Stahl Matthew Ian v. Brilliant Jet Ltd

HCLA 31/2023

[2025] HKCFI 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 31 OF 2023

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 2725 OF 2022)

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J U D G M E N T

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A.  INTRODUCTION

1.By a notice of originating motion dated 20^th December 2024, the Claimant (“Mr Stahl”) appeals against the order of the Deputy Presiding Officer (“the DPO”) of the Labour Tribunal (“the Tribunal”) made on 8^th December 2023 (“the Review Decision”). The Review Decision dismissed Mr Stahl’s application for review of the DPO’s earlier order of 19^th October 2023 (“the Main Decision”), and ordered that the Main Decision should stand.

2.Under the Main Decision, Mr Stahl succeeded in his claim against his former employer (“Brilliant Jet”) for arrears of wages, annual leave pay and expenses. However, he was unsuccessful in his claim for wages in lieu of notice. It is the latter that was the subject of Mr Stahl’s application for review, and is the subject of this appeal.

B.  THE BACKGROUND

B1.  The factual background

3.I gratefully take the following largely from the written reasons for the Main Decision (“the Main Reasons”). A number of other non-controversial matters have also been included.

4.Pursuant to a written agreement dated 17^th December 2019 (“the Employment Contract”) Mr Stahl, a private jet pilot, was employed by Brilliant Jet as the Lead Captain on (unspecified) Gulfstream G550 aircraft managed by Brilliant Jet. Brilliant Jet is a business aviation management services company primarily serving China and the Asian region.

5.Under the Employment Contract:

5.1  Mr Stahl was required to prove that he was eligible to be employed in the jurisdictions in which he was required to work, or that all necessary work visas or permits had been granted by the relevant authorities. In this regard, Mr Stahl was required to use his best efforts to pursue any and all applications for the necessary work visas and permits, and Brilliant Jet was to use its reasonable endeavours to assist Mr Stahl in that regard;

5.2  Mr Stahl was required to serve Brilliant Jet in any part of the world and on any of the routes served by Brilliant Jet, including the operation of ferry flights or other special assignments;

5.3  Mr Stahl’s place of work would be designated by Brilliant Jet, which might require him to work at different locations either on a permanent or temporary basis. He would be required to travel overseas as a necessary requirement;

5.4  Mr Stahl was required to be based in Shanghai, which was defined as the “Crew Base City”;

5.5  if the Client (as defined in the Employment Contract) decided to change the operational base of the aircraft (presumably the one piloted by Mr Stahl) to another city, or if Mr Stahl was required to act as pilot of another aircraft of the same model with a different operational base, he would be required to relocate to a different Crew Base City;

5.6  there was no fixed term of employment. Either party could terminate the contract without cause by giving three months’ written notice or payment in lieu. Brilliant Jet could also terminate the contract for cause immediately without notice or payment in lieu.

6.Mr Stahl commenced his employment on 2^nd January 2020. He arrived at Shanghai on 15^th February 2020 after training in Hong Kong, and began his flying duties. He carried out a number of flights and training sessions in various different locations both inside and outside mainland China.

7.From 28^th March 2020, the mainland government imposed restrictions on entry to the mainland because of COVID-19. At the time Mr Stahl was in Cambodia, in accordance with arrangements made by Brilliant Jet. Although Mr Stahl had a valid China Business visa (“Type M Visa”), he was not able to re-enter mainland China to continue with his flying duties as planned. He attempted to apply for a China Crew visa (“Type C Visa”) which would have enabled him to re-enter mainland China, but was unsuccessful.

8.Mr Stahl was then put on annual leave for the period from 4^th to 17^th April 2020.

9.On 30^th April 2020, Brilliant Jet asked Mr Stahl to fly to Hong Kong to apply for a Type C Visa (making the application from Cambodia) and to extend his Hong Kong work visa. He arrived in Hong Kong on 7^th May 2020 and applied for his Type C Visa the following day.

