曾健鴻及另十位 v. 青木建設株式會社

HCLA000049/2000

HCLA 49/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 49 OF 2000

(on appeal from Labour Tribunal Claims Nos LBTC 10080/1999

c/w 10781/1999 and 98/2000)

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Coram: Deputy High Court Judge S. Kwan in Chambers

Date of Hearing: 29 June 2000

Date of Decision: 29 June 2000

Date of Handing Down Reasons for Decision: 5 July 2000

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REASONS FOR DECISION

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1. This is an application taken out by the 3rd Defendant, Kenly (HK) Ltd for leave to appeal against the award made by a Presiding Officer of the Labour Tribunal, Mr K T Wong, on 16 May 2000.

2. The 11 Claimants' claim is for arrears of wages and overtime allowance between 18 January 1999 and 15 March 1999. The 1st Defendant was the principal contractor, the 2nd Defendant was the sub-contractor of the 1st Defendant and it had sub-contracted the work to Kenly, which had in turn sub-contracted the work to the 4th Defendant. The 4th Defendant was the employer of the 11 Claimants. The Claimants' claim was brought under Part XIA of the Employment Ordinance, Cap. 57, Sections 43C and 43D, which are to the effect that if wages shall become due to an employee who is employed by a sub-contractor and the employer has not paid the wages within the period as required by statute, such wages shall be payable to the employee by the principal contractor or by the principal contractor and every superior sub-contractor to the employer, jointly and severally, where the employer has contracted with a superior sub-contractor. The liability to pay such wages is limited to wages due for 2 months and such liability would only arise if the notice specified in Section 43D(1) has been served on the principal contractor by the employee within the stipulated period. It is not in dispute that such a notice was served by the Claimants on the 1st Defendant.

3. In the Notice of application for leave to appeal filed by Kenly on 22 May 2000, it was contended by Kenly that the Presiding Officer had erred in point of law in that the Claimants were not the employees of Kenly and that the employees did not provide any services to Kenly. These grounds, which do not seem to me to have any merit as Kenly had apparently misunderstood the basis of the Claimants' claim under the Ordinance, were substituted by the amended grounds filed on behalf of Kenly by its solicitors on 28 June 2000. The substituted grounds were that the Presiding Officer had erred in law in that he had failed to consider that the contract between Kenly and the 4th Defendant, which was the Claimants' employer, had been "terminated by [Kenly] and/or repudiated by the 4th Defendant at the material time". And because the employee's entitlement to recover wages from the principal contractor and every superior sub-contractor to the employer is premised on there being a contractual relationship between the employer and the immediate sub-contractor, it was argued on behalf of Kenly that Sections 43C and 43D are not applicable as the contractual relationship between Kenly and the 4th Defendant had come to an end at the material time.

4. The trial before the Presiding Officer was focused mainly on the dispute whether the Claimants had worked at the site in question in Tai Po between 18 January and 15 March 1999. The site was a large one and it was Kenly's contention that the work records kept by Kenly and the 2nd Defendant did not show any worker of the 4th Defendant had worked on the site between those dates. After considering the evidence of the Claimants, the evidence given by the Defendants' representatives and witnesses, and an independent witness who had hired equipment to the 4th Defendant and carried out repairs to the equipment at the site at the material time, the Presiding Officer came to the view that the Claimants had established their case that they had worked at the site at the material time and are therefore entitled to recover under Part XIA of the Ordinance.

5. It was submitted by Mr Daniel Tang, who appeared for Kenly in this application, that the Presiding Officer had failed to consider and made a finding whether the contractual relationship between Kenly and the 4th Defendant had been terminated at the material time. It is correct that the Presiding Officer did not make an express finding on that question in his judgment dated 16 May 2000. However, in that judgment, the Presiding Officer had summarised Kenly's case, i.e. that Kenly had sent several letters by registered post to the 4th Defendant in January 1999, that there was a meeting of the 2nd Defendant, Kenly and the 4th Defendant on 18 January 1999, that the 4th Defendant had promised it would send workers to resume work but had failed to keep its promise despite various letters sent by Kenly to which the 4th Defendant made no reply, and that Kenly had to arrange for its workers to carry out the work which the 4th Defendant had failed to complete. This would appear to me that the Presiding Officer had borne in mind and had considered Kenly's evidence, which he would appear to have rejected as his summary of Kenly's evidence was followed by his finding on specific matters against Kenly's contention that the Claimants did not work at the site at the material time.

6. Mr Daniel Tang also referred me to the relevant parts of the evidence given by Kenly's representative, Mr Lau Chung Ho and the 4th Defendant's representative, Mr Wong King Ho regarding the question whether the contractual relationship between the parties had been terminated. I note that it was Mr Lau's evidence that he had sent 5 letters by double registered post to the 4th Defendant but when the Presiding Officer asked him to produce evidence of receipt of those letters by the recipient, Mr Lau was unable to do so. There was evidence from Mr Wong of the 4th Defendant that he had not received any notice from Kenly to terminate the contract. He suggested this might be due to the fact that he had changed his address. Mr Wong gave evidence that Kenly's boss Mr Brian Cheng had telephoned him and asked him to resume work on the site and to co-operate with Mr Lau. Mr Wong claimed that he had sent workers to the site after the meeting in January 1999. He stated that during January to March 1999, nobody had informed him that the contract had been terminated. If it had been otherwise, he would not have been allowed to go back to the site during that time.

7. Assuming that the 4th Defendant was in breach of the contract in failing to carry out the work diligently or at all during the end of 1998 and early 1999, and assuming that the 4th Defendant's breach had amounted to a repudiation of the contract, to put an end to the contract effectively, Kenly must accept the repudiation and communicate its acceptance of the repudiation to the 4th Defendant.

8. In my view, on the evidence before the Tribunal, there is no or no adequate evidence to support Kenly's contention that its contract with the 4th Defendant had been terminated by acceptance of repudiation. Even though this issue was not expressly dealt with by the Presiding Officer in his judgment, I am satisfied that there is no reasonable room for argument and he could not have come to any other view.

9. In these circumstances, as there are no or no adequate grounds for this appeal to be pursued, I refuse Kenly's application for leave to appeal.

Representation:

Mr Daniel S H Tang, instructed by Messrs Yuen & Partners, for the 3rd Defendant