VAN LEUVEN LODE v. UNIVAN SHIP MANAGEMENT LTD

HCLA29/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 29 OF 2006

(On appeal from Labour Tribunal Claim no. LBTC 5322 of 2005)

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DECISION

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1.  The Claimant applies for leave to appeal against the decision of the Deputy Presiding Officer made on 15 August 2006.  By the decision, the Deputy Presiding Officer dismissed the claimant’s claim with costs.

Background

2.  Between May 1998 and December 2002, the claimant was employed by the defendant as a system analyst.  The employment was terminated on 19 December 2002.  Subsequently, the claimant brought a claim against the defendant in the Labour Tribunal (Claim no. LBTC 8607/2003).  On 5 March 2004, the claimant was awarded wages in lieu of notice, long service pay and air ticket fare totalling HK$113,771.18. 

3.  On 17 October 2005, the claimant commenced another claim in the Labour Tribunal (LBTC5322/2005) claiming payments for overtime and holiday and rest day during his employment with the defendant.  Owing to the six years limitation period, the claim was eventually limited to the period between October 1999 and December 2002.

4.  The claimant claimed that in the course of his entire employment with defendant, he was compelled to work on all public holidays and rest days and he had performed over 1600 hours of overtime work, but had not been remunerated by the defendant.  It is also his case that he did not know his legal rights and entitlements until after the termination of his employment.

5.  The defendant contested the claim. In respect of the overtime work claim, the defence was that there was neither statutory nor contractual basis for it.  As for the rest day and holiday claim, the defendant said the claimant had been given a rest day on each Sunday and there was no record of the defendant signing in to work on Sundays, though it was the company’s practice to require staff to sign in.  The defendant however accepted that it was possible that the claimant might have attended the office to work on rest days and public holidays, but that was on a voluntary basis.

6.  The trial of the claim took four days. A number of witnesses

were called.  Apart from himself, the claimant called three witnesses and the defendant also called four witnesses.

The decision below

7.  In the end, the Deputy Presiding Officer dismissed the claim and awarded costs to the defendant in the sum of $20,928.  It is against this decision that the claimant now seeks leave to appeal.

8.  In respect of the overtime claim, the Deputy Presiding Officer found there was no agreement between the parties that the claimant was entitled to receive payment for overtime work.

9.  As for the holiday and rest day claim, the Deputy Presiding Officer considered that the evidence did not support the claimant’s case that he was forced or compelled to work on rest days and public holidays. He found that even when the claimant had returned to office on Sundays and public holidays, the evidence did not show he had worked the usual working hours so as to entitle him to claim under the Employment Ordinance.  He further found that the claimant’s attendance on Sundays and public holidays was voluntary and the claimant did so out of his belief that this was a proper thing to do, and out of obedience and deference to his boss, who was a friend of his mother, and in conformance to the culture and norm of the company.       

The claimant’s ground of appeal

10.  As set out in the Form 14 application for leave to appeal, the main thrust of the claimant’s appeal is that the Deputy Presiding Officer was wrong to find he was not compelled to work on the basis that (a) he should have known the law regarding rest days, and (b) he could not prove he would be dismissed for refusing to work on rest days.

11.  In oral submissions, the claimant raised the following arguments in support of his intended appeal:

(1) He did not know it was illegal to work on rest days and holidays.  Even if he did know, it was immaterial.  The decision of HCA1924/2002 was cited in support.

(2) He was compelled to work on Sundays and holidays. The memos issued by the defendant show that the staff were required to work on Sundays and holidays.

(3) He had no option because he would be dismissed if he were to refuse or to confront his boss.  There was evidence before the Tribunal that the defendant was a harsh and bad employer who would readily dismissed the staff summarily and did not observe the employment law.

(4) If it was voluntary or optional to work on Sunday and holiday, it was not possible that some 30-40 people all returned to the office between 10am and 1pm. 

(5) The Deputy Presiding Officer had found all defence witnesses untruthful and the claimant’s witnesses truthful.  He could not have found the claimant’s case not proved. 