10.On 11^th May 2020, Mr Stahl gave three months’ written notice to terminate the Employment Contract, with his last day of work being 10^th August 2020.

11.On 14^th May 2020, Mr Stahl’s application for a Type C Visa was refused.

12.On 15^th May 2020, in view of Mr Stahl’s continued failure to obtain a valid visa, Brilliant Debt decided to place Mr Stahl on unpaid leave from 15^th May 2020, to which Mr Stahl objected.

13.There was then some correspondence between Mr Stahl and the China Visa Application Service Center in Hong Kong (“the Chinese Visa Centre”), the last of which played an important part in the DPO’s Main Decision.

13.1  On 9^th June 2020, Mr Stahl emailed the Chinese Visa Centre, asking whether it was the case that (as he had been told orally when he visited the centre) the Chinese government would only approve an application for a Type C Visa if the applicant provided evidence that it was needed for an urgent medical or diplomatic reason, and that routine employment as aircrew in China was not sufficient justification for the grant of such a visa.

13.2  On the same day, the Chinese Visa Centre replied saying “Different situation with different result, you can send us the letter to let us for consideration.”

13.3  On 13^th June 2020, Mr Stahl emailed the Chinese Visa Centre again, saying that he was not sure what “letter” was being referred to, and asking for a yes or no answer to his original question.

13.4  On 15^th June 2020, the Chinese Visa Centre replied, saying:

“You need to provide the Invitation letter from the Chinese company, the employment letter, and the details itinerary.

The letter explains the reason and purpose of why you are an emergency and necessary to go to China in this periods.

In view of the impact of the current epidemic, it is not recommended to apply for an unnecessary visa in the short term. If you insist on applying, please provide an invitation letter from an authority or a company in mainland China to prove why this applicant request to enter China necessarily.

However, the time for obtaining a visa is uncertain, and there is no guarantee that you can apply for a visa.

Everything is subject to the latest epidemic situation, policies, and measures issued by the Chinese Ministry of Foreign Affairs.”

14.On 16^th June 2020, Brilliant Jet summarily dismissed Mr Stahl, on the grounds that:

14.1  he failed to obtain all necessary permits required for the performance of his duties;

14.2  he was not based in Shanghai;

14.3  he used Brilliant Jet’s credit card for various travel expenses without authorisation.

15.At least two other pilots employed by Brilliant Jet obtained a Type C Visa at around the time of the events in question. Mr Reponen, employed as Chief Pilot by Brilliant Jet, applied for a Type C Visa on 19^th April 2020 and obtained it on 24^th May 2020. Captain Diaz was issued with a Type C Visa on 11^th June 2020.

B2. The proceedings in the Tribunal

16.Mr Stahl commenced proceedings in the Tribunal, seeking:

16.1  arrears of wages of $192,373.11 (for the period from 15^th May 2020 to 15^th June 2020);

16.2  wages in lieu of notice of $321,791.25[1] (for the period from 16^th June 2020 to 10^th August 2020);

16.3  annual leave pay of $82,992 (for the period 4^th to 17^th April 2020);

16.4  reimbursement of expenses incurred in the course of employment of $163,146.71.

17.The DPO found Mr Stahl to be an honest witness and preferred his evidence and that of Mr Reponen to that of Brilliant Jet. She further found that summary dismissal was not justified. She awarded Mr Stahl his claim for arrears of wages, annual leave pay and reimbursement of expenses.

18.However, the DPO did not award Mr Stahl wages in lieu of notice (which had been claimed for the period from the summary dismissal to the end of the three months’ notice which Mr Stahl had given). The DPO found that the Employment Contract had been frustrated on 16^th June 2020, so that Mr Stahl would not be entitled to any salary thereafter (Main Reasons paragraph 70, 71). The DPO found that the event of frustration was the Chinese government’s sudden change of policy regarding entry restrictions, arising from COVID-19, rendering it impossible for Mr Stahl to perform the contract (Main Reason paragraph 68). Frustration had not been a defence raised by Brilliant Jet, or an issue canvassed with the parties at the hearing before the Tribunal.

