Wong Siu Ching v. Lai Yau Yan Michael

HCLA000047/1983

IN THE HIGH COURT OF JUSTICE

LABOUR TRIBUNAL APPEAL NO. 47 OF 1983

(On appeal from Labour Tribunal Claim No. 1900 of 1983)

BETWEEN

_____

Coram: Hon. Mantell J.

Date of Hearing: 5th January, 1984.

Date of Delivery of Judgment: 5th January, 1984.

__________

JUDGMENT

__________

1. On 22nd June 1983, an application for arrears of wages and severance pay was called on before a Presiding Officer of the Labour Tribunal. For some reason, which is unimportant to this appeal, neither party attended on the occasion and the matter was put back until 4th August 1983 when the claimant, Madam Wong Siu Ching, appeared to pursue her claim and the wife of the defendant attended purporting, as she said, to appear as the authorized agent not of her husband which, in any event, she would not have been permitted to do under the Ordinance, but as the agent of a limited company which she claimed to be the real employer of the claimant.

2. Now, it is not suggested that Mr. Lai had not been duly served with the claim under the provisions of the Ordinance or that he had any excuse for not himself attending the hearing if it was his wish to contend as apparently it was and still may be that the real employer and, therefore, the real defendant to the claim should have been the limited company rather than himself. According to the Presiding Officer, whose reasons I have been referred to or have read, his wife, Madam Lai, made it plain that her husband had no intention of attending either on that date or any other date and, therefore, no complaint could be made, nor is it, that at that time the Presiding Officer ought to have adjourned to some other occasion so as to allow Mr. Lai to attend in person. Instead of that, he proceeded to hear the application in the absence of Mr. Lai. Having heard the evidence, the Presiding Officer came to the conclusion that the claim was made out, both for arrears of wages and for severance pay. As to the first matter, he accepted the evidence of the claimant supported at it was, I think, by another member of the household staff and as to the second matter, he quite properly applied the presumption of redundancy. In other words, it having been established to his satisfaction by the evidence of the claimant that she had been dismissed, the statutory presumption that it was by reason of redundancy came into operation and that presumption was not rebutted. It is important to note that there is no complaint made as to the determination made by the Presiding Officer on 4th August. It is accepted by Mr. Bharwaney who has, if I may say so, presented the case for the appellant before me with great courtesy and skill that it was on the facts found an entirely proper determination. What it came to was not very much, $325 I think, for arrears of wages, and $1,866 for severance pay. Had matters stood there, no question of an appeal could have arisen because appeal is permitted under section 32 of the Labour Tribunal Ordinance only where the award, order or determination is either erroneous in point of law or outside the jurisdiction of the Tribunal. But the Ordinance in section 31 does provide for a review procedure. The terms of the section are interesting. The power is conferred by sub-section (2) in a case where the Presiding Officer of his own motion decides to review or, and this is germane to the present case, on the application of a party made within 7 days of the determination on notice in the prescribed form to all other parties. Mr. Lai duly and within time made his application for a review which, under sub-section (1), gave jurisdiction to the Presiding Officer within 14 days from the date of the award or order given or made by him to review the award or order and on such review, if he thought fit, to re-open and re-hear the claim wholly or in part and to call or hear fresh evidence and to confirm, vary or reverse his previous award or order. Now, it is interesting to note that the power of review is confined to the 14 day period from the date of the award or order. In this case, the application did not come before the Presiding Officer until 5th September and, perhaps, it might have been argued that by that time the Presiding Officer was functus officio so far as reviewing his own order was concerned, but that point was not taken before the learned judge who gave leave to appeal nor has it been argued before me. But the fact is that, the Presiding Officer did entertain the application for review on 5th September, albeit as I say, outside the prescribed time limit and he dismissed the application and it is in relation to his dismissal of the application for a review that the appellant obtained leave to appeal and it is the sole ground upon which he now pursues that appeal before me.

3. Now, the Presiding Officer was told by Mr. Lai entirely consistently with what had been said to him by Madam Lai previously that the reason for his failure to appear on 4th August was that he took the . view that the real employer was the company and not himself and that it was not in those circumstances necessary for him to appear notwithstanding that the claim was addressed to him personally. That was the. explanation made to the Presiding Officer and is apparent from the Presiding Officer's reasons that he did not accept the explanation or, to put it at its very lowest, that he was doubtful as to its truthfulness. Mr. Bharwaney says that that was an unreasonable conclusion since the explanation was, as I have indicated, consistent with what had been said by his wife on 4th August and, in any event, was uncontradicted. It is unnecessary for me to express any view about the matter because I have proceeded to the conclusion which I have reached on the basis that the explanation put before the Presiding Officer was a true one. The question, therefore, is whether, on the basis that the explanation was true, the Presiding Officer should have exercised his discretion under section 31 of the Labour Tribunal Ordinance to re-open and re-hear the claim and to give an opportunity to Mr. Lai to present his case which was, in the alternative, this: "If contrary to my first contention, I was the employer rather than the limited company. Then, the dismissal was not for a reason of redundancy but for a reason, good or bad, of our dissatisfaction with the performance of the claimant of her duties and that to rebut the presumption, I would wish to call evidence or give evidence to the effect that she has since been replaced in her position." The strength of the appeal lies in the fact that, of course, acknowledged though it be that it was entirely due to his own fault, Mr. Lai has, so far, not had the opportunity of putting forward that case regardless of its merits with which, I interpose, I am not concerned. And, of course, any court should and will consider long and hard before denying any party to litigation the opportunity to present his case and I have been troubled by that argument, I am bound to say. But in the end, I have not been able to conclude that the Presiding Officer has exercised his discretion on any wrong principle. I remind myself that it is not for me to put myself in the position of the Presiding Officer and ask what I would have done in the circumstances. That is not the test. It is, as Mr. Bharwaney put it to me, I think correctly, that no reasonable tribunal acting reasonably in the circumstances could have come to the decision which the Presiding Officer came to in this case. Therefore, after some hesitation, I dismiss this appeal.

4. I find it necessary to say a few further words. It is not the only time that I have noticed, not necessarily on the appeal itself but on applications for leave under the Ordinance, that Presiding Officers have apparently drawn their reasons in writing having first had a sight of the Notice of Appeal or the grounds of appeal which are attached to the application for leave. I think, that Presiding Officers would do well to remind themselves that the reasons which they advance in writing are either the reasons which they delivered orally at the time of giving the decision or are the reasons which came to mind at that time and support the decision or order which they made and it is not intended that Presiding Officers should, in the course of giving their reasons, attempt to deal by way of argument with the grounds of appeal advanced on behalf of the dissatisfied litigant and it is undesirable that that they should to so.

Representation:

M. Bharwaney instructed by Lau, Wong & Chan for Applicant/Defendant.

Respondent/Claimant - acting in person and present.