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HCLA 4/2019
[2021] HKCFI 2764
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
LABOUR TRIBUNAL APPEAL NO 4 OF 2019
(ON APPEAL FROM LBTC NO 3480 OF 2017)
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BETWEEN
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GHALE GANJA MAN |
Claimant
(Appellant) |
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and |
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CHINA STATE CONSTRUCTION ENGINEERING
(HONG KONG) LIMITED |
1st Defendant
(1st Respondent) |
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CHINA TECHNOLOGY CORPORATIONLIMITED |
2nd Defendant
(2nd Respondent) |
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Before: Hon S T Poon J in Court
Date of Hearing: 30 October 2019
Date of Judgment: 30 October 2019
Date of Reasons for Judgment: 17 September 2021
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REASONS FOR JUDGMENT
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INTRODUCTION
1. The Appellant claimed against the 1st and 2nd Respondents in the Labour Tribunal for (a) wages in lieu of notice; (b) arrears of wages; (c) bonus; (d) annual leave pay; (e) statutory holiday pay; (f) severance pay; and (g) an alternative claim for terminal payment under s.32O of the Employment Ordinance Cap 57. He alleged that the 2nd Respondent was his employer from 13 December 2014 to 17 August 2017. The 1st Respondent was joined in the proceedings under s.43C of the Employment Ordinance Cap 57, as the principal contractor of the 2nd Respondent.
2. After a trial lasting 4 days[1] before Deputy Presiding Officer Mr Jeremy Law, the Appellant’s claims were dismissed[2] and costs were awarded against him. This is the appeal by the Appellant against the Deputy Presiding Officer’s awards.
THE APPELLANT’S CASE
3. The Appellant’s case depended on whether he was employed by the 2nd Respondent for the entire period from 13 December 2014 to 17 August 2017, which can be subdivided into the following 3 periods:
(a) the 1st period, from 13 December 2014 to 11 September 2016, when the Appellant worked at the Admiralty Station;
(b) the 2nd period, from 12 September 2016 to 31 May 2017, when the Appellant worked at the Hung Hom Station;
(c) the 3rd period, from 1 June 2017 to 17 August 2017, when the Appellant worked at the Hong Kong-Zhuhai-Macau Bridge (“HKZMB”) construction site.
4. For the 1st period, in support of his claim, the Appellant produced an employment contract with the 2nd Respondent dated 12 December 2014 (“the 1st period contract”), indicating that he was employed as a supervisor. There was no personal signature on behalf of the 2nd Respondent on this document, but a copy of the same document was filed by the 2nd Respondent as part of its documentary evidence.
5. For the 2nd period, there was no dispute between the parties that the Appellant was the 2nd Respondent’s employee, the 2nd Respondent accepted that he was employed under a contract dated 19 September 2016.
6. For the 3rd period, the Appellant claimed to have signed an employment contract with the 2nd Respondent, but a copy was not given to him. The Appellant called 3 fellow workers, who gave evidence that they also signed employment contracts with the 2nd Respondent but were not given a copy. They further gave evidence that the Appellant was their spokesperson in communicating with the 2nd Respondent, and it was the Appellant who arranged for them to sign their employment contracts. It transpired that in another case (LBTC 3394/2017), the 2nd Respondent was ordered by the Labour Tribunal to pay these workers arrears of wages.
7. The Appellant produced pay slips, Mandatory Provident Fund (“MPF”) statements and the 2nd Respondent’s employer’s tax returns covering the 1st period, indicating that he was the 2nd Respondent’s employee. Some of the pay slips were issued in the joint names of the 2nd Respondent and its subcontractor Sino Gurkas Construction Engineering Ltd (“SG”).
8. In his evidence, the Appellant claimed that, in the 3rd period, the 2nd Respondent agreed to pay him bonus for “price work”, and forced him to start up a company called MJ E&C Limited. He accepted that the 2nd Respondent gave him a cheque for $100,000 in mid-June 2017, which he had not expected to receive but which he used to pay his team of workers.
9. The Appellant claimed that his employment was terminated on 17 August 2017 by the 2nd Respondent’s managing director Mr Jason Poon through a Whatsapp message. Whatsapp communication produced also showed discussions between the Appellant and the 2nd Respondent on price work calculation.