19.In relation to Mr Stahl’s application for a Type C Visa, the DPO found that:

19.1  information about quarantine policy in Beijing was unclear (Main Reasons paragraph 46);

19.2  the failure to obtain the visa was not the fault of the parties but a matter beyond their control (Main Reasons paragraph 47);

19.3  there was uncertainty and there were rapid changes in the Chinese government’s policy about entry restrictions. Some, but not all, applications had been rejected. Mr Reponen’s application for a Type C Visa, made on 19^th April 2020, was granted on 24^th May 2020. There was conflicting information - on the one hand, Mr Stahl was told that routine employment as a crew in China would not be sufficient justification for obtaining a visa, but on the other hand Mr Reponen told Mr Stahl that there was no solid information as to why some of the applications were successful and others were not. The Chinese Visa Centre’s email of 15^th June 2020 to Mr Stahl stated that it was not recommended to apply for an unnecessary visa in the short term, and that everything was subject to the latest epidemic situation, policies, and measures issued by the Chinese Ministry of Foreign Affairs (Main Reasons paragraph 56).

20.At paragraph 53 of the Main Reasons, the DPO recorded Mr Stahl’s contention that his application for a Type C Visa probably failed because he had not stayed in Hong Kong for fourteen days prior to making the application, and Mr Reponen’s evidence that he had heard of successful applications made after fourteen days’ stay in Hong Kong. Mr Stahl had also heard of cases which failed on the first application but succeeded on their second application. It seems that the DPO suggested that this was speculation and hearsay. However, in the oral reasons given at the hearing before the Tribunal, the DPO had stated that she accepted the evidence of Mr Stahl and Mr Reponen that Mr Stahl’s application probably failed because he had not stayed for fourteen days in Hong Kong. It appears she had also accepted Mr Stahl’s evidence that there were applicants who had succeeded in getting a visa on their second application.

21.As the DPO observed (Main Reasons paragraph 57 to 59, 62), for an event or circumstance to frustrate a contract, it must go to the root of the contract and make performance impossible and not merely difficult. The doctrine of frustration has a very narrow scope of operation and is not lightly invoked, as it operates to discharge the parties from further liability. The DPO cited Davis Contractors v Fareham Urban District Council [1956] AC 696 at 729, where Lord Radcliffe said:

“… frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.”

and at 721, where Lord Reid said:

“The question is whether the contract which they did make is, on its true construction, wide enough to apply to the new situation: if it is not, then it is at an end.”

22.The DPO further observed (Main Reasons paragraph 60) that the application of the doctrine of frustration required a multi-factorial approach, citing Edwinton Commercial Corporation & anor v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (“The Sea Angel”) [2007] 2 All ER (Comm) 634 at [111] (Rix LJ):

“In my judgment, the application of the doctrine of frustration requires a multi-factorial approach. Among the factors which have to be considered are the terms of the contract itself, its matrix of context, the parties’ knowledge, expectations, assumptions and contemplations, in particular as to risk, as at the time of contract, at any rate so far as these can be ascribed mutually and objectively, and then the nature of the supervening event, and the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances. Since the subject matter of the doctrine of frustration is contract, and contracts are about the allocation of risk, and since the allocation and assumption of risk is not simply a matter of express or implied provision but may also depend on less easily defined matters such as ‘the contemplation of the parties’, the application of the doctrine can often be a difficult one. In such circumstances, the test of ‘radically different’ is important: it tells us that the doctrine is not to be lightly invoked; that mere incidence of expense or delay or onerousness is not sufficient; and that there has to be as it were a break in identity between the contract as provided for and contemplated and its performance in the new circumstances.”

23.The DPO took the view that her task was to ascertain the true nature and scope of the contract, and then ask whether the contract applied to or covered the new situation brought about by the supervening event, applying the “radically different” test (Main Reasons paragraph 63).

