The Royal Hong Kong Jockey Club v. Tam Tak Man

HCLA000065/1983

BETWEEN:-

Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 10th April 1984

Date of delivery of judgment: 10th April 1984

Mr. S. Wastbrook (Johnson, Stokes & Master) for the Appellant.

Respondent in person.

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JUDGMENT

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1. This is an appeal pursuant to leave granted on the 29th February 1984 from a decision of the Presiding Officer of the Labour Tribunal made on the 6th December 1983 when he awarded the respondent $61,599.20 for wages in lieu of notice and end of service benefit under the Royal Hong Kong Jockey Club staff retirement benefits scheme.

2. The respondent was employed by the appellant as an administrative officer at the Sha Tin race course. He was responsible to the administration manager for the organisation, co-ordination and control of the administration, cleaning and maintenance at the race course. His duties included making recommendations for improvement to cleaning procedures, the purchase of new equipment and the supervision of maintenance for the race course.

3. Weiss Cleaning Supplies Limited (Weiss) began to supply the appellant with cleaning and maintenance equipment and chemicals in about July 1980. Lam Tak Fai (Lam) and Tisayakorn Pramook (Pranook) were formerly employed by Weiss. Lam terminated his employment in August 1981 and Pramook in January 1982. Whilst employed by Weiss Lam and Pranook became directors of Well Connected Limited. This firm in March 1981 took over the role of supplying cleaning equipment to the appellant following lower quotations submitted to the respondent who was acting on behalf of the appellant. It is significant that the respondent, Lam and Pramook became tenants in common in May 1981 of premises that are the registered office of Well Connected Limited.

4. In November 1982 Weiss complained to the appellant that they believed that the respondent had influenced purchasing decisions by diverting orders from their company to Well Connected Limited. An enquiry was carried out by the appellant into the allegations made by Weiss which resulted in the dismissal of the respondent on the 3rd December 1982 for misconduct and infidelity.

5. A writ was issued by weiss on the 13th October 1982 against Lam, Pramook, the respondent, Well Connected Limited and another defendant claiming damages arising from the allegations made to the appellant about the respondent.

6. During his evidence in chief before the Labour Tribunal the respondent did not advert to the reasons relied upon by the appellant for his dismissal nor was he cross-examined about this matter. In fact the appellant at the hearing relied mainly upon documents and evidence in the form of statements made by the respondent and correspondence between the appellant and the respondent's solicitor. Reliance was also placed upon the written statements of five employees of the appellant which were produced as exhibit DD1. None of these witnesses who made serious allegations against the respondent were called to give evidence.

7. In his decision the Presiding Officer of the Labour Tribunal held that the respondent's connection with Well Connected Limited did not amount to conduct inconsistent with the due end faithful discharge of his duties. He also considered incompetence or negligence on the part of the respondent as justification for his dismissal without notice, but found that he had never held himself out as possessing the necessary still to warrant dismissal.

8. It is abundantly clear from his decision that the Presiding Officer directed his mind to summary dismissal for incompetence or negligence whereas the issue to be determined was that of misconduct or infidelity. The possession of necessary skills was irrelevant.

9. The appellant's ground of appeal is that the award is erroneous in law in that:

"The claimant placed himself in a position incompatible with the faithful conduct of his duties and entered into transactions where his personal interests conflicted with his employers' interests and accordingly the Chairmen should as a matter of law have found that the Defendant was entitled to dismiss him summerily.".

10. The proceedings before the Labour Tribunal are informal. The rules of evidence do not apply and the tribunal may hear any evidence that it considers to be relevant.

11. In this case it was essential for the respondent to deal with the allegations made against him in his evidence. Again the five employees should have been available to testify at the hearing for their statements would necessarily have been challenged. Further with the number of documents placed before the tribunal discovery was obviously desirable. The following words of Huggins, J. at page 401 of his judgment in Hung Sang Engineering Works Ltd. v. Yu Wing Fat (1975) H.K.L.R. 394 are wholly apposite to the instant case:-

"Time and time again experience has shown that departures from the established procedures of the law, though they may be intended to enable tribunals to do justice quickly and cheaply, tend to result in justice not being done at all. Legislation interfering with the established procedures should therefore be most jealously scrutinised and strictly construed."

In my view this case was not suitable for trial in the Labour Tribunal where lawyers do not have the right of audience. The Presiding Officer should have considered invoking the powers conferred by Section 10(2) of the Labour Tribunal Ordinance to decline jurisdiction and transfer the claim to the High Court or the District Court.

12. On appeal the High Court does not have the power of transfer, but by Section 35(1)(c) can remit the matter to the tribunal with such directions as it thinks fit. Accordingly I shall remit the case to the Labour Tribunal before another Presiding Officer with a direction that he considers transferring the claim to the High Court or District Court. Costs of the appeal will be reserved.

Representation:

Mr. S. Wastbrook (Johnson, Stokes & Master) for the Appellant.

Respondent in person.