CHAN CHEUNG FONG v. NG WING KWOK

IN THE COURT OF APPEAL

No. 107 of 1988

(Civil)

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J U D G M E N T

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Hunter, J.A.:

1. This appeal is brought, pursuant to leave, from a judgment of Deputy Judge Cruden given on 10th May 1988, when he dismissed the appellant employer's appeal from a decision of a presiding officer in the Labour Tribunal given on 17th December 1987. The respondent raised various claims before that Tribunal. The issue of fact which arose was whether his contract of service with the appellant was determined, as the appellant said, on 31st March 1985, or, as the respondent said, on 30th March 1987 when he was constructively dismissed.

2. The presiding officer found in favour of the servant that he was constructively dismissed on 30th March 1987 with the result that he made four awards in the claimant's favour. The first was an award of $6,000 as one month's wages in lieu of notice. Secondly he awarded 11 months' wages for the period from 1st play 1986 to 30th March 1987. Thirdly he awarded a sum for double pay in respect of the year 1986. Fourthly he awarded a sum by way of severance pay on the basis that he was dismissed for redundancy.

3. The claim was made by the respondent on 11th May 1987. The point taken is a point on limitation. It is necessary to refer briefly to certain sections in the Labour Tribunal Ordinance. The first is section 7 which gives the Labour Tribunal exclusive jurisdiction to enquire into and determine the claims specified in the Schedule. These are various claims which might arise as between master and servant. A claim is further defined in the Ordinance as "a proceeding before the tribunal". So if a claim is brought before the tribunal it has to satisfy two things: it has to be a proceeding before the tribunal; and it has to fall within the Schedule. The second point to notice is that this jurisdiction is exclusive. If the matter falls within the jurisdiction of the Labour Tribunal, no other court can entertain the claim at all.

4. That exclusivity is subject to the time limitations in section 9. This provides:-

"(9)    (1) Subject to subsection (2), the tribunal shall not have jurisdiction to inquire into or determine a claim or part of a claim if the cause of action arose more than 12 months before the date on which the claim is filed, unless the parties to the claim, by a memorandum signed by them and filed with the registrar, have agreed that the tribunal shall have jurisdiction.

(2)    When the cause of action in a claim arose partly before and partly after the 12 month period of limitation prescribed by subsection (1), the tribunal may, with the consent of the parties, sever that part of the claim over which it has no jurisdiction and hear and determine the part over which it has jurisdiction.

(3)    Nothing in this section shall preclude the institution of proceedings in the High Court or in the District Court in respect of a claim which, by reason of the expiration of the limitation period prescribed by section (l), is not actionable in accordance with this Ordinance."

It seems to me that one has to note these points under this Ordinance. First, this is an exclusive jurisdiction within time limits. If the claim falls within those time limits, no other court has jurisdiction. Correspondingly, outside that time limit, the only courts with jurisdiction are the District Court and the High Court. There was reference in argument to election and choice and abandonment. Those concepts seem to me to have no meaning in this context. You have to bring your claim before the tribunal that has jurisdiction. You have no choice in the matter; it is taken out of your hands by the terminology of this Ordinance.

5. When one comes to consider these limits, one finds, not surprisingly considering that this is a time limitation section, that the question is when did the cause of action arise? In section 9(1), claim or part of the claim must, in my judgment, be a claim which is advanced before the tribunal and falls within the Schedule. When such a claim is advanced, one considers the date when the cause or causes of action relied upon arose. That means on what date could the claimant have first sued? The cause of action may include proof of facts which go back a number of years. The question is when was that cause of action complete, when could he first sue? If you ask that question of the four claims here, the answer seems to be plain and obvious.

6. The first claim was one months wage in lieu of notice. That cause of action arose when he was dismissed without notice ie on 30th March 1987 The second cause of action was 11 months' wages starting on 1st May 1986. A cause of action for unpaid wages accrues when the wages are unpaid. There were in that claim 11 separate causes of action being advanced, each for a separate month's wages, and each cause of action accrued at the end of month when the wages were unpaid. So that one can see straightaway that all those claims arose within the 12 months' period. The third claim was for double pay for 1986. That could only have accrued at the expiry of the year 1986 and was likewise within the 12 months' period. The four claim, the severance pay, only accrued post dismissal.

7. So in those circumstances, it seems to me to be plain that the Tribunal had a jurisdiction to deal with the claims which it enquired into and upon which it adjudicated. The main complaint which was advanced before Deputy Judge Cruden and this Court is that this was a device, in effect, which was not open to the applicant, because it is said his actual claims or his potential claims for unpaid salary stated the month before. He was employed in April 1986. He was not paid his wages for April 1986. Ergo he had a cause of action for unpaid April 1986 wages which accrued on 1st May. That was outside the limitation period. That was therefore outside the jurisdiction of the tribunal. It is objected that he was not entitled to "sever" this or leave out this claim. Further somewhat remarkably it is said that because this was a potential claim which he did not make and did not advance, that, by some sleight of hand, deprived the Labour Tribunal of the jurisdiction it would otherwise have under the Ordinance.

8. There is in my judgment no substance in this at all. The claim that one has to consider is the claim that has been made. The claims that are made were all within the jurisdiction of the Tribunal. The fact that other claims existed but were not advanced are neither here nor there. One can see straightaway that those claims would have had to have been brought in the District Court. It is still open to this man, if he wishes, as far as I can see, to claim one month's wages in the District Court. But the fact that the potential claim existed and was not made, in no way deprived this Labour Tribunal of the jurisdiction given to it by sections 7 and 9 of this Ordinance.

9. In those circumstances, in my judgment, this appeal fails and must be dismissed.

Cons, V.-P. :

10. I agree with all that my Lord had said, and only add that Mr Poon has ably presented against our interruptions an appeal that was hopeless from the beginning.

Clough, J.A. :

11. I also agree and have nothing to add.