Law Wai Ming v. Wm Howells (Assessors) Ltd and Another

DCMP000151/1978

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

Miscellaneous Proceedings No. 151 of 1978

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Coram: H.H. Judge LIU, Q.C. in Chambers.

Date of Judgment: 3rd October, 1978.

Application for leave to appeal against the decision of Presiding Officer.

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DECISION

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1. A claim was duly filed against the 1st Defendant for one month's pay in lieu of notice. At the hearing before the learned Presiding Officer in the Labour Tribunal, the 2nd Defendant was joined. Reservice of the amended Claim was ordered to be dispensed with. Mr. Howells appearing on behalf of the 1st Defendant, and also a director of the 2nd Defendant, strenuously objected to the joinder of the 2nd Defendant. Mr. Howells conceded before the Labour Tribunal, as he did before this Court, that the Claimant was in the exclusive employ of the 2nd Defendant but was never an employee of the 1st Defendant. Insofar as the claim against the 2nd Defendant is concerned, it was further contended that the same was out of time by virtue of S.9(1) of the Labour Tribunal Ordinance which limits jurisdiction of the Labour Tribunal to causes of action arising within a period of 6 months before the filing of the claims.

2. On this application, Mr. Howells was visibly aggrieved. He spared no effort in emphasizing that leave to appeal was sought to be obtained for self-satisfaction and as a matter of principle.

3. First and foremost, under S.32(1) of the labour Tribunal Ordinance, which prescribes the categories for matters appealable, a party aggrieved may challenge only errors in point of law and/or the question of jurisdiction. The sacrifice of part a litigant's coveted right to appeal for a swift finality forms the very backbone in the structure of the Labour Tribunal Ordinance.

4. Mr. Howells asserted that his right to a proper participation in the proceedings before the learned Presiding Officer was not unhampered, and he complained of breaches of natural justice. I will deal with that allegation first. Mr. Howells charged that the manner in which the proceedings were conducted left him with the distinct impression that the hearing was a foregone conclusion and that he was denied the right to a full cross-examination.

5. Procedure in the Labour Tribunal is regulated by Section 20(1), Section 20(3) as well as Section 27(2): Proceedings in the Labour Tribunal are to be conducted in an informal manner inquisitorial in nature, and the strict rules of evidence may not be adhered to. Mr. Howells disclosed that only day before yesterday he received a copy of the Presiding Officer's decision to paragraph 2 of which he took great exception. He claimed that the learned Presiding Officer's observations therein were as well unjust as unsupported. In that direction, Mr. Howells submitted a copy letter to the Labour Tribunal dated 7th July, 1978 in reply to a questionaire served upon the 1st Defendant. From the transcript before me, it does not appear that Mr. Howells was in any way impeded in his conduct of the proceedings on behalf of the companies. There are proper ways and means for challenging the records of a judicial tribunal, and no more need be said than that in the present proceedings, none of these recognised averues has been resorted to. Whilst there is no error on the face of the record, Mr. Howells' grievance, real or imagined, was said to have stemmed from the general climate in which the controversy was resolved. Well-intentioned but unguarded judicial zeal may often be misunderstood. Furthermore, the provisions of the Labour Tribunal Ordinance envisage and permit no appeal on alleged breaches of the rules of natural justice. Mr. Howells' companies, the 1st and the 2nd Defendants, may not be entirely without remedy in the form of certiorari which entails, if circumstances justify it, an application to the High Court for exercising appropriate control over the proceedings in a lower tribunal. That remedy is not within the reach of this Court, and I can offer no further guidance to Mr. Howells or his companies on that score. Such accusation, if persisted in, must be taken and dealt with elsewhere.

6. One of the matters dwelt upon seems to have some substance, and that is the joinder of the 2nd Defendant. Disappointment was aired in respect to the lack of proper notice to the 2nd Defendant Company. Criticisms were also levelled at the adjudication of the claim against the 2nd Defendant Company despite Section 9(1) of the Labour Tribunal Ordinance.