24.The DPO’s analysis (Main Reasons paragraphs 65 to 70) was that:

24.1  under the Employment contracts, Mr Stahl’s obligation was to use best endeavours to obtain the necessary licenses and visas and to carry out his flying duties, whereas Brilliant Jet’s obligation was to use reasonable endeavours to assist Mr Stahl in obtaining the necessary licenses and visas and to arrange flying duties with the aircraft assigned to Mr Stahl;

24.2  the outbreak of COVID-19 was unforeseen at the time of the Employment Contract;

24.3  the Chinese Visa Centre’s email of 15^th June 2020 was a conclusive piece of evidence that the policy of granting Type C visas at the material time was unpredictable and subject to change from day to day depending on the pandemic situation on the policy of the Chinese government;

24.4  the state of the evidence before the Tribunal was that, at the time, there was no certainty as to when the outbreak would be under control, and when the Chinese government’s policy on entry restrictions would be relaxed. Due to the uncertainty of this policy, the performance of the Employment Contract by Mr Stahl became impossible, and Brilliant Jet had to hire a replacement pilot for an uncertain future period. This supervening event did not only render the Employment Contract unexpectedly difficult or more expensive to perform, but in fact made performance impossible for an unforeseeable period of time. The sudden change of policy regarding entry restrictions had significantly changed the nature of the parties’ rights and obligations;

24.5  there were perhaps successful applications in Hong Kong in late May, and the evidence confirmed that decisions were made on a case-by-case basis. The fact that Mr Stahl was able to obtain the necessary visa in September 2020 does not prove, even with the benefit of hindsight, that he would have received it if he had applied after a fourteen-day stay in Hong Kong. There was a relaxation of entry restrictions in September 2020;

24.6  the Employment Contract was terminated by frustration on 16^th June 2020.

25.Mr Stahl applied for a review of the Main Decision. In his supporting statement, he pointed out that the issue of frustration had not been raised at the hearing before the Tribunal. He submitted that the Employment Contract had not been frustrated. He submitted that had Brilliant Jet exercised reasonable endeavours to assist, he would have been able to obtain the Type C Visa. He highlighted (inter alia) the following matters:

25.1  Brilliant Jet’s acceptance that the Chinese Visa Centre had started to accept visa applications from mid-April 2020;

25.2  the evidence from Mr Reponen, accepted by the DPO, that for an application to be approved, the applicant must first have stayed in Hong Kong for fourteen days;

25.3  Brilliant Jet’s own evidence that its pilot Captain Diaz had successfully obtained a Type C Visa on 11^th June 2020 with the assistance of Brilliant Jet;

25.4  after Mr Stahl’s application was rejected on 14^th May 2020, he asked Brilliant Jet to provide documents to assist in a further application, but Brilliant Jet refused to do so.

26.Mr Stahl submitted that it was therefore not impossible to obtain a Type C Visa at the material time, but his application failed because he had not stayed for the requisite fourteen-day period, and then when he sought to reapply, Brilliant Jet refused to assist.

27.On 8^th December 2023, the DPO gave the Review Decision, dismissing the application for review. In the written reasons for the decision (“the Review Reasons”), the DPO held that:

27.1  it was not unfair that frustration was not raised at the trial before the Tribunal, as the (relevant) evidence was explored at trial, and in any event Mr Stahl submitted new evidence at the review stage;

27.2  the state of evidence at trial was that there was a lack of clear guidelines and uncertainty regarding the Chinese government’s policy regarding entry restrictions for foreigners and the possibility of obtaining a valid work visa to enter China to resume duties;

27.3  the reply received by Mr Stahl from the Chinese Visa Centre was that a Type C Visa would only be issued in the event of urgent medical or diplomatic reasons, and that routine employment as an aircrew member in China was not a sufficient justification. The second reply from the Chinese Visa Centre of 9^th June 2020 was that different circumstances would lead to different outcomes. The further reply of 15^th June 2020 was that all matters were subject to the prevailing epidemic situation, policies and measures issued by the Chinese government;

