Liang Yong Chi and Another v. Vincent Chiang Design O/B Tlm Ltd and Others

HCME 9/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO. 9 OF 2008

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS

ADJUDICATION BOARD No. 267 & 268 of 2008 (C))

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Hearing: 20 November 2008

Date of Handing Down Judgment: 25 November 2008

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J U D G M E N T

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Introduction

1.The applicant is aggrieved by the decision of the Minor Employment Claims Adjudication Board (“MECAB”) dated 22 September 2008 and applies to this court relying on s. 31(1), Minor Employment Claims Adjudication Board Ordinance (Cap. 453).  That section provides:-

“Any party who is aggrieved by a decision of the Board-

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the Board,

may, with leave to appeal granted by the Court of First Instance upon application, appeal to the Court of First Instance”.

Grounds of Application

2.The original grounds of application are in short:-

(a)     MECAB erred in law in failing to find that the claimants were independent contractors, and that there was no contract of employment between them and the applicant;

(b)    there were insufficient findings of fact to support the claims against the applicant;

(c)     the decision is outside MECAB’s jurisdiction because the claims did not involve any contract of employment.

3.Grounds (a) and (b) above rely on s. 31(1)(a), Cap. 453 whereas ground (c) above relies on s. 31(1)(b).  Even though both limbs of s. 31(1) are relied upon, in reality the above grounds are based on one and the same complaint: the claimants’ claims were not based on any contract of employment and should be dismissed for that reason.

4.During the hearing of this application, the applicant added another ground of application: MECAB failed to properly consider, or to accede to, his application to adjourn the re-hearing on 3 September 2008 to afford him an opportunity to be heard.

Background

5.The applicant was the 3^rd defendant in MECAB Claim Nos. MB267 and MB268 of 2008.

6.One of the 2 claimants alleged that, in answer to a newspaper advertisement, he telephoned the applicant and reached an agreement to work for the applicant at a daily wage of $500.  The other claimant alleged that he reached an agreement to work for the applicant in similar manner but the daily wage was $600.  They asked MECAB to make an award regarding their unpaid wages.

7.The claim was heard by MECAB on 13 March 2008.  Only the 2^nd defendant (“D2”) and the claimants attended.  The claimants made the same allegations as above.  D2 also agreed that the applicant was the claimants’ employer and stated that he (being the contractor) had already paid the applicant the sub-contract fees for the work.

8.MECAB awarded the claimants the respective sums of $4,500 and $4,200 (against all defendants) and costs (against the applicant).

9.The applicant applied on 6 June 2008 to set aside the March 2008 decision.  He explained that, by mistake, he thought the hearing was to be held on another date.  MECAB ordered a re-hearing on condition the applicant should pay-in $5,000.  The sum was later paid-in.

10.The re-hearing was conducted on 3 September 2008 but only the claimants attended.  The applicant claimed he was feeling unwell and could not attend.  MECAB ordered:-

(1)     the applicant to pay costs to the claimants;

(2)     another re-hearing conditional upon the applicant paying-in a sum of $5,900 on or before 16 September 2008.

11.Because the applicant failed to make the payment-in, on 22 September 2008, MECAB affirmed its earlier award.

Contract of Employment

12.In view of the materials placed before MECAB (summarized in para. 6 and 7 above), there was ample basis for MECAB to find that a contract of employment was entered into by the claimants with the applicant.  Consequently, MECAB’s finding to such effect does not involve any question of law within the meaning of s. 31(1)(a).

13.In fact, the applicant’s legal representative was unable to identify any such question during the hearing of this application.

Application to Adjourn the MECAB Hearing

14.Whether to adjourn a hearing is a matter of discretion for MECAB.

15.The explanation given for the applicant’s absence on 13 March 2008 is unsatisfactory.  In view of that history, MECAB was quite entitled to view his repeated absence on 3 September 2008 with suspicion, and in effect to reject the applicant’s explanation as being disingenuous.

16.Thus, the decision to proceed with the hearing is not an exercise of discretion which no reasonable tribunal can properly exercise.  Such being the case, it is not a decision which an appellate court will interfere with.

17.Further, MECAB has in fact given the applicant yet another opportunity to have the matter re-heard.  But he decided for his own reasons not to do so.

Conclusion

18.In view of the matters set out above, none of the grounds has merit.  This application is accordingly refused.

Mr Gary K W Tam of Messrs Gary K W Tam & Co, for the 3^rd Defendant