MANETTA & CO LTD v. YIP KWONG-YING ROSETTA

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 83/86

(CLAIM No. 2347 & 2430/86)

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J U D G M E N T

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1. It is conceded by the Appellant that on the facts found by the learned Presiding Officer, his determination, was proper but a retrial is sought, because, it is submitted, the Appellant did not "have a fair trial".

2. The Presiding Officer had before him two claims lodged by two employees against the same employer, the Appellant. One employee was claiming wages in lieu of notice following an unlawful summary dismissal. The other was claiming money due under her contract of employment. The Presiding Officer heard both claims together. Before any evidence was adduced each claimant outlined her case and the Appellant's authorised representative informed the Presiding officer of the matters of fact in dispute. The claimant for wages in lieu of notice gave her evidence first followed by the other claimant. Each was cross-examined by the Appellant's representative. At the conclusion of their evidence the Appellant called two witnesses. Both gave evidence relevant to the case of the first claimant. No evidence was called by the Appellant relevant to the case of the second claimant. At the conclusion of the evidence, all parties were given the opportunity to address the Tribunal. The Appellant's representative addressed the Tribunal on the merits of each case.

3. Section 24 provides as follows :-

"(1)     If 2 or more claims are filed and it appears to tribunal that - (a) a common question of .............. fact arises in both or all of them; ............ or (c) it would be in the interests of justice, the tribunal may order that such claims be joined.

(2)     The power conferred by this section may be exercised notwithstanding that an inquiry into or hearing of one or more of the claims has been commenced."

4. Here there was a common question of fact in the relationship of each claimant to the Appellant. Although the record does not recite any formal order made by the Presiding Officer, it is clear that he did hear the two claims together.

5. The Appellant points to the absence of the formal order of joinder, the failure to give reasons for hearing the two claims together and the lack of assistance from the Presiding Officer to the Appellant in presenting its case in support of a submission that a "material irregularity at the hearing deprived the Appellant of a fair trial".

6. A fatal flaw in the Appellant's submission is that it fails to recognise that the labour Tribunal has not been east in the traditional common law mould. A Presiding Officer must hear a claim in an informal manner (s. 20(1)), and ensure that there is no avoidable delay in the determination of claims (s. 16). He can pursue an active investigative role by calling whatever witnesses he thinks may be of assistance in his determination, ordering the production of whatever exhibits he thinks are relevant and putting questions to any party or witness as he thinks fit (s. 20(.2)). He is free from the constraints of the rules of evidence and can pay regard to any evidence which he considers relevant (s. 27(2 )). No barrister or solicitor who is not a party to proceedings has any right of audience before him (s. 23(2)). The procedure is inquisitorial not adversarial. It is a forum free from the trappings of formalism and legalism. Submissions appropriate in highlighting failure to observe a requirement of a radically different form of procedure are therefore highly unlikely to be of substance So it is here. There would have been avoidable delay had the Presiding Officer conducted two hearings. There would have been the introduction of unnecessary formality had he proceeded to record the obvious reason which prompted. him to hear both claims together. The record shows that the Appellant had been assisted, as the ordinance requires, in the preparation of its case by a Tribunal Officer. There was in short no irregularity in procedure and no impediment to the proper presentation of the Appellant's case.

7. The appeal has no merit and is dismissed.