洪偉志 v. 靖天物流有限公司

HCSA 17/2022

[2022] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 17 OF 2022

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 16310 OF 2020)

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BETWEEN

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Before: Hon Anthony Chan J in Chambers

Date of Hearing: 2 September 2022

Date of Decision: 2 September 2022

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DECISION

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1.This is the Defendant’s application for leave to appeal against the Award/Order made on 28 December 2021 (“Award”) by the Small Claims Tribunal dismissing its Counterclaim in this case. The typed up Reasons for Award was dated 23 August 2022 (“Reasons”)[1].

2.On 11 May 2022, the Defendant applied for leave to appeal on point of law pursuant to section 28(1)(a) of the Small Claims Tribunal Ordinance, Cap 338. On 30 May 2022, an extension of time for the leave application was granted in favour of the Defendant.

3.Leave was granted to the Defendant at the hearing to rely upon its “Amended Perfected Grounds of Appeal”, which consisted of 3 Grounds.

4.The background of this case can be succinctly stated. The central issue of the Counterclaim was whether there existed an employer-employee relationship between the parties.

5.It was uncontroversial that the Claimant was engaged as a delivery driver for the Defendant, a logistics company, during the period from September 2018 to October 2019.

6.On 28 October 2019, the Defendant received a complaint from a client alleging that the Claimant had overcharged a delivery by HK$20. The Claimant was informed by the Defendant that he was liable for a penalty of HK$600 pursuant to its Rules (司機派貨及收取運費工作守則) (“Rules”).

7.The incident led to the Claimant’s termination of the relationship with the Defendant on 28 October 2019. There was no dispute over the outstanding delivery charges of HK$27,216 incurred from 26 September 2019 to 28th October 2019 which was owed to the Claimant. The delivery charges constituted the claim of the Claimant before the Tribunal.

8.The dispute before the Tribunal in respect of the Defendant’s Counterclaim concerned: (a) the deduction of Penalty; and (b) whether the Claimant was required to give notice of termination or payment in lieu thereof, which was assessed by the Defendant at HK$36,546.50.

9.The Defendant’s case was that the Claimant was its employee and sections 5, 6 and 7 of the Employment Ordinance, Cap 57 was applicable to the termination of his employment.

10.Detailed reasons were given by the Tribunal on its finding that the Claimant was not an employee of the Defendant. However, the Penalty was found to be deductible from the delivery charges.

Ground 1: “The Tribunal erred in law in failing to acknowledge the possible existence of an employer-employee relationship between the parties by reason of the Claimant/Respondent being a casual worker for the Defendant/Appellant as characterised in Poon Chau Nam v Yim Siu Cheung [2007] 1 HKLRD 951.”

11.First and foremost, an appeal under s 28(1)(a) is confined to issues of law. Secondly, the finding by the Tribunal on the relationship between the parties was one of mixed facts and law.

12.Thirdly, I see no substance in this Ground of Appeal. The relevant evidence concerning the contractual relationship between the parties was considered at length by the Tribunal. The evidence did not suggest that the Claimant was a casual worker of the Defendant employed on as required basis. The law did not require the Tribunal to look at all the legal possibilities with no correlation to the evidence. No error of law on the part of the Tribunal has been demonstrated by the Defendant.

Ground 2: “The Tribunal erred in law by failing to pay due regard to the mandatory provision in respect of the imposition of penalties viz Exhibit D2, 司機派貨及收取運費工作守則 when determining whether an employer-employee relationship was in existence.”

13.First, the Rules were extensively considered by the Tribunal. Second, the fact that the Claimant had agreed to abide by the Rules, as found by the Tribunal, did not necessarily impact upon the issue of employer-employee relationship. It was simply a term of the contract between the Claimant and the Defendant.

14.Third, it was held in Poon Chau Nam that the modern approach was to examine all the features of the relationship of the parties against the background of the indicia of employment with a view to deciding whether, as a matter of overall impression, the relationship was one of employment. That was the exercise carried out by the Tribunal. There is no error of law in this regard.

Ground 3: “Further, the Tribunal having ruled in favour of the penalty by reason of the contractual undertaking entered between the parties, a fortiori, the Tribunal ought to have but failed to adjudicate on whether it is reasonable to imply a contractual term viz notice or payment in lieu thereof by reason of the duration of the parties’ contractual provision.”

15.With respect, it is trite law that a number of conditions must be satisfied before a term of contract would be implied. Amongst which are the conditions that: (a) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; and (b) the term to be implied must be so obvious that “it goes without saying” (see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266).

16.I am unable to see how these conditions were met by the Defendant. Why was it so obvious that the Claimant should give notice of termination of his contractual relationship with the Defendant? If he had to do so, what would the period of notice be? There was no basis for an implied term of notice of termination, and no error of law had been made by the Tribunal.

Disposition

17.For these reasons, this application is dismissed. 

Ms Athena Cheung, instructed by Francis Kong & Co, Solicitors, for the Defendant