THE RESPONDENTS’ CASE
10. The 1st Respondent adopted the 2nd Respondent’s stance in the trial and did not adduce any evidence.
11. For the 1st period, the 2nd Respondent’s stance was that the Appellant was in fact employed by its subcontractor SG. He was supplied by SG to work on the 2nd Respondent’s project at the Admiralty Station. The 2nd Respondent claimed that the 1st period contract, relied on by the Appellant, was a fabricated document as it contained references to the “Tai Po water treatment works” which did not exist at the time, and that the clause on holiday pay was different from the 2nd Respondent’s standard terms.
12. However, the 2nd Respondent’s stance was not made apparent until it was put to the Appellant in cross-examination on the 2nd day of the trial. Further, on the 3rd day of the trial, the 2nd Respondent called SG’s managing director Mr Gurung to give evidence and produced for the first time a job application and an employment contract dated 12 December 2014 between the Appellant and SG (“the SG job application and contract”). Mr Poon then gave further evidence that, due to arrangements under its subcontract with SG, the 2nd Respondent paid wages and MPF contributions to the Appellant on SG’s behalf.
13. Recognising that the evidence relating to the SG job application and contract were adduced late by the 2nd Respondent, the Deputy Presiding Officer allowed the same to be admitted in evidence on the ground of relevance, despite the Appellant’s indication that he did not have a proper opportunity to prepare and conduct cross-examination.
14. For the 2nd period, as mentioned above, the 2nd Respondent accepted that the Appellant was employed under a contract to work on a project at the Hung Hom Station.
15. For the 3rd period, the 2nd Respondent’s case was that the Appellant was engaged as a subcontractor for the HKZMB project. Mr Alex Ngai, the 2nd Respondent’s former quantity surveying manager, gave evidence that he and Mr Poon negotiated with the Appellant and agreed on a subcontract. It was a verbal subcontract agreement, and there was no agreement to pay bonus.
FINDINGS OF THE PRESIDING OFFICER
16. The Deputy Presiding Officer, in his Reasons for Decision at [27], set out his findings as follows:
“(i) … No contract was signed by the parties for engaging the [Appellant] to perform either the works for the Admiralty Station Project or for the HKZMB project.
(ii) None of the [Appellant’s] witnesses eye-witnessed any signature of the [2nd Respondent’s] representative on any employment contract … any contract which they signed [was] provided by the [Appellant] and it is questionable whether such contract came authentically from [the 2nd Respondent].
…
(v) [The 1st period contract] is very problematic. Firstly, it was not signed by [the 2nd Respondent]. Secondly, it referred to “Tai Po water treatment works” which did not even exist at the material time … Thirdly, its clause 9 is inconsistent with other employment contracts used by [the 2nd Respondent] on the topic of “holiday & annual leave” … the internal inconsistencies in this document suggests that the [Appellant’s] documentary evidence is not reliable.
(vi) SG has provided a copy of the job application, the signed employment contract between the [Appellant] and SG for the Admiralty Station project. In particular, the job application was dated 12 December 2014, it had the [Appellant’s] passport sized photograph, his work experience and personal details provided in a form, and it was signed by the [Appellant] and noted that he was interviewed by Mr. Gurung. There is nothing to show that these documents provided by SG are false. I therefore accept [the 2nd Respondent] and Mr. Gurung's evidence that the [Appellant] was an employee of SG directly and not [the 2nd Respondent] for the Admiralty Station Project.
(vii) It is clear from the evidence of Mr. Alex Ngai that the arrangement between the [Appellant] and [the 2nd Respondent] was a subcontract whereby the [Appellant] would carry out [work] under an agreed price … Whatsapp communications show that the [Appellant] had tried to negotiate … The table provided by the [Appellant] also clearly shows a calculation of the outcome of "Profit & Loss" … The conclusion to be drawn … is that it is more likely than not that the [Appellant] was a subcontractor for the HKZMB project.
…
(xi) The explanation offered by the [Appellant] that he did not know the reason why [the 2nd Respondent] issued the $100,000 cheque to him is not credible …
(xii) The fact that [the Appellant’s fellow workers] gave evidence that [the 2nd Respondent] kept delaying payment of their wages, and the fact that they, together with others, brought claims against [the 2nd Respondent] in other previous Labour Tribunal cases such as LBTC 3394/2017 lends credit to Mr. Poon's explanation that the [Appellant] took the advance payment without paying his workers in full, hence the workers took legal action to recover their wages against [the 2nd Respondent] ...