Reasons for decision on the application for leave to appeal

12.  Under section 32(1) of the Labour Tribunal Ordinance, cap.25, decisions of the Labour Tribunal may only be appealed on the grounds that the decision is erroneous in point of law and/or is outside the jurisdiction of the Tribunal.  Accordingly challenges as to findings of credibility and facts are not within the permissible scope of appeals from the Tribunal.

13.  It is clear from the arguments advanced by the claimant that he is in substance challenging the Deputy Presiding Officer’s finding that the claimant was not compelled to work on Sundays and holidays.  This is a finding of fact.  It is not open to the claimant to seek to appeal a finding of fact made in the Tribunal, unless it can be said that there was no or proper evidential basis for it.             

14.   In respect of the witnesses called, the Deputy Presiding Officer had found the 1^st and 3^rd witnesses of the claimant (Mr Joshi and Mr Arora) to be credible and their evidence to be truthful.  As for the 2^nd witness of the claimant, Mr Grover, the Deputy Presiding Officer considered his evidence to be truthful in general, but he did not accept his evidence that he was compelled by his superior to work on Sundays and public holidays.  Mr Grover had also brought a claim against the defendant for rest day and statutory holiday and other payments, and the claimant was one of his scheduled witnesses.  As for the defence witnesses, the Deputy Presiding Officer found the 1^st defence witness (Mr Lo) to be credible, but considered he was evasive and not forthcoming in answering some of the questions. As for the other defence witnesses, the Deputy Presiding Officer did not find them to be credible and reliable witnesses.

15.  In his carefully prepared Decision, the Deputy Presiding Officer had summarized the evidence of each of the witnesses. On the point of whether the claimant was compelled to work on Sundays and public holidays, Mr Joshi’s evidence in court was that during his employment with the defendant, he himself did work from 10am to 1pm on Sundays and public holidays out of a sense of loyalty. He said there were a number of occasions when the boss asked him not to come to work on Sundays.  It is also his evidence that his superior never forced him to come to work on Sundays or public holidays. He confirmed that the claimant had come to the office on Sundays.  He testified that staff  who came to work on Sundays could choose to leave the office any time they chose to.  It should be noted that Mr Joshi had already left the defendant’s employment in 2004 and he was subpoenaed by the claimant to give evidence.

16.  In the case of Mr Arora, he was dismissed by the defendant in 2002 and had litigated with the defendant in the Labour Tribunal.  He was also called by the claimant to testify in his previous claim against the defendant.  It is evident from the Decision that the Deputy Presiding Officer was impressed with him and his evidence.  Mr Arora’s evidence was it was a norm in the defendant company that everyone worked for long hours.  The staff habitually stayed on to finish their work and it was a culture in the company that people would come in to work on Sundays and public holidays.  He considered the claimant’s contention about the possible consequences for not working on Sundays and public holidays, such as dismissal, to be hypothetical.  He knew of no one being dismissed for not working on Sundays and public holidays.

17.  Mr Joshi and Mr Arora’s evidence in court does not support the claimant’s case that the staff, including himself, worked on Sundays and public holidays out of compulsion or fear of being dismissed if they did not do so.  They are witnesses called by the claimant.  Both had left the defendant’s employment.  In the case of Mr Arora, he was dismissed by the defendant.  They are undoubtedly independent witnesses as they have no interest to serve in giving evidence.  Their evidence should carry great weight.  On their evidence, the Deputy Presiding Officer is amply justified in finding that the claimant was not compelled to work on Sundays and public holidays and rejecting the claimant’s case that he would be dismissed if he did not do so.   It is irrelevant that the Deputy Presiding Officer did not find the defence witnesses to be impressive or credible since his own witnesses do not support his case. 

18.  Further, the fact that the other claimant’s witness, Mr Grover, had said he was compelled by his superior to work on Sundays and public holidays does not mean that the Deputy Presiding Officer could not have come to his finding.  Plainly, he had rejected this part of Mr Grover’s evidence.  As the trial judge, the Deputy Presiding Officer had the opportunity to see and listen to the witnesses.  It is within his duty and power to assess and evaluate the witnesses’ evidence and the other materials before the Tribunal and to make findings and conclusions from them.  It is trite law that an appellate court would be slow to interfere, let alone overturn, findings of facts made by the trial judge. 