27.4  there were instances where these applications in Hong Kong were successful, but the evidence also indicated that each case was assessed on a case-by-case basis. It was not possible to confirm that Mr Stahl would have been granted the visa if he had stayed in Hong Kong for fourteen days or more before applying. Even if Brilliant Jet had assisted him with a second visa application, Mr Stahl would only have stood a chance of being granted the visa. In other words, the outcome was equally uncertain;

27.5  this was a situation where the contract work was interrupted by a contingency not anticipated at the time when the parties entered into the contract. The drastic change in Chinese government policy following the outbreak of COVID-19 fundamentally altered the parties’ obligations, rendering the original terms of the Employment Contract untenable.

B3.  Brilliant Jet’s stance in this appeal

28.In a letter of 24^th February 2025, Brilliant Jet indicated that it opposed Mr Stahl’s appeal, and would rely on the submissions it made to the Tribunal for this purpose. It indicated that it had no further submissions to make in the appeal and therefore asked to be excused from the hearing of the appeal.

29.The court’s letter of 6^th March 2025 expressly drew Brilliant Jet’s attention to the reasons why leave had been given to Mr Stahl to appeal, including the fact that the issue of frustration had not been raised at the hearing before the Tribunal, such that various factual and legal questions relating to the issue of frustration had not been fully explored by the parties before the Tribunal. Brilliant Jet was further informed that its submissions before the Tribunal (on which it sought to rely in the present appeal) would therefore not have addressed the points now sought to be raised by Mr Stahl, and that proper consideration should be given as to whether it should attend the hearing of the appeal.

30.Brilliant Jet was subsequently (and prior to the hearing of this appeal) served with the hearing bundle, written submissions and authorities, and statement of costs of Mr Stahl.

31.Nevertheless, Brilliant Jet chose not to provide any further response or to appear at the hearing of the appeal.

C.  THE GROUNDS OF APPEAL

32.Leave was granted to Mr Stahl to appeal on the following grounds:

32.1  whether the DPO erred in law in ruling that the Employment Contract was terminated by reason of frustration on 16^th June 2020;

32.2  further or alternatively, if the Employment Contract was frustrated, whether the DPO erred in law in failing to consider that this did not override Mr Stahl’s statutory rights under s.8A of the Employment Ordinance, Cap.57 (“the EO”) to damages as a result of Brilliant Jet’s termination of the Employment Contract.

D.  THE APPLICABLE LEGAL PRINCIPLES

D1.  Appeal from the Tribunal

33.Under s.32 of the Labour Tribunal Ordinance, Cap.25 (“the LTO”), a party may apply for leave to appeal against the Tribunal’s award, order or determination only on the grounds that it is erroneous in point of law, or outside the jurisdiction of the Tribunal.

34.An appeal on a question of law lies only in limited circumstances. A decision may be quashed if it is based on a finding of fact or inference from the facts which is perverse or irrational; or there was no evidence to support it; or it was made by reference to irrelevant factors or without regard to relevant factors. It is not necessary to identify a specific error of law; if the decision cannot be supported the court will infer that the decision-making authority misunderstood or overlooked relevant evidence or misdirected itself in law. See Kwong Mile Services Ltd v Commissioner of Inland Revenue (2004) 7 HKCFAR 275 (Bokhary PJ at [31] to [34]).

D2.  Frustration

35.There is no challenge to the principles identified by the DPO in the Main Reasons. To recap, the authorities cited in the Main Reasons highlight that:

35.1  the assessment of whether a contract has been frustrated is a fact-sensitive exercise, requiring the court to consider the terms of the contract, its factual matrix, the parties’ knowledge, expectations, assumptions and contemplations, the nature of the supervening event, and the parties’ reasonable and objectively ascertainable calculations as to the possibilities of future performance in the new circumstances;

35.2  the doctrine of frustration is not to be lightly invoked. Mere expense or delay or onerousness is not sufficient. There has to be a break in identity between the contract as provided for and contemplated and its performance in the new circumstances.

