DAHIYA RAVINDER SINGH v. ANGEL GARMENT LTD

HCLA25/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 25 OF 2011

(ON APPEAL FROM LBTC NO. 983 OF 2011)

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JUDGMENT

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In the Labour Tribunal

1.  This is a labour dispute in which the claimant claimed that he was an employee of the defendant.  However the learned Deputy Presiding Officer, Raymund C.W. Chow, Esq., found that the claimant was only an independent consultant with no contract of employment with the defendant.

2.  From the evidence before the learned Deputy Presiding Officer, he found that :

“57. The remuneration for the consultancy service was a commission of 2% upon 15% profit margin of business brought in by the Claimant which included a sum of $15,000 per month as advance payments.

58. There was no adjustment of the said sum of $15,000 to $80,000. The 3 payments of $65,000 from Mr. Mohinani [a director of the Defendant] had nothing to do with the Defendant at all.

59. The termination of the consultancy agreement took place since September 2008 upon a month’s notice from the Defendant to the Claimant.

60. It is common ground that the monthly payments of $15,000 was part of the commission. There was never any adjustment to the rate of the commission. Even if there was a raise to $80,000, it remained part of the commission.

61. There was no agreement between the parties that the advance payments could be kept by the Claimant in the event of the commission being in a lesser amount.  Accordingly, whether or not there was any raise of the advance payments of $15,000 to $80,000, the Claimant ultimately would still be entitled to a commission of 2% only.”

3.  In coming to the aforesaid conclusion, the learned Deputy Presiding Officer had summarised all the available evidence given before him.  He then considered the guideline as laid down in the leading case of Poon Chau Nam v Yim Siu Cheung t/a Yat Cheung Airconditioning & Electric Co. [2007] 1 HKLRD 951, which is a decision of the Court of Final Appeal.  He stated that the proper approach according to this case should be :

“64. In considering whether there has been an employment, the proper approach should be to examine all the features of their relationship against the background to decide whether, as a matter of overall impression, the relationship is one of employment. I shall have regard to the following 11 factors.”

4.  He then listed out all the 11 factors in accordance with the evidence before him and analysed them in detail as directed in the case of Poon Chau Nam.

5.  In conclusion he said :

“90. After considering all the factors, my overall impression is that there has been no employment relationship between the parties.”

The appeal application

6.  The decision of the learned Deputy Presiding Officer can be said to be flawless.  It was in‑depth and thorough.  There was no error of law at all in his whole Decision.

7.  From the “Application for Leave to Appeal on Point of Law” herein and the written submissions of the applicant/claimant, I cannot see any ground which would amount to a reasonably arguable point of law at all. 

8.  Further, in the aforesaid Decision of the learned Deputy Presiding Officer, he nonetheless considered the hypothetical situation if there had been an employment between the claimant and the defendant.  He then decided that there was no ground for the claimant to claim that he was still under the defendant’s employment and therefore entitled to arrears of wages between 1 February 2008 and 31 May 2011 in the sum of $2,900,000.

9.  In this respect, the learned Deputy Presiding Officer decided that :

“96. The Defendant’s agreement with the Claimant [was] obviously terminated since September 2008 as evidenced by their emails between 2 and 4 September 2008.”

Thus he concluded that there was no arrear of wages when the claimant was paid a monthly payment of $15,000 or $80,000 in total, as advance payments but forming part of the commission only.  In the end the claimant was only entitled to commission for his remuneration as agreed between the parties.  It was $28,099.97 (US$3,602.56) as the 2% commission of the sale in the total sum of US$180,127.70.  Thus the claimant had already been paid in advance exceeding his entitled commission; there were no arrears of wages or outstanding payments at all in any event.

10.  Finally, the claimant claimed that he was entitled to claim damages arising out of the defendant’s conduct in conversion, in that the claimant alleged that the defendant had back out of the claimant’s proposed “project KRSNA”.  The claimant’s proposal, as alleged by the claimant, was instead forwarded to the defendant’s another related company called “Multitex”.

11.  However, as decided by the learned Deputy Presiding Officer, there was no contract of employment between the claimant and the defendant.  Accordingly, the Labour Tribunal has no jurisdiction to decide on this cause of action founded in tort. Legally speaking, the learned Deputy Presiding Officer is absolutely correct.  There is no arguable point of law in this ground of appeal either.

Conclusion

12.  For the aforesaid reasons, I would dismiss the claimant’s application for leave to appeal herein.  However, it is only an ex parte application, as provided by the Ordinance, I shall make no order as to costs.