IP MING WAH TRADING AS WAH NGAN CO. v. LAI TO HEI AND OTHERS

HCLA5/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.5 OF 2000

(ON APPEAL FROM LBTC NOS.5457 AND 5478 OF 1999)

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J U D G M E N T

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1. This is the employer's appeal against the decision of the presiding officer, Mr Fred Sum. The only leave granted to the appellant concerned with the claims of the claimants for wages in lieu of notice, holiday pay and annual leave pay.

2. The main subject of dispute is that the claimants in the tribunal below claimed that the employer only gave them notice of termination on 23 February 1999. Previously, they worked for the employer until 12 February 1999 when they took leave for the lunar new year. They were told to wait for notification to resume work. When they did not receive notification, they went to the site on 23 February 1999 and there and then they saw Mr Ip of the employer who told the claimants that their services were no longer required and their employment were terminated.

3. The employer's version was that they were told on 3 February 1999 that they would no longer be required after 12 February 1999.

4. The only ground of appeal for which leave was granted was that the learned presiding officer erred in adopting an adversarial instead of inquisitorial approach in deciding the application. The case of Chan Suk Bing Angie v. Harbour Phoenix Ltd and another [1992] 2 HKC 459 was relied on.

5. In this case, I do not consider the learned presiding officer has failed to discharge his duty to remind the various parties to substantiate their version by calling witnesses. At the outset, both parties understood the main bone of contention in this respect. The claimants expressed that they had no other witnesses to call. The employer had already presented his case on paper to the Labour Tribunal officer and there was no indication that he had any other evidence to substantiate his version that there was no meeting between the parties on 23 February 1999 either. The fact that the site was actually closed on that day is neither here nor there. Even if the employer could prove that the site was closed that day, that did not mean they had no meeting on that day at the site. Thus, not every failure to investigate a relevant matter would give rise to an appeal.

6. It is not permissible to appeal against a finding of facts and in any event, the learned presiding officer's reason for his decision is sound. The employer had all along emphasized that all the claimants were casual workers. The presiding officer found that there is no reason why he should inform them as early as 3 February 1999 that their service would not be required by 12 February 1999. I do not find, in the circumstances of this case, that the presiding officer has failed to discharge his duty to investigate.

7. In the end, this appeal is dismissed with costs to the various claimants. I accept Mr Pang's submission that I should also adopt the presiding officer's assessment that each claimant should be entitled to $600 for their costs of one day in court and I so order.