Chan Wing Cheong Virchow v. Intech Digital Technology Ltd

HCLA46/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 46 OF 2007

(ON APPEAL FROM LBTC 5572 OF 2006)

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

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

Before : Hon Yam J in Court

Date of Hearing : 4 February 2009

Date of Judgment : 25 February 2009

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

J U D G M E N T

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

1.The claimant was the employee of the defendant under a written contract stated to commence on 1 May 2006.  

2.The Tribunal awarded the claimant :

(A) wages in lieu of notice for seven days;

(B) arrears of wages;

(C) overtime payments;

(E) wages for annual leave;

(F) reimbursement of expenses on mobile phone; and

(G) reimbursement of travelling expenses.

3.The Tribunal disallowed the claimant’s claim for :

(D) compensation on loss of personal properties; and

(H) additional payments.

4.The defendant appealed to this court on 5 December 2008.  They were not in logical sequence and therefore I will consider them in another sequence.

5.The defendant contended that the written agreement was signed on or about 22 August 2006 and therefore the contract of service should start therefrom and not from 1 May 2006.  It further contended that :

“Except for a few days in May, where [the claimant] assisted in preparations for and during a tradeshow, no work consistent with his future employment was done.”

6.The findings of facts made by the learned Presiding Officer, Mr Philip Wong, was against the defendant’s contention.  There is no arguable point of law involved in this ground and therefore this ground of appeal cannot be entertained.

7.Secondly, the defendant claimed that instead of termination of employment by notice they have grounds to dismiss the claimant summarily under section 9 of the Employment Ordinance.  However, the Presiding Officer held that those various causes advanced by the defendant were not sufficient to warrant summary dismissal. 

8.Again, this is a finding of fact and there is no arguable point of law involved.  In any event, I agree with the conclusion of the Presiding Officer.  The defendant could not change the dismissal by giving notice to one of summary dismissal.  Those allegations against the claimant were not made out at all.

9.Thirdly, the defendant submitted that the Tribunal has no jurisdiction on the claimant’s claims for reimbursement of expenses under paragraph 2, (F) and (G) of the Award.

10.This is in fact a misunderstanding of the jurisdiction of Tribunal under section 7 of the Schedule to the Labour Tribunal Ordinance, Cap. 25.  The claim was under the employment contract and non-payment of those expenses properly incurred must be a breach of the terms of the employment contract.  There is no room for contending that the Tribunal has no jurisdiction to make those awards.

11.The fourth point advanced by the defendant is in similar term in that it contended that :

“The return of advances totalling US$2,100 and HK$6,322, in the absence of successful claims for expenses, was out of jurisdiction of the Tribunal.”

Apparently, the defendant was claiming in the Small Claim Tribunal for these two sums of advances and they would like to use these two sums to set off the claimant’s claims or Award in the Labour Tribunal.  However, this claim in the Small Claim Tribunal is still pending.  Although the defendant alleged that the claimant has been delaying this case by his poor attendance and failure to submit documents, this is a matter for the Small Claim Tribunal and should not be taken into the account in this appeal. 

12.Finally, the defendant is not satisfied with the Award of costs in the sum of $5,245, being 4/5 of the loss and expenses incurred by the claimant in the tribunal below.  The defendant contended that an offer has already been made by the defendant to the claimant close to the total award in December 2006.  

13.However, all these have already been taken into account by the Presiding Officer and there is no arguable points of law that the Presiding Officer erred in law in his apportionment of costs.  Since the defendant cannot succeed in this appeal, there is no basis for interfering with the Award of Costs below.

14.In the end, this appeal is dismissed.  In respect of costs, the claimant has attended this court three times, and by way of summary assessment I consider that the claimant is entitled to costs in the sum of $3,000 as in line with the costs assessment in the tribunal below.  Accordingly, I make an order nisi that the defendant shall pay the claimant by way of costs summarily assessed at $3,000 and such an order will be made absolute 14 days after the handing down of this judgment.

The Claimant (Respondent ) in person, present

The Defendant (Appellant), represented by Mr Adrian John Peirse,   in person, present