(xiii) There is no reference in any of the documents that the [Appellant] would be entitled to any bonus …
(xiv) It is not credible for the [Appellant] to say that he was forced by Mr. Poon to start up a company. In fact, the [Appellant’s] establishment of MJ E&C Limited was done at a suitable timing for the [Appellant] to take up contractual works for himself running a business on his own accord…
(xv) Even if [the 2nd Respondent] had previously reported tax and contributed MPF for the [Appellant] as his employer, it does not necessarily mean that [the 2nd Respondent] was his employer for the Admiralty Station Project and HKZMB project. In fact, Mr. Poon explained that he continued to contribute MPF to the [Appellant] because he considered it to be a small amount and did not want to dispute it. I accept Mr. Poon's explanation in this regard.
(xvi) I also accept Mr. Poon's explanation that he issued the Whatsapp to “terminate” the [Appellant] at the [Appellant’s] request. The Whatsapp communication … does not say that it is a termination of employment, it just says that it would terminate the [Appellant] and it is made at the [Appellant's] request. As such, it can't be construed as an admission that there was an employment relationship.
(xvii) Finally, I have taken into account the [Appellant’s] submissions … that he does not have business registration certificate and do not have business of his own. I do not find the [Appellant’s] submissions to be credible as the evidence suggests that the [Appellant] did bear a certain amount of financial risk as reflected in the "Profit and Loss" calculations.”
17. The Deputy Presiding Officer concluded that the Appellant was not the 2nd Respondent’s employee for the entire period from 13 December 2014 to 17 August 2017, but was SG’s employee for the 1st period and a subcontractor for the 3rd period.
REVIEW
18. The Appellant subsequently applied for a review of the Deputy Presiding Officer’s decision on the following grounds:
(a) The SG contract was fabricated, with a forged signature and a wrong company chop (the chop was not that of SG but instead another entity Sino Gurkhas Security Services Ltd);
(b) the 2nd Respondent submitted different versions of the employment contract for the 2nd period;
(c) the 2nd Respondent made MPF contributions between May and August 2017 (straddling the 2nd and 3rd periods).
19. Dismissing the application for review, the Deputy Presiding Officer held that there was no evidence showing the falsity of the SG contract. The different versions of the employment contract for the 2nd period did not damage the 2nd Respondent’s case, as there was no dispute that the Appellant was employed by the 2nd Respondent for this period. In the light of the explanation that MPF contributions were made for convenience only, this should not be construed as an admission of any employment relationship for the 3rd period.
GROUNDS OF APPEAL
20. Mr Osmond Lam together with Mr Dexter Leung, appeared for the Appellant and advanced 6 grounds of appeal.
Ground 1: improper reliance on late evidence relating to the SG contract
21. The first ground advanced is based on Mr Lam’s complaint that the 2nd Respondent, having initially accepted that the Appellant was its employee for the 1st period, was allowed to change its stance to allege instead that he was employed by SG on the basis of evidence adduced at a late stage. Mr Lam submitted that the Deputy Presiding Officer had thereby erred in law by failing:
(a) to properly investigate the issues in accordance with section 20 of the Labour Tribunal Ordinance Cap.25;
(b) to give any or sufficient consideration of the prejudice to the Appellant in admitting the late materials;
(c) to give any or adequate consideration to relevant factors and evidence indicating that the Appellant was the 2nd Respondent’s employee.
Change of stance
22. The 2nd Respondent’s initial stance, it was submitted, can be seen in: (1) the fact that a copy of the 1st period contract was filed by the 2nd Respondent as part of its documentary evidence, which was the same as the copy produced and relied on by the Appellant; (2) the witness statements of Ms Lo Tsz Yan Eriko (“Ms Lo”) filed on behalf of the 2nd Respondent (though she was not called to give evidence)[3]; and (3) Mr Poon’s opening submission and his evidence on the 2nd day of the trial[4].
