XCHRX LOK MING RESTAURANT v. LAU KWAI CHONG AND ANOTHER

HCME 7/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO. 7 OF 1999

(On appeal from Minor Employment Claim

No. HCEA 1466 of 1999)

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REASONS FOR DECISION

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The applicant was the employer against whom two workers claimed wages in lieu of notice of dismissal. According to the records of the Minor Employment Claims Adjudication Board ("the MECAB"), an Adjudication Officer conducted a hearing on 28th September 1999. During the hearing, the applicant allegedly indicated that he was willing to settle by meeting the claims halfway. The workers apparently agreed. The Adjudication Officer then recorded a settlement.

2. The applicant now seeks leave to appeal on the grounds that (1) the actual wages of the workers were not the same as the amounts claimed; (2) there was fraud on wages and (3) the workers left employment on their own accord, there was no dismissal.

3. Obviously, there is no point of law advanced by the applicant for appeal. However, I can see that there may be a problem with the Adjudication Officer recording an award by settlement without trial.

4. Whereas the Labour Tribunal is by section 3(1) of the Labour Tribunal Ordinance, Cap. 25 constituted as a court of record, the MECAB has no such status. A court of record has inherent powers and may of course approve settlement. The MECAB not being a court can only derive adjudication powers from its enabling statute. The only relevant provisions I can find in this regard are:-

"5. Jurisdiction of the Board

(1) Subject to subsection (3), the Board shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule.

14. Conciliation certificate and settlement

(1) The Board shall not hear a claim until a certificate signed by an authorized officer is filed with the registrar to the effect that -

(a) one or more of the parties have refused to take part in conciliation;

(b) conciliation has been attempted but no settlement has been reached;

(c) conciliation is unlikely to result in a settlement being reached; or

(d) conciliation may prejudice the interests of a party.

(2) If a settlement of a claim is reached, the terms of the settlement shall be reduced to writing in such form as the registrar may specify and signed by the parties to the settlement.

(3) A settlement, which has been reduced to writing and signed by the parties thereto, shall be filed with the registrar.

(4) A settlement filed under subsection (3) shall be treated for all purposes as if it were an award of the Board."

5. It seems to me that an Adjudication Officer must resolve a claim by determination. He cannot approve a settlement for which the procedure prescribed in section 14 (2) and (3) of the MECAB Ordinance, Cap. 453 must be followed. Thus, there is doubt as to the validity of the "award" made by the Adjudication Officer.

6. Mr. Ma who appeared before me as the applicant's representative also says that the Adjudication Officer refused to hear him. The records of the MECAB show that the Adjudication Officer insisted on the applicant appearing in person. In fact, the applicant had no personal knowledge of the dispute. The applicant is the registered proprietor according to the Business Registration Certificate. Mr. Ma is the holder of the general restaurant licence for the business and a hidden partner. It was Mr. Ma who hired and dealt with the workers. In the circumstances, it was almost a necessity for Mr. Ma to present the applicant's case. In principle, provided that Mr. Ma, not being a lawyer, was properly authorized by the applicant to appear on his behalf, the MECAB should allow Mr. Ma to present the applicant's case.

7. Mr. Ma also complains that the Adjudication Officer steam-rollered the applicant into settling with the workers. Contrary to what the record shows, the applicant did not offer to settle. It was the Adjudication Officer who proposed payment of half the claim. The applicant agreed in the face of such indication from the august Adjudication Officer.

8. Had he been permitted to present the employer's case, Mr. Ma alleges that the workers gave 7 days' verbal notice of resignation. However, on the day before they were due to leave, the workers asked to stay till the end of the month. Mr. Ma had a discussion with them. Subsequently, the workers who worked in the kitchen started to engage in sabotage tactics. For instance, unwashed vegetable were used to make soup for customers. If there is truth in some of these allegations, the workers should not be entitled to any payment in lieu of notice. Moreover, Mr. Ma complains that the workers inflated their claim. Their monthly salary was $13500, not $18750 as claimed.

9. In all the circumstances, I think there may be serious questions to be considered on the validity of the MECAB "award" in this case. In any event, perhaps a re-trial is warranted. Accordingly, I grant leave to appeal generally.