Chum Sek Hung Carman v. Carry on Travel Services Ltd

HCLA 17/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 17 OF 2014

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 1396 OF 2013)

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Before: Hon Mimmie Chan J in Chambers

Date of Hearing: 11 September 2014

Date of Decision: 11 September 2014

Date of Reasons for Decision: 15 September 2014

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REASONS FOR DECISION

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1.This is the application of the Defendant in LBTC 1396/2013 for leave to appeal out of time against the decision of the Presiding Officer of the Labour Tribunal, of 25 October 2013. LBTC 1396/2013 were proceedings instituted by the Claimant for arrears of salary and payment in lieu of notice claimed to be due from her employer, the Defendant.

2.The hearing before the Tribunal took place on 18, 19 and 30 September 2013.  The decision was handed down orally on 25 October 2013, when the Presiding Officer dismissed part of the claimant’s claims for alleged arrears of salary, but made an award in favor of the Claimant, in respect of the guide fees of $1,040 which the Claimant sought as part of her wages in arrears, and $9,691.13 as payment in lieu of notice in respect of the Defendant’s constructive dismissal of the Claimant. 

3.The written Award and Order for payment was sent to the Defendant by mail on 28 October 2013.  It was only on 16 May 2014 that the Defendant applied for time to seek leave to appeal against the decision of 25 October 2013.  This was more than 6 months after the service of the Award.

4.Under section 32 of the Labour Tribunal Ordinance (“Ordinance”), any party dissatisfied with an award, order or determination by the tribunal may, within 7 days after the date on which the award, order or determination was served on him, or within such extended time as may be allowed by the Registrar of the High Court on “good cause”, apply to the Court of 1^st Instance for leave to appeal.

5.There is no dispute that the Defendant had been served with the Award. According to the evidence filed on behalf of the Defendant, Mr Wong, the director of the Defendant, had given evidence at the hearing before the tribunal, so he had full knowledge of the claim, of the proceedings and of the hearing in September, but he was out of Hong Kong on business between 25 and 31 October 2013.  He had authorized Mr Lau, the manager, to represent the Defendant in the hearing and to handle the proceedings.  As Mr Wong was very busy with his business, he did not bother to ask Mr Lau what had happened at the hearing on 25 October upon his return.  According to Mr Wong, he had forgotten all about the hearing.

6.According to Mr Lau and Ms Yuen, the general manager of the Defendant, they were not able to contact Mr Wong to inform him of the Award against the Defendant in October 2013.  Because of the “relative small sum of money” to be paid to the Claimant under the Award, Ms Yuen considered that she was authorized to make payment of the judgment sum without seeking approval from Mr Wong.  There is no dispute from Mr Wong that Ms Yuen was authorized to make the payment.  Ms Yuen and Mr Lau only claim that they had not read the communication that came with the service of the Award regarding the time for appeal, they were unaware of the time limit for appeal, and accordingly no further steps were taken after the Defendant made payment to the Claimant under the Award, whether to inform Mr Wong of the payment or the Award, or otherwise.

7.It was only when the Defendant received notice of other claims brought by the Claimant against the Defendant that they applied for leave, in May 2014, to appeal against the Award out of time.  2 extensions of time were obtained from the Registrar of the High Court.  In my view, the Defendant bears the burden of establishing that there was “good cause” for such an extension of time.  On the evidence they filed, when the Defendant had simply chosen and consciously decided to make payment to the Claimant under the Award, without giving any thought to appealing or in any way challenging the Award for 6 months, they had failed to establish any good reason why the indulgence of the Court should be granted, to give them further time to appeal.  It is pertinent to bear in mind that employment disputes should be resolved quickly and inexpensively, and such purpose and objective of the Ordinance would be defeated if the courts were to be too ready to give leave to appeal, or to grant extensions of time of appeal.

8.In my view, the Defendant had simply failed to show good cause why they should be given extension of time to appeal.  Having fortuitously been granted leave by the Registrar to apply under section 32 out of time, the next hurdle for the Defendant is to establish that there are arguable grounds of appeal, for leave to appeal to be granted.  Under section 32, the party dissatisfied with the award can only seek leave to appeal on the grounds that the award is erroneous in point of law, or outside the jurisdiction of the tribunal.  The court must be satisfied that the intended grounds of appeal are genuine grounds based on error of law, for which leave can be given.  As the Court pointed out in Karchoud, Leila Bent Mohamed v The Incorporated Trustees of the Islamic Community Fund of Hong Kong HCLA 61/2001, 30 January 2002, if a ground is dressed up as an error of law whilst in substance it was a challenge to a determination on questions of fact, leave to appeal cannot and should not be granted.

9.The grounds of appeal stated in the application for leave are that the Adjudicator had failed to examine the evidence and the pattern of work of the Claimant, that the Adjudicator had failed to take note of the absence of MPF contributions made by the Defendant, and had erred in concluding that there was an employment relationship between the Claimant and the Defendant.  It is also claimed that there was no evidence to support the calculations of the guide fee allowed by the Adjudicator.

10.Counsel confirmed at the hearing that the Defendant is not seeking to rely on any complaint that the Adjudicator had failed to investigate any relevant matter.  The ground of the intended appeal (as to the Adjudicator’s failure to examine the evidence) is simply that if the Adjudicator had duly considered the evidence as to the Claimant’s pattern of working with the Defendant, and how she was paid, the Adjudicator should have found that the Claimant was not entitled to one month’s notice even if there had been an employment relationship between the Claimant and the Defendant. 