23. Contrary to its initial stance, on the 2nd day of the trial, the 2nd Respondent mentioned SG for the first time and put to the Appellant that he was in fact employed by SG for the 1st period. On the 3rd day of the trial, after an adjournment over the weekend, the 2nd Respondent tendered the late evidence in support of its changed stance.
Ground 1(a): failed to properly investigate the issues
24. Referring to Brook Street Bureau (UK) Ltd v Dacas [2004] ICR 1437 at [24] and Chan Suk Bing Angie v Harbour Phoenix Ltd [1992] 2 HKC 459, Mr Lam submitted that the Deputy Presiding Officer was under a duty to investigate all the relevant facts. An appellate court would consider whether that duty had been discharged, and would intervene if a lack of investigation gave rise to injustice, such that a fair and proper determination of the claim could not be attained. Mr Lam also referred to Ng Ming v Cheung Wah Investment Co Ltd (unreported, HCLA 10/2003, 13 June 2003) and submitted that if the Deputy Presiding Officer had discerned that there were relevant matters which the parties did not explored, he was obliged to look into it and, if necessary, direct them to produce further evidence or documents in the trial.
25. As the late evidence were contradictory to the 1st period contract and the 2nd Respondent’s initial stance, Mr Lam submitted that it was imperative for the Deputy Presiding Officer to investigate the authenticity of the SG job application and contract, by ordering the production of the originals of these documents under section 20 of the Labour Tribunal Ordinance Cap.25.
26. It was further submitted that, in the light of the Appellant’s specific challenges to the SG contract in the application for review, the Deputy Presiding Officer ought to re-open and re-hear the claim under section 31(1) of the Labour Tribunal Ordinance Cap.25.
27. Mr Lam submitted that the Deputy Presiding Officer, in admitting and relying on the late evidence, did not properly resolve the manifest discrepancy between the SG job application and contract on the one hand and the 2nd Respondent’s initial stance on the other.
Ground 1(b): prejudice to the Appellant
28. Mr Lam pointed out that, in allowing the late evidence, the Deputy Presiding Officer did not address the 2nd Respondent’s change of stance, and only allowed the Appellant an early lunch adjournment to consider the late evidence. Referring to Xu Dazhong v Nippon Kaiji Kyokai [2019] HKCFI 2588 at [14], it was submitted that the Deputy Presiding Officer failed to appreciate the change of stance in terms of the prejudice to the Appellant.
Ground 1(c): failed to consider relevant factors and evidence
29. Mr Lam relied on the Deputy Presiding Officer’s remarks in the course of the proceedings that he did not think issues of tax and MPF contributions were material factors. Referring to the 11 factors set out in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156, Mr Lam submitted that tax and MPF were relevant factors and that the Deputy Presiding Officer failed to have any or sufficient regard to them.
Ground 2: failed to properly assess the relationship between the parties in the 1st period
30. It was submitted that the Deputy Presiding Officers failed to consider whether the SG contract, even if it was genuine, reflected the reality of the relationship between the Appellant and the 2nd Respondent.
31. Mr Lam referred to section 2 of Employment Ordinance Cap.57 and the cases of Autoclenz Ltd v Belcher [2011] 4 All ER 745 (recently approved in Uber BV v Aslam [2021] UKSC 5) and Carmichael v National Power plc [1999] 1 WLR 2042. He submitted that, it is not sufficient for the Deputy Presiding Officer to find that the SG contract was made between the Appellant and the 2nd Respondent. The Deputy Presiding Officer had to consider whether there were circumstances and/or additional terms which were not contained in the written terms. For example, if in reality it was the 2nd Respondent who gave instructions to and paid the Appellant, this would then support a finding that he was the 2nd Respondent's employee rather than SG's employee.
32. It was submitted that the Deputy Presiding Officer did not undertake such an inquiry. Having found as a fact that the SG contract was made between the Appellant and Mr Gurung, he then accepted that the Appellant was SG’s employee for the 1st period. There was no consideration as to whether the SG contract fully captured the Appellant's true employment status and relationship during the 1st period.
Ground 3: improper basis in dismissing the appellant’s contention in respect of the 3rd period
33. Since the Deputy Presiding Officer took into account his prior finding that the Appellant's case on the 1st period was unreliable when making his finding on the 3rd period, Mr Lam submitted that, if the Appellant succeeds on Grounds 1 and/or 2, it would follow that the basis for his finding on the 3rd period was improper.