36.In addition, the following principles are relevant.

37.The essence of frustration is that it should not be due to the act or election of the party seeking to rely on it. A frustrating event must take place without blame or fault on the part of the party seeking to rely on it. See Cheung Kit Lai v Rich Prosper Limited, unreported, HCA 972/2011, 10^th April 2014 (To J) at [64] to [65].

38.A party seeking to assert that a contract has been frustrated must prove that (1) there has been some outside event or extraneous change of situation, not foreseen or provided for by the parties at the time of contract, which either makes it impossible for the contract to be performed at all or at least renders its performance radically different from what the parties had contemplated when they made it, and (2) the outside event or extraneous change of situation, and the consequences of either in relation to the performance of the contract, must have occurred without either the fault or the default of either party to the contract: Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 at 909F-H (Lord Brandon).

39.A party cannot say that he has been disabled from performing a contract by a frustrating event if he has alternative means to perform it: J Lauritzen A/S v Wijsmuller BV (The Super Servant Two) [1990] 1 Lloyd's Rep 1.

E.  GROUND 1: WHETHER EMPLOYMENT CONTRACT FRUSTRATED

40.Under the Employment Contract, Mr Stahl was required to serve in any part of the world and on any route served by Brilliant Jet; Brilliant Jet might require him to work at different locations. Whilst he was required to be based in Shanghai, he could be required to relocate to a different Crew Base City. In other words, it was not the case that the Employment Contract could be performed only if Mr Stahl could travel to and from Shanghai. On the contrary, it was expressly contemplated that Brilliant Jet had the right to deploy Mr Stahl elsewhere.

41.In the course of the hearing, I asked Mr Wong Hok Yan, counsel for Mr Stahl, whether the witnesses at the hearing before the Tribunal had touched on the issue of whether Mr Stahl could have worked in some other part of the world. Mr Wong[2] said that Mr Stahl had put to Ms Chan, the witness for (and managing director of) Brilliant Jet that he could have worked from another base, to which Ms Chan had answered yes, and that this was why Brilliant Jet continued to pay Mr Stahl’s wages despite his lack of a Type C Visa. As no proper record of this part of the evidence was placed before me at the appeal, I do not place any weight on it as such. The point, however, is that the terms of the Employment Contract did allow for it to be performed even if Mr Stahl did not possess a Type C Visa (or other Visa enabling him to travel to mainland China), and this alternative means of performance, and any evidence bearing on it as adduced before the Tribunal was not taken into account in the DPO’s conclusion that it was impossible to perform the Employment Contract.

42.In any event, the state of the evidence, and the DPO’s own findings, did not suggest that performance of the Employment Contract was impossible or radically different from what was contemplated even if Mr Stahl were required to obtain a Type C Visa.

43.The DPO found that it was uncertain as to whether Mr Stahl might be able to obtain a Type C Visa, and the situation could change from day to day. Some, but not all, applications had been rejected, and it was not entirely clear which would succeed and which would not. There was some basis to think that an application made by an applicant who had spent fourteen days in Hong Kong would succeed (as indeed the DPO had accepted, in her oral reasons). Furthermore, Mr Reponen and Captain Diaz had both successfully applied for, and obtained, a Type C Visa (the former before, and the latter after, Mr Stahl’s application was rejected). The Chinese Visa Centre did not, in its emails to Mr Stahl, state that routine employment as an aircrew member in China would not be sufficient justification for obtaining a Type C Visa (cf. Review Reasons paragraph 9) – rather, it asked for a letter from a company in mainland China to prove the necessity for the visa, and emphasised that there was no guarantee of a grant. Mr Stahl had a chance of being granted the visa, but this was uncertain.

