of the Labour Tribunal Ordinance. Discussion 18.In the first place, whether the Variations were agreed by the parties is a matter of fact. I agree entirely with the analysis of the Presiding Officer and his factual finding cannot be faulted. I too agree with him on a plain reading of Emails 1 to 4, obviously no agreement was reached. Mr Ma’s proposal remained to be a proposal and had no contractual effect. So did the final proposal of Ms Chen in Email 3. 19.Mr Ma says that Ms Chen in Email 3 already agreed to the commission and bonus system proposed by him previously. Though his proposed basic salary adjustment was not accepted in that email, his proposal albeit described as a package in Email 1 and revised in Email 2 indeed consisted of severable terms. Hence he argues that at the very least, he should be entitled to benefits under the agreed commission and bonus system. 20.I cannot agree with him. In Email 3, Ms Chen expressly put forth the terms as the final proposal. The characterization of “package” in respect of Mr Ma’s own proposal in Email 1 is irrelevant to the consideration of the final proposal of Baccarat though I should make it clear that I disagree with Mr Ma’s interpretation. In any event, I am of the view that the three terms in the final proposal were to be accepted as a whole. All three of them related to the monetary benefits to which Mr Ma might be entitled under the Contract and they were inter-related. Undoubtedly, Baccarat came up with these terms in the final proposal after taking an overall view of the matter. Mr Ma could not cherry pick any of them and opt against the others. Email 4 cannot possibly be construed to be an acceptance of the final proposal. 21.It should not be overlooked that the Presiding Officer accepted that after receiving Email 4, Ms Chen did tell Mr Ma that they would further discuss the adjustment of his remuneration after the change of the management. Mr Ma did not advance any ground to overturn this factual finding. In light of Ms Chen’s evidence, the factual conclusion of the Presiding Officer must be correct. 22.I have read the email of Ms Chen dated 30 October 2013 and it cannot possibly assist Mr Ma at all. There, Ms Chen did not say anything pointing to an agreement of the Variations. 23.The Contract was indeed still in existent when the emails were exchanged and the parties made their proposals therein. This does not mean that the established contractual principles ceased to be applicable to the issue as to whether there was a valid agreement to vary the existing terms of the Contract. I see no substance in Mr Ma’s contention. 24.Lastly, I agree with the Presiding Officer that in Mr Ma’s Form 13, he merely set out the grounds to review the Decision in respect of costs only. Mr Ma is unfair in his criticisms about the Presiding Officer. Far from ignoring his submissions on the credibility of Ms Chen, as can be seen in the Reasons for Decision, the Presiding Officer conscientiously considered Mr Ma’s all other submissions relating to his claim. I see no merit in this complaint at all. Conclusion and Order 25.For the reasons given above, Mr Ma fails to discharge the threshold onus to show an arguable case that the Review Decision and/or the Decision of the Presiding Officer is either erroneous in point of law or outside the jurisdiction of the Tribunal. I dismiss his application for leave to appeal accordingly. 26.I make no order as to costs.
The claimant, unrepresented, appeared in person |