Ground 4: failed to have proper regard to relevant factors and evidence in respect of the 3rd period
34. As the pay slips and MPF statements adduced by the Appellant indicate that the 2nd Respondent was his employer for the 3rd period also, Mr Lam similarly submitted that the Deputy Presiding Officer gave insufficient consideration to the factors of tax and MPF contributions for the 3rd period.
35. Further, Mr Lam argued that, in referring to the claim by the Appellant’s fellow workers against the 2nd Respondent in LBTC 3394/2017, the Deputy Presiding Officer misunderstood the effect of the decision in that case. It was submitted that the decision in LBTC 3394/2017 was made on the basis that these workers were the 2nd Respondent’s employees, which was consistent with the Appellant’s case, but inconsistent with the 2nd Respondent’s contention that they were the employees of the Appellant as a sub-contractor.
Ground 5: failed to ascertain parties’ communication and essential contract terms between them in respect of the 3rd period
36. On the finding that there was a verbal agreement for the 3rd period, Mr Lam submitted that the Deputy Presiding Officer failed to undertake the process of objectively ascertaining the essential terms and conditions of the verbal agreement, before deciding if it was a contract of employment or for service. Mr Lam referred to the cases of Crawford v Department for Employment and Learning [2014] IRLR 626, Carmichael v National Power [1999] 1 WLR 2042, Law Chun Choi v Wong Yee Lin [2008] 5 HKLRD 328 and Xu Dazhong v Nippon Kaiji Kyokai [2019] HKCFI 2588 at [13].
37. In particular, the Deputy Presiding Officer failed to give adequate consideration to the MPF contributions in the 3rd period, giving undue weight to Mr Poon's subjective explanation. The Deputy Presiding Officer also gave undue weight to the evidence that Mr Poon terminated the Appellant at the Appellant’s request, when no termination notice had been given at the end of the 2nd period, pointing objectively to continuity of the employment relationship from the 2nd period to the 3rd period.
38. Mr Lam further submitted that, in failing to identify the essential terms of the contract for the 3rd period, the Deputy Presiding Officer did not properly assess the true nature of the relationship between the Appellant and the 2nd Respondent, according to the factors set out in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156. For instance, there was no examination of the degree of control that the 2nd Respondent exercised over the Appellant, whether it had the ability to instruct and give orders to the Appellant which he was bound to follow, or whether the Appellant was in fact part of the 2nd Respondent's organisational and work structure for the HKZMB project.
Ground 6: Appellant lacked opportunity to properly present his case and to respond to 2nd Respondent’s contentions
39. Mr Lam contended that the Appellant did not have a proper opportunity to prepare his case or to meet the 2nd Respondent's case. He pointed out that the 2nd Respondent provided English translations of its witness statements to the Appellant only on the 3rd day of the trial[5].
40. Mr Lam also submitted that the Appellant was not aware that he could submit written closing submissions. In contrast, the 2nd Respondent presented written closing submissions which were accepted by the Deputy Presiding Officer. In the interest of equality and fairness, the Deputy Presiding Officer should have informed the parties that they could file written closing submissions and/or invited them to do so.
41. It was submitted that these matters were prejudicial to the Appellant such that he was denied a fair trial.
2nd RESPONDENT’S SUBMISSIONS
42. As the 1st Respondent mainly adopted the 2nd Respondent’s stance on appeal, it is convenient to first deal with the submissions of Mr Christopher Law for the 2nd Respondent.
43. Referring to section 32 of the Labour Tribunal Ordinance Cap.25 and Dissanayake v Overwell Industrial Ltd (unreported, HCLA 68 of 2004, 3 November 2004), Mr Law submitted that an appeal can only be lodged on points of law. Challenges as to the findings of credibility and facts are not within the permissible scope of appeals.
44. Relying on Sae-Lee Srikanya v Chung Yat Ming [2009] 3 HKLRD 152 at [12] and [13], and Monti v Shailesh (unreported, HCLA 65 of 2004, 28 January 2005), it was submitted that a finding as to whether a person is an employee or an independent worker is a finding of fact; and that preference of one witness over another by itself does not come within the ambit of an error of law.
