AMIE M CAMACHO AND ANOTEHR v. CHUNG YEE FONG HELEN

-----------------

JUDGMENT

-----------------

Nazareth V-P:

1. This is an appeal against the decision of His Honour Judge Chung in the District Court in which he allowed the remaining claims of two claimants against the appellant who was their former employer.

2. The matter began with a claim before the Labour Tribunal in which the two claimants who are the 1st and 2nd respondents before us for several items. The 1st claimant claimed 7 items totalling some $14,165. These were for 1 month wages, arrears of wages, statutory paid holidays (pay presumably), travel allowance, statutory annual leave, air-tickets, processing fees.

3. The 2nd claimant claims for some 8 items of a similar nature, totalling $8,565.70. The matter came before the presiding officer and in the course of the proceeding before him, he recorded the appellant as saying that she would pay items 4 and 5 which the 1st claimant, and items 4, 5 and 6 which the 2nd claimant claimed. He then made an order for payment of these, items 7 claimed by the 1st claimant was abandoned and all the remaining claims the presiding officer then transferred to the District Court. There the matter was contested and on the facts the District Court judge found against the appellant. No issue is taken with the findings of fact. In fact, these are left well alone and only a point of construction is taken before this Court. This is contained in the only ground of appeal which is put thus:

4. As foreshadowed in that single ground of appeal, the appeal turned largely on the provisions of s. 10 of the Labour Tribunal Ordinance which is in the following terms:

5. Mr Johnny Mok who appears for the appellant before us, takes as his major point the meaning of "claim" which is defined in s. 2 of the Ordinance in these terms:

"'claim' means a proceeding before the tribunal between a claimant and a defendant"

That definition is preceded by the opening words of s.2:

"In this Ordinance, unless the context otherwise requires -"

6. His submission which he advanced in some detail and fully, can be summarised in this way. That definition and the way that references to claim are made in the Ordinance, and there a very large number of such references, all point to a meaning in the singular. Therefore, he submits that what the presiding officer in the Labour Tribunal had before him was one single claim by the two claimants, consisting perhaps of several individual items, but in the end one single claim. The presiding officer could not sever a claim on any account. He either had to decline jurisdiction (and transfer the claim) or to hear and determine it.

7. Mr Mok mentioned that notwithstanding that the appellant in fact stated to the presiding officer that she would pay the five items mentioned, the presiding officer, having come to the conclusion that it was right and proper to remit the matter to a District Court, should have referred the whole lot to the District Court. By the order for payment of the five items, the presiding officer has in fact not declined but had exercised jurisdiction. In short, a hearing took place and there was a determination.

8. The facts, which I have already touched upon, were that the parties appeared: they were interviewed by a conciliation officer prior to the hearing before the presiding officer. That was in the context of proceedings that, unusually for Hong Kong are somewhat inquisitorial in nature in the Labour Tribunal and not adversarial as in the courts. He enquired about the facts and gave them time to settle the matter. The indication was that unless some document was produced, the appellant employer would not agree; the document was produced. She then made her statement that "I will pay items 4 and 5 to the 1st claimant and items 4, 5 and 6 to the 2nd claimant". Upon that the presiding officer made his order.

9. Before all that is looked at in a proper and logical way, it should be added that there was at that stage no dispute as to the amounts of those five items. Clearly there was no hearing in the proper sense of that term, nor any determination. So that what the presiding officer did, was refer all that was claimed before him to the District Court. By that time those five items were no longer claimed.

10. If one has regard to the earlier part of Mr Mok's submission, then one might be able, if that were necessary, to refer to s. 7 of the Interpretation and General Clauses Ordinance, Cap. 1 which says this:

In that sense "claim" includes claims and so the presiding officer would have been entitled to deal with the claims in the plural before him and to transfer some of the claims to the District Court. I do not find it necessary to rely upon that. The nature of what transpired suffices to persuade me that there was a claim which remained only as to the items that the employer had not said she would pay. Those items were all sent to the District Court as the claim. In that sense, the presiding officer was properly exercising the power he had under s. 10 of the Labour Tribunal Ordinance.

11. It follows, therefore, in my view, that there is no merit whatsoever in the legal point of construction taken by the appellant. Of course, as I have said, no point whatsoever is taken upon the facts. I would dismiss the appeal without further ado.

Bokhary JA:

12. Subsections (1) and (2) of section 10 of the Labour Tribunal Ordinance, Cap. 25, empower the Labour Tribunal to decline jurisdiction and order a transfer to the High Court or the District Court.

13. In the present case, some of the items claimed were not in dispute. The defendant (now the appellant) told the tribunal that she would pay them. So the tribunal entered judgment on those undisputed items, and then transferred the remainder of the claim to the District Court.

14. Mr Mok for the appellant contends that the tribunal had no power to do that. Why not? Because, he argues, the tribunal had not declined jurisdiction since it entered judgment on the undisputed items.

15. The argument was advanced with considerable skill; but I am unable to accept it.

16. Section 10(1) provides that:

"The tribunal may, at any stage of the proceedings, if it is of the opinion that for any reason the claim should not be heard and determined by it, decline jurisdiction"

17. And section 10(2) provides that:

"The tribunal may, when it declines jurisdiction under subsection (1), transfer the claim to the High Court or the District Court, in such manner as may be prescribed."

18. As one sees, what triggers the tribunal's power to decline jurisdiction and transfer a claim is its opinion that the claim should be "heard and determined" by a court rather than by itself.

19. There is simply nothing to hear and determine about a claim except to the extent that it is in dispute. A claim is only susceptible of hearing determination insofar as it is in dispute.

20. Where, as here, the tribunal declines to hear and determine any part of a claim susceptible of hearing and determination, it declines jurisdiction within the meaning of section 10.

21. Linguistic considerations dictate that interpretation of the section.

22. So does the policy of the statute of which the section is a part. And the section should of course be interpreted purposively to further that policy.

23. Such policy emerges very clearly from a fair reading of the Labour Tribunal Ordinance as a whole.

24. Doing that one sees this. The Labour Tribunal was set up to provide a particularly speedy and inexpensive forum for disposing of labour disputes. Conciliation is made an objective. Failing that, hearings before the tribunal are conducted in an informal manner. There is a strong inquisitorial element in how the tribunal goes about its business. Legal representation is not allowed. And the rules of evidence do not apply.

25. That is all to the good in the case of most labour disputes. So much so that it is provided in effect that unless more than twelve months have elapsed since the cause of action arose, you cannot commence court proceedings in respect of such a dispute. You are left to go to the tribunal.

26. It is recognized, however, that there will be exceptional cases which the tribunal will consider should be heard and determined by a court rather than by itself. And that is where the tribunal's power to order a transfer comes in.

27. The imperative is for the tribunal to get on with the matter save insofar as it sees for itself, in its own wisdom, that there is, very exceptionally, some strong practical reason why it ought not to do so in a particular case.

28. There is no reason whatsoever why the tribunal cannot get on with entering judgment on undisputed items even though what calls for hearing and determination is going to be dealt in a court.

29. I, too, would dismiss this appeal.

Gall J:

30. I agree and have nothing to add.