Wong Yet-wah Sunny v. Tu Brothers Ltd

DCCJ008096/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

Action No. 8096 of 1977

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Coram: N. P. Power, D.J.

Date of Judgment: 8 May 1978

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Ruling on Jurisdiction

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1. In this matter the Plaintiff claims liquidated damages of (i) $10,000 being one month's salary in lieu of one month's notice (ii) $12,000, balance of salary, being an amount of $3,000 per month alleged to be owing from 1st July 1977 to 31st October 1977.

2. The Defendant Company through its solicitor, Mr. Y. T. Chan, submits that by virtue of s.7(2) and s.9(1) of the Labour Tribunal Ordinance the above claim is not within the jurisdiction of the District Court. S.7(1) provides that the Tribunal has "jurisdiction to inquire into, hear and determine the claims specified in the Schedule". S.7(2) provides that "no claim within the jurisdiction of the Tribunal shall be actionable in any court in Hong Kong". S.9(1) provides that "the Tribunal shall not have jurisdiction to enquire into claims if the cause of action arose more than 6 months before the date on which the claim was filed."

3. The present claim is for wages and salary in lieu of wages for the period from 1st July to 31st October 1977 and was filed in the District Court on 25th November 1977.

4. The material part of the Schedule to the Labour Tribunal Ordinance is as follows :

5. The Employment Ordinance referred to in 1(b), above, clearly has no application as that Ordinance provides, in s.4(2)(a), that it does not apply "to a person employed otherwise than by way of manual labour where wages exceed $2,000 per month". In the present case it is common ground that the wages of the Plaintiff exceeded that figure. Mr Chan's main argument however was centered on 1(a), above, as he contended that the Plaintiff was here pursuing 2 claims each of which was for "a sum of money". The claim for the balance of salary he submitted was clearly a claim arising from the breach of an express term of a contract of employment. I am satisfied that Mr Chan was correct in this submission and that this Court has no jurisdiction to deal with that part of the Plaintiff's claim. Mr Chan further submitted that the claim for "one month's salary in lieu of one month's notice" was a claim for the breach of an implied term of a contract of employment. It was common ground that there was no express term as to salary in lieu of notice but Mr Chan suggested that such a term would be implied into the contract by virtue of s.6 of the Employment Ordinance. This clearly is not so for, as I have pointed out above that Ordinance has no application to the contract of employment under consideration.

6. This part of the claim then is not one for a "sum of money" owing under an implied term but is, in fact, although it is not so worded in the Particulars of Claim, a claim for general damages for wrongful dismissal. They are the kind of damages referred to by Judge Cons, as he then was, in Ma Mou Leung v. Dollar Motors Ltd (1969) D.C.L.R. 21 at 27, where he said :

"The traditional action consequent upon wrongful dismissal is one to recover damages for breach of contract. ".

7. I am satisfied that, as to this part of the claim, I have jurisdiction. It seems to me that the proper course is to adjourn this part of the claim to a fresh hearing date and to give leave to the Plaintiff to amend his claim, during the period of the adjournment, so as to include one for unliquidated general damages. It seems to me that it will be open to the Plaintiff upon the resumed hearing to apply to the Court to further amend his claim, which will then be one for unliquidated general damages, by adding a claim for the balance of salary. This claim will by that time be within the jurisdiction of the District Court as more than 6 months will have elapsed since the cause of action arose. The matter is adjourned to Thursday 1st June. Amended claim is to be filed within 7 days and the amended defence is to be filed within 7 days thereafter.

Representation:

Plaintiff in person.

Mr Y. T. Chan of Messrs Y. T. Chan & Co. for defendant.