MOHAMMAD JAVID v. MADA CONSTRUCTION & ENGINEERING LTD.

HCLA 47/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 47 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL
CLAIM NO. 230 OF 2002)

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JUDGMENT

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1. This is an appeal against the decision of the Labour Tribunal in Labour Tribunal Claim No. 203 of 2002.

2. The Presiding Officer dismissed the Claimant's claims for wages in lieu of notice and severance pay, or alternatively, terminal pay. The Claimant now appeals to the Court of First Instance.

3. On 26 August 2002, leave was granted to the Claimant for this appeal. The grounds set out by the court in granting leave are as follows.

(1) The Presiding Officer erred in law in failing to have regard to paragraph 3(2)(b) of the first schedule of the Employment Ordinance in determining whether the Claimant had been working under a continuous contract of employment.

(2) The Presiding Officer erred in law in failing to investigate adequately the Claimant's claim that in respect of the five periods of absence from work mentioned in his judgment, four periods were leave taken by the Claimant with the consent of the Defendant and the fourth one was due to lack of work on the part of the Defendant.

(3) The Presiding Officer erred in law in dismissing the Claimant's claim for wages in lieu of notice by reason of the Claimant's absence from work between 28 September to 14 October 2001 without considering the undisputed fact that the Claimant worked for the Defendant on 15 October 2001, and the employment of the Claimant was therefore still subsisting on 15 October 2001.

4. I shall first deal with the first two grounds. In his judgment, the Presiding Officer seemed to have taken the view that due to several periods of absence from Hong Kong, as shown by the immigration records, the Claimant could not have been working during those periods for the Defendant and because of that the employment of the Claimant must have been broken. To be fair to the Presiding Officer, he also said in his judgment that the Claimant was only given no pay leave in respect of one of those periods. Of course, if that finding is correct, one could not quarrel with the conclusion of the Presiding Officer.

5. However, this finding can only be made after due process. It means that opportunity has to be given to both parties to present their case in terms of adducing evidence, calling witnesses and making submissions before the court can make that finding. In the present case, according to the transcript, what happened in the tribunal was that there were some discussions between the Presiding Officer and the parties.

6. In particular, the Presiding Officer drew the attention of the Claimant to an exhibit or a table produced by the Defendant company (Exhibit D13) and that table shows that the Claimant was absent from work for several periods of time. There was a dispute by the Claimant as to whether those records produced by the Defendant company accurately record the days of his absence from work, but at the same time the Claimant did at one point suggest that these periods were leave taken by him.

7. It seems to me that when the matter was before the tribunal, there was a dispute of fact as to whether these periods were leave taken by the Claimant with the consent of the Defendant. The Claimant said that those were periods where he got leave with the consent of the Defendant, whilst the Defendant said that those were unauthorised leave taken by the Claimant on his own.

8. This is a dispute of fact which cannot be resolved without hearing evidence and submissions. According to the transcript, no evidence has been called at the proceedings in the tribunal. So neither party was given any opportunity to cross-examine witnesses of the other side. The Presiding Officer appeared to reach a final conclusion on the basis of the documents placed before him. In my view, this is a serious procedural flaw which by itself may constitute unfairness to the parties.

9. The issue as to whether the Claimant had consent from the Defendant to take leave is a material issue. In the circumstances, the matter cannot be resolved just by reference to documents. So, the finding by the Presiding Officer that the Claimant was only given no pay leave for one of the periods cannot be sustained. For this reason, I must allow the appeal in respect of the claim for severance or terminal payment. The matter would have to be remitted back to the Labour Tribunal for a retrial on that issue.

10. On the other ground of this appeal, this relate to the wages in lieu of notice. The Presiding Officer dismissed that claim on the basis that the Claimant did not turn up for work in between 28 September to 14 October. Again, whether that was unauthorised in the sense that it was without the consent of the Defendant is a matter of dispute. Again that cannot be resolved without hearing evidence and submissions.

11. Further, it seems to me that it was undisputed that the Claimant did turn up for work on 15 October. This implies that his employment was not terminated at that stage. It therefore seems to me that this claim in respect of wages in lieu of notice should also be remitted back to the tribunal for reconsideration and I allow the appeal in respect of that claim as well.

12. In the circumstances, the order I make is that the appeal be allowed and the case be remitted to the Labour Tribunal for retrial before another Presiding Officer. Since both parties are not represented, I propose to make no order as to costs for the appeal.