44.In other words, on the evidence before, and the findings made by, the Tribunal, it was not impossible for Mr Stahl to have succeeded in obtaining a Type C Visa in time to carry out further flights for Brilliant Jet within the remainder of the notice period. It was merely uncertain as to whether Mr Stahl could have obtained such a visa. Furthermore, it was not the DPO’s finding that the making of a further application would have been so onerous on Brilliant Jet as to change the nature of its obligations under the Employment Contract to assist Mr Stahl in obtaining necessary visas.

45.With respect, I therefore consider that it was erroneous in law to conclude, on the basis of the evidence before the Tribunal and the findings that it made, that the Employment Contract was frustrated.

46.For completeness, I should mention that Mr Wong also made a submission that the DPO should not have gone into the issue of whether the Employment Contract was frustrated, as it had not been raised by Brilliant Jet as a defence and had not been canvassed with the parties at the hearing before the Tribunal. I do not intend to go into this point as the grounds of appeal do not include a complaint of procedural impropriety.

F.  GROUND 2: APPLICATION OF S.8A EO IN THE EVENT OF FRUSTRATION

47.Given my views on Ground 1, it is not necessary to consider Ground 2.

G.  DISPOSITION

48.The Court of First Instance, as a supervisory court over errors of law, should in general remit a case to the Tribunal if there was a misdirection of law, except where the error could not have affected the outcome (ie. it was immaterial), or where the Tribunal properly directed could have come to only one legitimate conclusion on the evidence and findings (including findings that the Court may make by inference pursuant to section 35(2)(a) of the Ordinance), and then only if one could be practically certain that the relevant evidence could not have been materially affected by the misdirection: Chok King Ming v Equal Opportunities Commission [2017] 2 HKLRD 521 at [70], G Lam J (as he then was).

49.This is a case where:

49.1  Brilliant Jet did not suggest that the Employment Contract was frustrated;

49.2  despite being aware that in this appeal, Mr Stahl challenges the DPO’s finding of frustration, Brilliant Jet did not seek to advance any submissions in support of this finding, but merely sought to rely on the submissions it advanced in the Tribunal, which were limited to an argument that it was entitled to summarily dismiss Mr Stahl for gross misconduct;

49.3  Brilliant Jet does not suggest that in the event that the matter were remitted to the Tribunal, it would have any further evidence to adduce, or submissions to make, in support of an argument that the Employment Contract was frustrated. It does not suggest that there are any further findings that the Tribunal should make which would show that the Employment Contract was frustrated. Indeed, it does not suggest that there should be any remission.

50.In the circumstances, I conclude that had the DPO been properly directed, she could only have come to the conclusion that the Employment Contract was not frustrated. This means that the DPO’s conclusion that further obligations under the Employment Contract were discharged cannot stand. The DPO had also found that Brilliant Jet was not entitled to summarily dismiss Mr Stahl. The upshot of all of this is that Mr Stahl was entitled to be paid his salary until the expiry of the period of three months’ notice which he had given.

51.I therefore:

51.1  allow the appeal,

51.2  set aside the Review Decision and that part of the Tribunal’s order dated 19^th October 2023 relating to Mr Stahl’s claim for wages in lieu of notice,

51.3  substitute therefor an order that Brilliant Jet pay to Mr Stahl wages in lieu of notice in the sum of $321,791.25,

51.4  order that Brilliant Jet pay to Mr Stahl the costs of and incidental to the application for leave to appeal, and the appeal itself. I summarily assess these at $220,000, making deductions in view of the (1) lack of necessity for attendance on the other side by a senior solicitor, (2) lack of necessity for two fee earners and relatively high amounts charged in respect of professional work, (3) relatively high fees for drafting the notice of originating motion, (4) disorganisation in preparation of the hearing bundles.

Mr Wong Hok Yan, instructed by Winnie Leung & Co., for the Claimant

The Respondent was not represented and did not appear.