Matheson Pfc Limited v. Simon Jansen
Read the full judgment text of HCA 8703/1992 on BabelCite. This High Court CFI judgment.
1. I have before me an appeal against a decision of Master Jones dated 19th November 1993 which raises a short, but interesting, point of construction on the Labour Tribunal Ordinance Cap. 25.
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HCA008703/1992 1992, No. A8703 IN THE SUPREME COURT OF HONG KONG HIGH COURT ___________
___________ Coram: The Hon. Mr. Justice Kaplan in Chambers Date of hearing: 8 February, 1994 Date of handing down judgment: 25 March, 1994 ________________ J U D G M E N T ________________ 1. I have before me an appeal against a decision of Master Jones dated 19th November 1993 which raises a short, but interesting, point of construction on the Labour Tribunal Ordinance Cap. 25. 2. The matter arises in the following manner. By a written contract of employment dated 7th August 1991, the Plaintiff agreed to employ the Defendant and the Defendant agreed to serve the Plaintiff for an initial period of 2 years, subject to earlier determination as therein provided, as Manager of Matheson PFC Indonesia. Clause 20(c) of the contract provided :
3. Although no evidence was adduced on this point, it seems that the contract was made in Hong Kong and it certainly contains a Hong Kong choice of law clause. The contract contained a package of benefits usual in this sort of contract. In due course, the contract was determined and by writ dated 9th December 1992, the Plaintiff claims against the Defendant $358,544.00 allegedly due and owing by the Defendant to the Plaintiff under the terms of this contract of employment. 4. By summons dated 19th May 1992, the Defendant took out a summons seeking to set aside a default judgment which had been entered against him. In due course, the Master set aside the judgment. In seeking the setting aside of the judgment, the Defendant also sought an order that the Statement of Claim be struck out and the action be dismissed or stayed "on the ground that the Plaintiff's claim is within the exclusive jurisdiction of the Labour Tribunal". The Master refused to strike out dismiss or stay the action and the Defendant now appeals from that decision. 5. The jurisdiction of the Labour Tribunal can be found in Section 7 of the Labour Tribunal Ordinance which provides :
6. Schedule 1 provided as follows :
7. The phrase "contract of employment" is stated by section 2 of the Ordinance to mean -
8. I must now make some reference to the Contracts for Employment Outside Hong Kong Ordinance Cap. 78 which was passed in November 1965. Section 4 is headed "contracts to which the Ordinance applies" and states as follows, so far as is relevant :-
9. It is clear from this Ordinance that it is only intended to cover Hong Kong manual workers who are employed by non Hong Kong entities and has no application whatsoever to the facts of this case. Put simply, the Ordinance provides that the contracts of such workers should be in writing and should contain certain particulars set out in the Ordinance. There is a provision for attestation before the departure of the employee from Hong Kong and certain penalties are provided if the contract is not in writing or is not attested as provided in the Ordinance. 10. Both counsel have agreed the following facts.
11. Mr. Cheung has, as usual, set out in his very helpful skeleton that the disagreement between the parties boils down to :
12. It has to be said that this is an unfortunate piece of drafting. The definition of "contract of employment" includes the words "wherever the services are to be rendered". This cannot relate to whether the services are to be performed in one part of Hong Kong or another. It can only relate to whether they are to be performed within or without Hong Kong. It seems to me that one has to give considerable weight to the words used in the definition section. 13. Do the words used in the schedule require me, as it were, to strike down or limit the words used in the definition section. After having given this matter long and careful consideration, I think not. I believe that the wording in Section 1(a) was used in order to make perfectly plain that service carried out under Cap. 78 was covered by the Ordinance. I think it most likely that the draughtsman had forgotten about the words "wherever the services are to be rendered" in the definition of "contract of employment", and he was anxious to spell out the fact that such a claim came within the jurisdiction of the tribunal wherever the services under the contract would be performed. The reference in Schedule I(a) to Cap. 78 could well have been a mistaken assumption by the draughtsman that reference to a contract to which Cap. 78 applied was equivalent to performance outside Hong Kong. 14. I do not believe that the words in the second line of (a) in para. 1 of the Schedule commencing with the word "whether" were intended to be words of limitation because surely they have to be read with the rest of the Ordinance which includes the definition section. One way of testing this is to substitute in para. 1(a) of the Schedule for the words "contract of employment" the words "an agreement ... wherever the services are to be rendered". If that is done, para. 1(a) of the Schedule then reads as follows :-
15. Paraphrasing the Schedule thus one can see, in my judgment, that the phrase commencing with the word "whether" is not there to cut down the preceding phrase. Further, if the phrase beginning with the word "whether" did provide a geographical limitation, then the phrase "wherever the services are to be rendered" in the definition section would indeed be rendered superfluous. I would be most reluctant, unless forced to do so, to find the words in the definition section of an Ordinance rendered superfluous by the wording used in a Schedule, albeit, I accept, a Schedule which is intended to set out the claims in respect of which the tribunal will have jurisdiction. 16. If the Ordinance does not apply to cases where employees carry out work outside of Hong Kong certain absurdities arise. For instance, an employee could sue in the Labour Tribunal a foreign employer and vice versa, but he could not sue a local employer. I doubt that it was ever the intention to make available this inexpensive and expedient means of dispute resolution to cases involving a foreign employer hiring someone to work overseas but not to cases involving a local employer hiring someone to work overseas. 17. I have read the explanatory notes to the Bill which became the Labour Tribunal Ordinance and I have read the debates on the Bill in Hansard. I have also read three articles by Robert Ribeiro in (1978) HKLJ. However, none of these materials assist me in divining the intention of the legislature. 18. As I said, this is not an easy point of construction, but I have come to the conclusion that the claim made in this action by the Plaintiff against the Defendant is one within the exclusive jurisdiction of the Labour Tribunal and I propose to declare accordingly. 19. It was agreed the costs will follow the event and therefore I propose to make a costs order nisi in favour of the Defendant. 20. This case was extremely ably argued by both counsel and I have found Mr. Cheung's thoughtful written submissions of great assistance.
Representation: Mr. Erik Shum instructed by Baker & McKenzie for Plaintiff/Respondent. Mr. Andrew Cheung instructed by Siao Wen & Leung for Defendant/Appellant. |