11.In the Reasons for the Decision handed down by the Adjudicator on 2 September 2014, the Adjudicator applied the test in Poon Chau Nam v Yim Siu Cheung [2007] 10 HKCFAR 156 in his determination of whether a contract of employment existed between the Claimant and the Defendant, and considered in turn various factors which are relevant to this issue.  In so doing, he accepted the Claimant’s evidence as to the terms and conditions discussed and agreed at her meeting with the Defendant’s representatives in November 2011 (“Meeting”), before she commenced work, and rejected the Defendant’s evidence in this regard.  The lack of contributions from the Defendant to the MPF was one of the factors the Adjudicator took into consideration, and referred to in paragraph 19 of the Reasons for Decision.  He made it clear that none of the factors or indicia of employment was individually conclusive, and that the relative importance of any individual factor may vary from case to case.  As a matter of overall impression, the Adjudicator concluded on all the evidence that the relationship between the Claimant and the Defendant was one of employment.

12.It cannot be said that the Adjudicator had erred in law in his approach to the issue of whether there was employment.  Nor am I satisfied that it has been shown that the Adjudicator’s decision on employment is based on a finding of fact or inference from the facts which is perverse or irrational, or that there was no evidence to support it, or that the Adjudicator had failed to give consideration to any relevant factor, or had taken into account irrelevant factors.  The Defendant’s Tour Guideline was only one of the documents considered by the Adjudicator in reaching his decision.  As the Court of Final Appeal emphasized in Kwong Mile Services Limited v Commissioner of Inland Revenue [2004] 3 HKLRD 168 at 181, in an appeal on law only, the appellate court must bear in mind what scope the circumstances provide for reasonable minds to differ as to the conclusion to be drawn from the primary facts found. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that conclusion even if its own preference is for a contrary conclusion.  It is only when the appellate court regards the contrary conclusion to be the true and only reasonable one, that it is duty bound to substitute the contrary conclusion for the one reached by the fact-finding tribunal. 

13.In this case, I am not satisfied that there is any arguable ground of appeal, that the conclusion that there was no employment between the Claimant and the Defendant is the true and only reasonable conclusion that can be drawn from the primary facts found by the Tribunal in this case. 

14.As to whether there was evidence to support the Claimant’s calculation of the guide fee at the rate of $600, it is clear from the transcript that the Adjudicator had explored with the witnesses whether the guide fee had been agreed, how it was calculated, and the occasions on which the guide fee had been claimed by or paid to the Claimant.  He concluded, on the evidence before him, which included the Claimant’s Statement on 14 August 2013 as to the discussion on the amount of the guide fee, that the Claimant had asked for $600 to $700 at the Meeting, that Mr Wong had not raised objection and had accordingly accepted these amounts, and on that basis allowed the Claimant’s claim at $600.  The Adjudicator had considered with the Claimant in her evidence and had questioned her, and the Defendant’s witnesses, on the claims the Claimant had made for each of the tours she had led, which included the particulars such as the dates and the numbers of people in the tours, and in this context, it cannot fairly be said that the Adjudicator had failed to examine the evidence on the Claimant’s “pattern of work”.

15.The arguments made by Counsel for the Defendant are in substance complaints against the Tribunal’s findings of fact and credibility.  Counsel was not able to refer to any evidence in the witnesses’ statements or in the testimony at the hearing which could have supported the finding that the agreement between the Claimant and the Defendant was that the Claimant was to work “on a tour by tour basis”, and that she was not entitled to one month’s notice of termination.   

16.There was nothing inconsistent in the Adjudicator dismissing parts of the Claimant’s claim for alleged arrears of wages, since he considered that in her calculation of the alleged arrears, the Claimant should have made allowance for, and should have deducted from her claim, the commission and tips 小費she had actually received from the Defendant; and finding that there was an employment relationship, such that the Defendant had to make payment in lieu of one month’s notice, in the amount of $9,691.13 to the Claimant.

17.The Courts have endeavored to make it clear in various cases, (James Manuel Ho v Grand Pacific Vacation (Hong Kong) Limited HCSA 5/2004, 29 July 2005 and Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Limited trading as Sheraton Hong Kong Hotel & Towers HCLA 34/2004, 4 June 2004 being examples,) that the Tribunal’s duty to investigate is not absolute, and that the extent of the inquiry to be made by the Tribunal must depend on the individual circumstances of each case.  The manner of investigation is a matter of discretion for the Tribunal, depending on the facts of the case before it, and the appellate court should not interfere with that discretion merely because it would have exercised it in a different manner.  Due regard should be given to the issues in dispute in the case, the materials placed before the Tribunal by the parties themselves prior to the trial and any incontrovertible evidence before the Tribunal.  Having considered the transcript, the facts stated by the parties in their witness statement and the issues raised by the parties on the evidence, it cannot be suggested that the Adjudicator had failed to investigate with the parties any relevant matter which has a reasonable basis, as a result of which a fair and proper determination cannot be attained (per Lam J in Le Thi Bich Thuy Kitty v Sheraton International (Hong Kong) Limited trading as Sheraton Hong Kong Hotel & Towers HCLA 34/2004, 4 June 2004, at para 8).

18.The application for leave to appeal was accordingly dismissed.

Mr Edward Fan, instructed by Cham & Co, for the defendant/appellant