19.  In coming to his finding that the claimant was not compelled to work on Sundays and public holidays, the Deputy Presiding Officer had already taken into account the defendant’s memo dated 29 June 2002: see paragraphs 35 and 41 of the Decision.  His view that it did not indicate that the claimant was required to work Sundays, let alone public holidays is not unjustified, having regard to the content.  In any event, the memo was only one piece of evidence adduced at trial.  There is other evidence on the point before the Deputy Presiding Officer.  It is open to him to weigh and consider all the relevant evidence before concluding on the issue.  It is clear from the Decision that the Deputy Presiding Officer had carefully analysed and deliberated upon the documentary and oral evidence before coming to his conclusion.  There is no arguable basis to overturn his factual finding that the claimant was not compelled to work on Sundays and public holidays.

20.  For these reasons, points (2) to (5) of the claimant’s arguments do not reveal any or any arguable point of law.

21.  I turn to deal with point (1) of the arguments, namely, whether the claimant knew about the lawfulness of working on rest days and public holidays and the materiality of such knowledge.  The Deputy Presiding Officer had in paragraphs 36 and 37 set out his observations on this issue.  Again, those comments are open to him.  He had also given reasons for his views.

22.  The claimant however said whether he knew of his rest day entitlement under the employment law was irrelevant, relying on the case of Leung Ka Lau & Others v. The Hospital Authority (unreported) HCA1924/2002, 1 March 2006.  He argued that the plaintiffs, who were public hospital doctors, would no doubt be aware of their legal rights, yet their claim on rest days was successful. 

23.  Three points need to be made about this case.  Firstly, the doctors were previously employees of the government, who as a matter of law is not subject to the Employment Ordinance: see para.81 of the Judgment.  Secondly, Stone J found in light of the honorarium system which the Hospital Authority continued to operate after it took over the management of the hospitals and other matters, most of the doctors were under the mistaken belief that they had to work on rest days and did not have a clear grasp of their rights: see paras.217-228 of the Judgment.  Thirdly, some doctors had long before bringing the litigations raised questions about their long working hours: see paras.91-93 of the Judgment.

24.  Contrary to the claimant’s belief and argument, the doctors did not in fact fully appreciate their legal position with regard to working on rest days.  At the same time, some doctors had queried the position but never got to have their position clarified.  In the present case, the Deputy Presiding Officer did not accept that the claimant was under any misapprehension of his legal position such that there was no informed consent to work on Sundays and public holidays.  The Deputy Presiding Officer had further commented on the fact that the claimant never raised any query or complaint about the position. The factual matrix in the two cases is thus rather different.

25.  Accordingly, point (1) of the claimant’s argument raises no or no arguable point of law.                            

Res judicata

26.  Before concluding on the leave application, I feel obliged to point out that by reason of the doctrine of res judicata, it must be highly doubtful, to say the least, that the claimant should have been allowed to bring the present claim.

27.  In Yat Tung Investment Company Limited v. Dao Heng Bank Limited [1975] AC 581, Lord Kilbrandon referring to the doctrine in its wider sense, said: “It becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.”  Under the doctrine, litigants are required to bring forward their whole case, and will not, save under special circumstances, permit a party to re-litigate in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case: Henderson v. Henderson (1843) 3 Hare 100, at 115.      

28.  The present claim for overtime, rest day and holiday payments is a claim arising from the claimant’s employment contract with the defendant.  It is in nature no different from the previous claim for wages in lieu of payment and long service pay, which also arose out of the employment contract. Prima facie, these claims could have been and should be made in the same litigation. The claimant accepted that when he brought his previous claim, he had read the Guide of the Labour Department and was aware of the statutory position on rest days and statutory holidays.  He said, however, he did not then know that he could claim for compensation and he only knew about this at a later stage.  This does not strike me as affording an exception to the doctrine of res judicata.  Clearly, with reasonable diligence, the claimant would be able to establish the legal position and he could have included the present claim in his previous case against the defendant. 

Conclusion

29.  For the reasons indicated above, the claimant has not shown that his intended appeal involves any or any arguable points of law.  Accordingly, the application for leave to appeal is dismissed.