45. Referring to Pan Wen Tsai v Wing Luen Universal Laundry Limited (unreported, HCLA 46/1997, 6 August 1998 at [10]), it was submitted that, since there are always some indicia pointing to contractor status or vice versa, the appellate court should not easily interfere with findings on the basis of lack of evidence in support of the original decision. If the trial court had evaluated the evidence correctly and thoroughly, then the appellate court should not impose its own judgment even if it would reach a different conclusion on the evidence.
Ground 1: improper reliance on late evidence relating to the SG contract
46. Mr Law supported the Deputy Presiding Officer’s assessment that the 1st period contract produced by the Appellant was problematic. It was copied and included by the 2nd Respondent as an exhibit. Mr Law contended that the 2nd Respondent's stance had always been that the SG was the Appellant's employer for the Admiralty Station project. The production of the SG contract did not mean a sudden change of stance.
47. It was further submitted that, although the 2nd Respondent admitted that a contract was signed with the appellant, it was done for MPF payment documentation purposes, not for the purpose of employing the Appellant.
48. Mr Law pointed out that, as Mr Poon had testified, Ms Lo did not have the most accurate knowledge of the relevant circumstances despite her witness statements, and it was Mr Poon himself who knew about the Appellant's status. As for the SG contract which the Appellant contended was fabricated, the mere fact that it contradicted other evidence was insufficient to make out the Appellant's claim of forgery. It was further contended that, despite having had ample opportunity prior to the conclusion of the trial, the Appellant only raised the falsity of the SG contract in the review application and still failed to provide positive evidence.
49. The Deputy Presiding Officer’s admission of and reliance on the evidence relating to the SG contract, Mr Law submitted, was made after properly assessing all relevant circumstances and there was no basis for any appeal in law.
Ground 2: failed to properly assess the relationship between the parties in the 1st period
50. Mr Law submitted that the Deputy Presiding Officer had properly assessed the parties’ relationship in the 1st period by considering all relevant circumstances. He did not make his finding solely on the SG contract.
Ground 3: improper basis in dismissing the appellant’s contention in respect of the 3rd period
51. It was submitted that the Deputy Presiding Officer adopted a holistic approach in assessing the Appellant's status at different times. His conclusion was a finding of fact which should not be reversed by an appellate court, particularly since he had enjoyed the advantage of seeing and hearing the witnesses first hand.
Ground 4: failed to have proper regard to relevant factors and evidence in respect of the 3rd period
52. It was submitted that the Deputy Presiding Officer had taken into account tax and MPF matters, and had accepted Mr Poon’s explanation that MPF payment was for convenience only. He was entitled to conclude that these matters should not be construed as an admission of an employment relationship.
53. As for the proceedings in LBTC 3394/2017, Mr Law pointed out that the award in LBTC 3394/2017 was entered by consent, so there was no conclusive finding of fact.
Ground 5: failed to ascertain parties’ communication and essential contract terms between them in respect of the 3rd period
54. It was submitted that the Deputy Presiding Officer had properly and objectively assessed all the circumstances and features of the case, in particular, WhatsApp communication showing that the Appellant was running his own business, which was inconsistent with being an employee.
Ground 6: Appellant lacked opportunity to properly present his case and to respond to 2nd Respondent’s contentions
55. Mr Law pointed out that it was the Deputy Presiding Officer’s initiative to arrange and confirm the provision of translation to the Appellant. The Appellant never complained of any unfairness during the trial. It was also submitted that the Appellant had been given reasonable opportunity to peruse documents and to cross-examine witnesses.
1st RESPONDENT’S SUBMISSIONS
56. Mr Andy Lam for the 1st Respondent adopted the 2nd Respondent’s stance on appeal. In addition, he makes the following submissions:
(a) Ms Lo was not called as a witness and it was appropriate to give no weight to her statements.
(b) It was within the Deputy Presiding Officer’s case management power to allow supplemental and additional evidence. An appeal on case management issues is not an appeal on a point of law. In any event, in exercising his case management power, the Deputy Presiding Officer had properly considered all the circumstances.
(c) On the substantive issue, the Deputy Presiding Officer had evaluated all relevant factors and evidence, rejecting the Appellant’s evidence with clear and detailed reasons. The Appellant’s grounds of appeal were only attempts to reverse the findings of fact properly reached.