7. Mr. Howells is a director of both the 1st Defendant Company and the 2nd Defendant Company. From the transcript, it transpires that no adjournment was sought by Mr. Howells for the purpose of fixing the 2nd Defendant with proper notice or enabling it to meet the allegations of the Claimant's. Moreover, no real prejudice to the 2nd Defendant has been suggested.

8. The Labour Tribunal found the claimant to have been wrongfully dismissed. It was alleged on behalf of the defendants that on the 30th December 1977, a registered letter of even date (Ex.D7) was dispatched to the Claimant declaring:

"If you are unable to resume your normal duties effective January 3, 1978, I will assume that you have resigned and I will immediately engage a replacement for you".

The letter was returned undelivered, but it reflects the defendants' intention to terminate the Claimant's employment as from the 3rd of January. Whilst the learned Presiding Officer seemed to have accepted the dispatch of this letter as a fact, she disregarded it as being self-serving. The learned Presiding Officer commented that on the 6th February, the Claimant was quite unaware "that his services with the defendants had been treated as terminated". Thus, dismissal which is the sole cause of action fell on or about the 3rd January, 1978. The 2nd Defendant was added on the 25th July, 1978. Consequently, the cause of action arose more than 6 months prior to the joinder of the 2nd Defendant, and the claim against the 2nd Defendant Company is or may be outside the jurisdiction of the Labour Tribunal by reason of S.9(1). It is trite law that only upon an adversary becoming a party on record, in the words of S.9(1), "a claim is filed" against him. It would seem that the Claimant was precluded from having matters adjudicated as against the 2nd Defendant Company by reason of S.9(1) of the Labour Tribunal Ordinance, and to that extent leave to appeal by the 2nd Defendant Company should, in my view, be granted.

9. The application for leave to appeal comprises four specific grounds: First, it is alleged that the basic rules of evidence were over-looked. In my view, this complaint is met by the sections to which I have alluded viz. S.20(1), S.20(3) and S.27(2). Insofar as that ground overlaps alleged breaches of natural justice, the remedy open to the 1st and 2nd Defendant companies seems to lie in an application to the High Court for certiorari which, even if justified and available, is beyond the reach of the District Court. The 2nd ground raised by the application is that the Claimant concurred in cross-examination that his claim was or was in substance for a New Year bonus and not a month's pay in lieu of notice. The learned Presiding Officer decided on facts basing, inter alia, on the card, Ex."C3", as well as on the evidence including that from the Claimant himself. That, being a finding on fact, is exempted from further investigation on appeal. Vide S.32(1) of the Labour Tribunal Ordinance. There was sufficient evidence for the learned Presiding Officer to arrive at that conclusion, and it is not open to any appellate tribunal to reopen the dispute on the merits. The third point of the Defendant companies is founded on the alleged error on the part of the Presiding Officer to include the 2nd Defendant company by an amendment. Mr. Howells, being also the director of the 2nd Defendant company, had chosen not to apply for an adjournment. In fact, no case of real prejudice was sought to be made out. That, in my view, is sufficient to dispose of it. The final limb charges that the learned Presiding Officer failed to activate S.9(1) of the Labour Tribunal Ordinance which somewhat fetters the tribunal's jurisdiction. The last contention of Mr. Howells' seems to be meritorious, and to that extent I would grant leave to the 2nd Defendant company to appeal.

10. Therefore, the application by the 1st Defendant company for leave to appeal is refused, and as to the 2nd Defendant's application, I would allow it to the extent that the 2nd Defendant company do have leave to appeal on the last ground set out in this my decision viz. whether or not the learned Presiding Officer had jurisdiction to entertain the claim against the 2nd Defendant company joined 6 months after the accrual of the cause of action. It is to be emphasized that leave granted to the 2nd Defendant company will in effect bring little comfort to Mr. Howells, a director of both companies. Mr. Howells stressed that it was an application on principle, and I can see no good reason, although the limited leave to appeal granted would seem to be futile as an effective appeal against the decision of the learned Presiding Officer, for with-holding such leave from the 2nd Defendant company. There would be no order as to costs for the 1st Defendant company, but costs for the 2nd Defendant company be reserved for the judge hearing the appeal of the 2nd Defendant company on the limited issue for which leave to appeal is granted.

Representation: