TSANG WAI BONG v. LANGHAM HOTELS (LPHK) LTD

HCME 3/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD

APPEAL NO 3 OF 2015

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS
ADJUDICATION BOARD APPEAL NO MB 0413 OF 2015(C))

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D E C I S I O N

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INTRODUCTION

1.  This is the claimant’s application for leave to appeal, pursuant to section 31 of the Minor Employment Claims Adjudication Board Ordinance, Cap 453 (“the Ordinance”) against the Board’s refusal to provide “a formal written order” made by an Adjudication Officer (Wong Kwok Kui) on 4 August 2015 to transfer the claimant’s claim against the defendant to the Labour Tribunal pursuant to section 8 of the Ordinance.

2.  As is apparent from the claimant’s Application for Leave to Appeal on Point of Law dated 4 September 2015, his complaint is in fact not about the absence of any formal written order.  There is no dispute that a formal written order of the Adjudication Officer was served on the claimant by post on 4 August 2015.  It is also clear that the Adjudication Officer orally explained to the claimant his reasons for the order at the hearing on 4 August 2015.  The claimant’s real complaint is that the Adjudication Officer failed to provide written reasons for the order within 14 days of the date of the order.

3.  The question arising in the present leave application is therefore whether the Adjudication Officer was under any legal duty to provide written reasons for his order in this case.

BACKGROUND FACTS

4.  On 9 June 2015, the claimant (Mr Tsang Wai-bong) commenced proceedings under Ordinance against his former employer, Langham Hotels (LPHK) Limited, claiming, inter alia (i) outstanding employer’s contribution to the Mandatory Provident Fund in the amount of HK$1,515, (ii) salary for 25 and 26 October 2014 in the amount of HK$900, (iii) payment in lieu of notice of termination of employment in the amount HK$1,414, and (iv) loss of salary in the amount of HK$1,000.

5.  The defendant disputes the claimant’s claim on grounds which are not relevant for the purpose of the present application for leave to appeal.

6.  The claimant’s claim came before the Adjudication Officer on 26 June 2015 and 4 August 2015 respectively.  Having heard the claimant and the defendant, the Adjudication Officer decided to decline jurisdiction and transfer the claim to the Labour Tribunal on the ground that complex legal questions were involved in the claim.

7.  As can be seen from the Notes of Proceedings signed by the Adjudication Officer dated 12 October 2015, the legal questions arising from the claim which the Adjudication Officer considered would justify transferring it to the Labour Tribunal included:-

(1) whether claims for MPF contribution fell within the  jurisdiction of the Board;

(2) whether the concept of “dismissal” was relevant to the claimant’s situation, he having been employed as a casual relief worker with each service call lasting for 7 days only without any commitment that his service would be required on any day;

(3) if the answer to (2) is yes, what would be a “reasonable notice” for terminating the claimant’s employment.

8.  The formal order of the Adjudication Officer dated 4 August 2015 stated that in view of the fact that the claim raised complex legal questions, the claim was transferred to the Labour Tribunal pursuant to Section 8 of the Ordinance.  A copy of the formal order was served on the claimant by ordinary post on 4 August 2015.

9.  On 13 August 2015, the claimant sent a fax to the Board seeking a “proper written order for [his] case”.  It is clear from the contents of that fax that the claimant was asking the Adjudication Officer to provide reasons in writing for the order.

10.  The Board replied by letter dated 20 August 2015.  In that letter, the Board stated that sections 21(2) and 21(3) of the Ordinance stipulate that the reasons for an award or order may be given orally or in writing as the adjudication officer may think fit, and that after he has made an award or order orally, he has to reduce it to writing as soon as possible.  The letter went on to state as follows:-

“At the 2^nd hearing on 4 August 2015, of which you were present as the claimant, the adjudication officer, after hearing further submission by both parties, decided to decline jurisdiction of the claim case and transfer it to the Labour Tribunal. He had delivered his decision and the reasons for his decision orally in the presence of both parties to the claim, and a written award or order stating the decision was issued on that same day.”

11.  In the end, the Board refused the claimant’s request for written reasons for the Adjudication Officer’s order.

12.  On 4 September 2015, the claimant made the present application seeking leave to appeal against the Board’s refusal to provide written reasons for the Adjudication Officer’s order.

STATUTORY FRAMEWOK

13.  By section 8(1) of the Ordinance, the Board may, at any stage of the proceedings, either of its own motion or upon the application of any party, decline jurisdiction if it is of the opinion that for any reason the claim should not be inquired into, heard and determined by it.

14.  Section 8(3) of the Ordinance goes on to provide that the Board shall, when it declines jurisdiction under (inter alia) subsection (1), transfer the claim to the Labour Tribunal.

15.  Section 21 of the Ordinance, so far as material, states as follows:-

“(1) The adjudication officer shall deliver his determination of a claim and make such award or order thereon as he may think fit as soon as possible after the conclusion of the hearing of the claim.

(2) The reasons for an award or order may be given orally or in writing as the adjudication officer may think fit.

(3) An adjudication officer shall, when he has made an award or order orally, reduce it to writing as soon as possible, and in any case not later than 14 days after the date of the award or order.

(4)   Every written award or order shall be served by the registrar on the parties.”

DISCUSSION

16.  Section 21 of the Ordinance draws a clear distinction, as regards the formal requirement, between an “award or order” and the “reasons” for an award or order.  In relation to an award or order, although an adjudication officer may give it orally, he is under a duty to reduce it to writing as soon as possible, and in any case not later than 14 days after the date of the award or order, under section 21(3).  On the other hand, in relation to the “reasons” for an award or order, the adjudication officer may give them orally or in writing as he may think fit under section 21(2).  There is no requirement that he must also reduce the reasons to writing and served the written reasons on the parties.

17.  In the present case, the Adjudication Officer gave reasons for his order orally at the hearing on 4 August 2015, as stated in the Board’s letter dated 20 August 2015 to the claimant.

18.  In the Notes of Proceedings signed by the Adjudication Officer, it is also stated, at paragraph 24 thereof, that –

“The reasons for the award were explained orally in the presence of both parties and the written award was issued on the same day of hearing.”

19.  At the hearing of the leave application on 29 February 2016, the claimant confirmed to the court that the Notes of Proceedings fairly represented what transpired at the hearings before the Adjudication Officer.

20.  In my view, the Adjudication Officer was not under any legal duty to provide written reasons for his order.  Also, there is no unfairness to the claimant, because the reasons were explained orally to him at the hearing by the Adjudication Officer and there is no suggestion that the claimant could not comprehend those reasons.  I should also add that the Adjudication Officer was, in my view, entitled to decline jurisdiction and transfer the claim to the Labour Tribunal. The claimant can, of course, still pursue his claim against the defendant in the Labour Tribunal.

21.  In his Application for Leave to Appeal on Point of Law, the claimant referred to, inter alia, (i) Article 25 of the Basic Law (equality before the law), (ii) Article 39 of the Basic Law (application of the ICCPR and ICESCR), (iii) Article 14(1) of the ICCPR (fair and public hearing by a competent, independent and impartial tribunal, and the general duty to make public of judgment save in specified circumstances), and (iv) Article 10 of the Bill of Rights (corresponding to Article 14(1) of the ICCPR) in support of his proposed appeal.  I am unable to see how any of these provisions, either singly or in combination, would impose on the Adjudication Officer a duty to provide written reasons for his order, or invalidate section 21 of the Ordinance.  In this regard, I observe that Section 15 of the Ordinance provides that the hearing of a claim before the Board shall be conducted in public unless the Board considers that in the interests of justice the hearing or any part of it should be in private.

DISPOSITION

In all, I consider that the Adjudication Officer was justified to refuse to provide written reasons of his order dated 4 August 2015 as sought by the claimant.  No arguable point of law has been raised against the refusal which would justify leave to appeal being granted.  Accordingly, the claimant’s application for leave to appeal is dismissed.