Shah Purna Bahadur v. English Schools Foundation

HCLA 13/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE LABOUR TRIBUNAL APPEAL NO 13 OF 2013

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1410 OF 2013)

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R U L I N G

(Leave to Appeal)

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1.This is the application by the claimant for leave to appeal against the determination of the Deputy Presiding Officer (“PO”) of the Labour Tribunal on 13 September 2013 under LBTC 1410 of 2013.  The reasons for PO’s decision were given on 21 October 2013 (“Decision”).  

2.The claimant was employed by the defendant as a resident caretaker between 1 September 2001 and 19 November 2012, and his claim against the defendant in the Labour Tribunal was for one item of overtime pay only.

3.It was found by the PO, in paragraphs 26 to 30 of the Decision, that even though overtime payments had actually been paid by the defendant to the claimant in the past, these were in nature payments for the claimant’s special duties with his prior consent, and such payments did not imply or amount to an agreement for overtime work compensation for the claimant’s usual daily duties in question.  The PO found and concluded that there was no agreement between the claimant and the defendant in regard to overtime payment for his usual duties. 

4.The PO further found that the claimant’s assertion of his working overtime was unreliable and he refused to accept the same.

5.The claimant’s evidence was considered by the PO and the above were findings of fact made by the PO.  The claimant had made further submissions during the hearing on the overtime work he had carried out, or work which were outside the scope of his usual duties, but these had already been considered by the PO.

6.Under section 32 of the Labour Tribunal Ordinance (Cap 25),  leave may be granted to appeal against the Decision on the grounds that the PO was erroneous in point of law or the Decision was outside the jurisdiction of the Labour Tribunal.

7.There was no error in point of law on the part of the PO nor was the Decision outside the jurisdiction of the Tribunal.

8.In the above circumstances, I dismiss the claimant’s application.

The Appellant appeared in person