THIAW DOUDOU BADIANE v. WILLIAM E. CONNOR & ASSOCIATES LTD

HCLA 37/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 37 OF 2015

(ON APPEAL FROM LABOUR TRIBUNAL

CLAIM NO. 3561 OF 2014)

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DECISION
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1.  This is the claimant’s application for leave to appeal on point(s) of law against the decision of the Labour Tribunal (“Tribunal”) made in claim no. 3561 of 2014.  The Tribunal gave its reasons for decision in these matters at a hearing on 26 August 2015.  There was an application by the claimant to review the Tribunal’s decision, which was dismissed on 10 September 2015.  Written reasons for decision were given by the Tribunal on 23 October 2015 (“Decision”).

2.  Although the claimant’s application (Form 14) refers to the determination of the Tribunal dated 10 September 2015, his application must be treated as one against the Decision.

3.  The material facts of this case had been set out in the Decision.  Very Briefly, the Tribunal found that although the claimant had an agreement (“Agreement”) with the defendant under which the former agreed to be employed by the latter, on the very same day when they entered into the Agreement the claimant was seconded to work for a Mainland company related to the defendant (“Mainland Company”), and for which purpose a secondment agreement and an employment agreement were signed between the claimant and the Mainland Company (the defendant was also a party to the secondment agreement).  Those agreements were respectively governed by Hong Kong law and Mainland law.

4.  On 25 July 2014, the claimant’s employment was terminated by an “Exit Letter” served on him by the defendant to take effect on 1 August 2014.  By an email dated 1 August 2014 to the claimant, the defendant confirmed that both the employment with the defendant and the Mainland Company were terminated. 

5.  According to the findings of the Tribunal, the Mainland Company had fully discharged its payment obligations to the claimant consequential upon the termination of employment.  There was a termination agreement (“Termination Agreement”) signed between the Mainland Company and the claimant wherein it was stated that there would not be any further dispute upon signing of that document. 

6.  The issue before the Tribunal was whether the claimant was entitled to various payments from the defendant under the Employment Ordinance (Cap 57), eg, payment in lieu of notice of termination, consequential upon the termination of his employment with the same. 

7.  The Tribunal found that the Agreement was a sham.  The claimant had never worked for the defendant.  Indeed, he was, in truth, employed to work for the Mainland Company.  In this regard, the Tribunal had received the evidence of the Chief Financial Officer and director of the defendant to the effect that the claimant was employed to work in the Mainland, and the secondment agreement was used for visa and tax purposes. 

8.  The Tribunal also took the view that, as an alternative, the Agreement was never performed, and that the claimant had only ever worked for the Mainland Company.

9.  Turning to the grounds of appeal.  They are not entirely easy to understand.  The first ground is a complaint that insufficient reasons had been given by the Tribunal in dismissing the claimant’s case.  I am unable to see how that complaint can get off the ground in light of the Decision and the transcript of the reasons for decision given by the Tribunal on 26 August 2015. 

10.  The second complaint concerns the finding of the Tribunal that there was no performance rendered by the claimant under the Agreement.  The claimant’s suggestion that such performance was never disputed by the defendant is plainly wrong.

11.  Further, I am unable to see how the admission of liability for terminal payment by defendant, as reflected in the Amended Award, can assist the claimant because it was stated in paragraph 2 of the Decision that the defendant agreed to the terminal payment for the purpose of settlement.

12.  The third complaint concerns the finding of the Tribunal in connection with the termination payments made to the claimant by the Mainland Company.  The claimant says that the Tribunal was wrong to hold that the payments made by the Mainland Company had discharged the defendant’s liabilities to him.  Paragraphs 33 and 34 of the Decision, under the heading of “Conclusion”, stated as follows :

“33. As fact finding, it was held that the employment contract was either a shame (sic) or the Claimant had never performed. At all material times, the Claimant was only worked as QA Director (Greater China) for the Shanghai Company.

34. Moreover, I accepted the evidence from the Defendant that all payment due was made and all the items claimed by the Claimant was already settled upon the termination of Secondment Contract in Mainland China.  The payment was made for termination between the Claimant and the Defendant.  I refused to accept the termination and payment made for the same was solely for the Shanghai Company and nothing to do with the Defendant.”

13.  With respect, there appears to be certain confusion or lack of clarity on (a) the issue whether the defendant was or was not liable to the claimant for any payment given that the Agreement was a sham or that it was never performed and (b) why the payments made by the Mainland Company had the effect of discharging the liabilities of the defendant to the claimant (if any).  On the face of the Termination Agreement, the payments were to discharge the Mainland Company’s obligations under Mainland law.

14.  However, notwithstanding the unsatisfactory aspects of the Decision as identified in the preceding paragraph, I do not believe that the finding of the Tribunal that the Agreement was a sham (or that it was never performed) can be challenged.  It was a finding of fact, which was supported by evidence before the Tribunal (see, eg, paragraph 7 above).  I disagree with the claimant’s submissions that such finding was unsupported by evidence or irrational. 

15.  Finally, I see no substance in the claimant’s submission that his duties extended beyond Shanghai into other areas of China and that such extended duties were carried out under the Agreement.  Clause 6 of claimant’s employment contract with the Mainland Company stipulated that he might be required to work outside Shanghai or even China. 

16.  Accordingly, I am unable to see why the claimant is entitled to the various payments claimed against the defendant.  

17.  In the premises, this application is dismissed.