(d) There is no basis to suggest that the Appellant was not given a fair trial. Moreover, the Appellant was able to put forward his arguments in the application for review.
DISCUSSION
57. In my judgment, this appeal shall be allowed based on Ground 1 alone.
58. As submitted by Mr Lam, there were important issues in this case that the Deputy Presiding Officer ought to investigate but he failed to do so.
59. It is significant that the initial position of the 2nd Respondent was that the Appellant was indeed its employee in the 1st Period. On this point the 2nd Respondent had gone so far as to adduce a witness statement to verify this and exhibit the same written agreement relied on by the Appellant. Even in his opening speech, Mr Poon still maintained this position and there was no suggestion that the written agreement relied on by the Appellant was a fabricated document. The 2nd Respondent’s stance was changed, to the extent that the Appellant was in fact employed by SG and the written agreement was fabricated, only on the 2nd day of the trial during cross-examination of the Appellant by Mr Poon. The alleged written contract of the Appellant with SG was produced as late as on the 3rd day of the trial.
60. Whether the Appellant was an employee of the 2nd Respondent in the 1st period was a core issue of the trial. Presumably, the 2nd Respondent would have gone through a thorough investigation of its relationship with the Appellant when faced with a claim from him. The fact that the 2nd Respondent changed its stance at eleventh hour and only produced a crucial document cried out for an explanation. It would be of crucial importance for the Deputy Presiding Officer to find out the reason behind before he could comfortably make a finding on this very issue. He could have explored the possibility of calling Ms Lo to give evidence or at least demanded an explanation from Mr Poon.
61. With respect, the Deputy Presiding Officer had paid too little attention to the above matters. Not only did he choose not to proceed with a thorough investigation, he even did not explain in sufficient details the reason why he did not find the inconsistencies of the 2nd Respondent’s stance much of his concern. In giving full reliance on the late produced documents from SG, he did not give consideration at all that they were produced at the last minute without a reason.
62. Besides, I agree with Mr Lam that it was unfair to the Appellant to give him only a lunch adjournment for consideration of the important documents produced at such a late stage.
63. In the circumstances, I am of the view that the Deputy Presiding Officer erred in law in failing to investigate on a crucial issue and the matter shall be remitted back to the Labour Tribunal for retrial.
64. As the factual findings on the employment relationships between the parties in different periods hinged on documentary evidence and also credibility of the parties, all findings of the Deputy Presiding Officer shall be reopened at the retrial.
DISPOSITION
65. The appeal is allowed and the matter be remitted back to the Labour Tribunal for retrial.
66. Costs of the Appellant in this appeal be borne by the 1st and 2nd Respondent to be taxed if not agreed.
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(S T Poon) |
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Judge of the Court of First Instance
High Court |
Mr LAM, Osmond and Mr LEUNG, Dexter J.F.C. instructed by C.W. Heung & Partners, for the Appellant
Mr LAM, Andy Y.H. instructed by Winnie Leung & Co., for the 1st Respondent
Mr LAW, Hong Ming Christopher instructed by Lim & Lok, for the 2nd Respondent
[1] Hearing dates were 29 & 30 November and 3 & 4 December 2018 (with an adjournment over the weekend on 1 & 2 December 2018)
[2] The claims for statutory holiday pay and severance pay had in fact been adjourned in the course of the proceedings pending the outcome of the appeal cases in HCLA Nos. 37, 38, 39, 40 & 45 of 2017, and the ruling on these items would follow the Deputy Presiding Officer’s findings subject to those appeal proceedings
[3] Ms Lo stated that the Appellant was the 2nd Respondent’s employee for the 1st period, she was not eventually called to give evidence as she no longer worked for the 2nd Respondent
[4] Mr Poon stated that the Appellant was an employee for the 1st and 2nd periods in his opening submission for the 2nd Respondent; and under cross-examination by the Appellant on the 2nd day of the trial, Mr Poon accepted that there was an employment contract for the Appellant for the Admiralty project (the 1st period).
[5] Translation of Ms Lo's witness statements dated 17 and 21 November 2017 and Mr Ngai Chun Kit Alex's witness statement dated 8 June 2018
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