National Ebauch Ltd v. Rishi Kaumar Bhatnagar

HCA000221/1980

Coram: Roberts, C.J.

Date of Judgment: 19th January, 1981

-----------------

DECISION

----------------

1. I have to decide a preliminary point of jurisdiction.

2. The statement of claim alleges that the defendant, a former employee of the plaintiff, terminated his employment in circumstances which amounted to a breach of his contract of employment in that he left before the end of the period of notice required by it.

3. The statement of claim further alleges that, before he left this employment, he induced some of his fellow employees to leave the plaintiff's employment, to the detriment of the plaintiff.

4. The pleading does not specify in terms, whether the claim for damages which the plaintiff is said to suffer as a result of the inducement was based on an implied term of good faith in the contract of employment between the plaintiff and the defendant or upon the separate tort of inducement of breach of contract, which does not depend on an employer/employee relationship.

5. However, the prayer contains a claim for damages for breach of contract and makes no reference to tort. I must, therefore, conclude that what is alleged is that the defendant had induced persons to leave the plaintiff's employment in breach of the implied term of good faith.

6. It is perhaps worth noting in passing that had the claim been framed in tort it would clearly have been excluded from the jurisdiction of the Labour Tribunal by virtue of paragraph 3 of the Schedule to the Labour Tribunal Ordinance (Cap. 25).

7. I agree with Mr. Bleach's submission that, although the plaintiff, in para. 8 of the statement of claim, includes an estimate of part of the damage which he has suffered, nevertheless, the nature of the prayer is such that it is a claim for unliquidated damages.

8. The question to be determined is whether such a claim falls within the jurisdiction of the Labour Tribunal or not.

9. Mrs. Graham submitted that the proper course for the plaintiff was to have instituted proceedings in the Labour Tribunal and to have waited for the Labour Tribunal to order its transfer to the High Court if it thought fit.

10. I do not think that this is so. The plaintiff is entitled to take the risk of starting in the wrong forum if he wishes to do so. If he has chosen the wrong forum, he will inevitably be penalized in costs and the action will be sent to the place where it should have started.

11. Section 7 of the Labour Tribunal Ordinance (Cap. 25) confers exclusive jurisdiction on the Labour Tribunal in relation to those claims which are specified in the Schedule to the Ordinance. Paragraph 1 of that Schedule confers jurisdiction on the Tribunal in relation to a "claim for a sum of money", which arises from the breach of a term, whether expressed or implied, in the contract of employment.

12. Is a claim for liquidated damages "a sum of money" within the meaning of that Schedule? Paragraph 1 of the Explanatory Memorandum, which was annexed to the Labour Tribunal Bill on its publication states -

"This Bill establishes a tribunal, to be known as the Labour Tribunal, the jurisdiction of which is at present restricted to claims in respect of liquidated sums arising out of a breach of contract of employment, though there is provision for its jurisdiction to be changed by resolution of the Legislative Council."

13. Paragraph 3 contains a passage, which is to the same effect -

"Part III deals with the jurisdiction of the tribunal. Clause 7 confers on the tribunal the jurisdiction set out in the Schedule. This is limited to claims for money arising out of a breach of contract of employment or statutory duty."

14. It seems to me that the ordinary meaning of the phrase "a sum of money" is that it is an ascertained sum. This view, so far as the Labour Tribunal Ordinance is concerned, is reinforced by the passages to which I have referred in the Explanatory Memorandum, which indicate that the intention of the Legislature was to exclude claims for unliquidated damages. This seems to me to be in accordance with the general intention of the Ordinance, which was to provide a simple informal forum without lawyers to deal with relatively simple claims which can be easily quantified.

15. I have, therefore, come to the conclusion that a claim for a sum of money arising from a breach of contract, does not include a claim for unliquidated damages. I thus agree with the ruling of Mr. Eric Li, the Presiding Officer in Labour Tribunal Claim No. 2352 of 1979 to the same effect.

16. In the result, therefore, I find that this court has jurisdiction to try the action.

Representation:

J. Bleach (J.S.M.) for Plaintiff

Mrs. P. Graham (H.A. Hoosenally & Co.) for Defendant