Read the full judgment text of CAMP 184/2020 on BabelCite. This Court of Appeal judgment was delivered on 18 May 2021 before Kwan VP, Yuen JA.
Civil procedure – Minor Employment Claims Adjudication Board – application for leave to appeal under section 33(2) of the Minor Employment Claims Adjudication Board Ordinance, Cap 453 – whether question of law of general public importance – construction of section 32(2) – prohibition on reversing or varying 'any determination made by the Board on questions of fact' under section 32(2)(i) – power of court to 'draw any inference of fact' under section 32(2)(a) – distinction between primary facts, secondary facts and inferences – question of mixed law and fact – whether court below erred in declining to remit to Board – employee claimed HK$4,316.67 deducted as seven days' wages – employer contended the employee had resigned without giving the seven days' notice required by her employment contract – Board found employee had resigned and dismissed her claim – Court of First Instance judge (Mimmie Chan J) granted employee leave to appeal on the question whether, in determining whether words and actions amounted to resignation, the Board should have considered the entire context and not merely the literal meaning of the words – judge on paper appeal held that the words and conduct were ambiguous and could not objectively be construed as resignation, that there was no effective acceptance of any repudiation, and that the employee was effectively dismissed – the Board had not contested the legal error – employer now sought leave to appeal to the Court of Appeal, framing the question as whether the determination on 'resignation' was a determination on a question of fact or law for section 32(2)(i) – held (Kwan VP, Yuen JA concurring), dismissing the application: the determination on resignation in this context was a question of mixed law and fact (per Wong Yin Fong & Ors v ISS Hong Kong Services Ltd [2005] 2 HKLRD 648 at §62) – the prohibition in section 32(2)(i) applies only to interference with primary findings of fact, not to findings of secondary fact or to inferences drawn by the Board (per Todd v Adams [2002] CLC 1050; Chok Kin Ming v Equal Opportunities Commission [2017] 2 HKLRD 521 at §68) – section 32(2)(a) empowering the court to 'draw any inference of fact' reinforces this construction – the judge had not reversed any primary finding of fact and was entitled to substitute her own conclusion on the inference (per Lee Tim v Chow Suk Ching (t/a Wang Chong Co) [1997] 1 HKC 470) – remittal was unnecessary because no further investigation or amplification of facts was required and it would be unfair to give the employer a second bite of the cherry (per Kingston v British Railways Board [1984] IRLR 146 at §57) – the question raised was not a question of law of general public importance (per Sun Min v Hong Kong Ming Wah Shipping Co Ltd, CACV 37/2004; Kelly v Cathay Pacific Airways Ltd [2007] 4 HKLRD 881) and the discretion to grant leave was in any event declined given the disparity in resources of the parties and the policy of disposing of small-sum employment disputes speedily and inexpensively – application dismissed with no order as to costs as the employee had incurred none.
Legal issues: Characterisation of 'resignation' determination under s.32(2)(i) Cap 453 · Whether the application raises a question of law of general public importance under s.33(2) Cap 453 · Whether the Court of First Instance erred in declining to remit the matter to the Board
Outcome: Application for leave to appeal dismissed.
Cited by 1 case · Cites 5 cases