Kam Wing Yan v. Colman Li Consulting Ltd

HCLA 8/2022

[2022] HKCFI 3377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 8 OF 2022

(ON APPEAL FROM LABOUR TRIBUNAL

CLAIM NO 956 OF 2021)

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BETWEEN

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DECISION

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1.This is the Defendant’s application for leave to appeal against the Award made against it by the Presiding Officer of the Labour Tribunal dated 28 July 2022. The Reasons for the Award was handed down on 20 October 2022.

2.The original 3 grounds for this application had been jettisoned. In this application, the Defendant seeks to rely upon 5 grounds of appeal set out in an affirmation of its solicitors filed on 26 October 2022.

3.It is trite that an application of the present nature is largely confined to points of law: see s.32(1) of the Labour Tribunal Ordinance, Cap 25 (“Ordinance”) and Wai Mei Lai v Viya Pramita, HCLA 3/2010, 28 June 2011, [16] for the applicable principles.

4.I regret to say that the 5 Grounds before the court are lengthy, unfocused and difficult to understand. In truth, they reflect the dissatisfaction of the Defendant with the factual findings against it made by the Tribunal and its attempt to overturn such findings. None of the Grounds constitutes a legitimate premise for this application.

5.The case before the Tribunal was quite simple. The Claimant was a senior sales representative employed by the Defendant, which was an insurance agent. On about 27 October 2020, there was allegedly an incident of misconduct by the Claimant. As a consequence, according to the Defendant, the parties had agreed to vary the terms of the Claimant’s employment in return for maintaining her employment. In short, the remuneration package of the Claimant was materially downgraded and she was put on probation. Those terms were set out in a Note which was given to the Claimant by her superior.

6.The Defendant alleged that on 20 November 2020 further misconduct was found against the Claimant, and a 7-day termination notice was issued to the Claimant on 23 November 2020 putting an end to her employment on 30 November 2020.

7.The key issue before the Tribunal was whether the terms of employment were validly varied with the parties’ consent.

8.The Reasons for Award is a succinct document. The Tribunal’s reasons for rejecting the Defendant’s case were clearly stated. In short, (i) the terms of the Note suggested that there was no agreement by the Claimant to the terms therein contained; and (ii) having evaluated the evidence of both sides, the Tribunal accepted the evidence of the Claimant that she did not agree with the allegation of misconduct against her and, contrary to the Defendant’s case, would not have asked for any reduction to her remuneration (to save her job).

9.Ground (1) seeks to challenge the factual finding that there was no agreed variation of the terms of employment. Prima facie, such challenge is illegitimate. In respect of the submission of Mr Au, who appeared for the Defendant, that there was an agreement by conduct on the Claimant’s part to the Note because she had continued to work after receiving the same, I find it fanciful and quite unfair to a party in a weaker bargaining position. It is not supported by any authority and is rejected as unarguable.

10.With respect, much of the submissions made on behalf of the Defendant are plainly unmeritorious and do not require to be dealt with specifically, eg, the suggestion of estoppel against the Claimant. There are other points in respect of which the relevance is not at all clear, eg, the increment of the Claimant’s salary previously without having the new salary recorded in a written agreement. These observations apply to all the Grounds.

11.Ground (2) suggests that the Tribunal had failed to duly investigate relevant matter, contrary to its duty under s.20(3) of the Ordinance. I see nothing but a disguised challenge to the Tribunal’s factual findings.

12.It should be pointed out that whilst the Defendant challenges the non-admission as evidence at the hearing below certain WhatsApp messages between the Claimant and her husband, those messages (C-14) were not even included in the hearing bundle to enable the court to assess their relevance.

13.Ground (3) concerns whether there was any breach of the provisions of the Insurance Ordinance, Cap 41. I am unable to see any real relevance in this complaint. The breach of the Insurance Ordinance or otherwise was not an important issue before the Tribunal.

14.Ground (4) suggests that the determination of the Tribunal had given rise to injustice in that a fair and proper determination of the Claimant’s claim could not be attained. This lengthy Ground contains various allegations of misconduct by the Tribunal, including “serious bias and hostility towards the [Defendant]”.

15.In respect of the alleged bias, 8 comments or questions by the Tribunal had been referred to. With respect, whether they are considered individually or accumulatively, I am unable to agree that they justify such a serious allegation. Whilst a different Presiding Officer might or might not have made such or similar comments, the Defendant had not begun to demonstrate that the Tribunal had shown a closed mind: see Allidem Mae G v Kwong Si Lin, HCLA 35/2002, 9 June 2003, [44].

16.There is nothing in this Ground. Put another way, it is plainly unarguable.

17.Ground (5) is a complaint that the Tribunal had directed the Defendant to put forward its evidence before that of the Claimant. At best, it is a technical objection, and it remains so unless there is any valid suggestion that the procedure had undermined the findings of the Tribunal. I see no such suggestion.

18.Further, the Tribunal had a statutory duty to investigate and there is something to be said that, concomitantly, the Tribunal should be allowed more room as to the manner of investigation.

19.For these reasons, this application is dismissed.

Mr Arthur Hue Yeung Au, instructed by Michelle Ip & Co., for the Defendant