DISSANAYAKE CHANDRIN JAYADEV v. OVERWELL INDUSTRIAL LTD

HCLA68/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO.68 OF 2004

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D E C I S I O N

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1. This is the claimant’s application for leave to appeal against the decision of the Presiding Officer made on 5 May 2004 dismissing his claim.

Background

2. The claimant is a Sri Lanka national.  By a Letter of Employment dated 16 May 2002, the claimant was appointed by the defendant as its overseas sales manager at a monthly salary of $20,000, which was inclusive of $5,000 housing allowance.  The claimant was also given 12 days’ annual leave. 

3. On 11 December 2003, the claimant commenced proceedings in the Labour Tribunal claiming against the defendant (1) arrears of wages from September 2002 to September 2003 in the sum of $179,720.20, (2) two months’ wages in lieu of notice in the sum of $40,000, and (3) annual leave payment in the sum of $7934.20. 

The parties’ case before the labour tribunal

4. The claimant’s case is that he started working for the defendant in September 2002.  He went on a business trip to Sri Lanka in March 2003 and returned to Hong Kong on 5 April 2003.  On his return, he discovered that the defendant had decided not to do business in Sri Lanka, and the defendant had sent him an e-mail on this on 4 April 2003.  He was also told by Miss Ma, a director of the defendant, to work from home as there was no working space for him in the defendant’s office, and that she would look after his expenses.  However, when he later on applied for a renewal of his visa, he came to realize that the defendant had informed the Immigration Department that his employment had been terminated.  It is also the claimant’s case that he had only received $42,000 from the defendant since the commencement of employment in September 2002.

5. The defendant’s case is that the claimant commenced work in October 2002.  At the claimant’s request, he was allowed to work from 9 am to 1 pm, in consequence of which it was agreed that his salary be revised to $10,000 plus $5,000 housing allowance.  It was also agreed that the claimant would receive no pay for taking additional leave.  The claimant was not punctual and did not attend work everyday.  On average, he only worked three days a week. 

6. As the market in Sri Lanka was not good, it was subsequently agreed between the claimant and the defendant acting through Mr Ma, another of its director, that commencing January 2003, the defendant would work on flexible hours, and be paid a commission together with a basic monthly salary of $2,000 and with no housing allowance. 

7. After the trip to Sri Lanka undertaken by the claimant together with Mr Ma’s father and another staff, the defendant decided not to promote the company’s business in Sri Lanka.  On 4 April 2003, Miss Ma sent an e-mail to the claimant informing him about the decision, and telling him to remain in Sri Lanka to find a job or some business.  In the email, Miss Ma further told the claimant that there would be no job for him if he were to return to Hong Kong.  The claimant did not return to work at the defendant thereafter.  The claimant had only gone to the defendant to ask Miss Ma for loans. 

8. On 30 June 2003, the claimant telephoned and Mr Ma spoke to him, telling him that the contract was terminated.  This was followed by a letter giving two months’ notice to terminate the claimant’s employment effective on 31 August 2003.  Later the claimant requested Miss Ma to renew his employment in order that he could extend his visa and find a job in the meantime, but was refused.  On 1 September 2003, the defendant wrote and informed the Immigration Department that the claimant’s employment had been discontinued. 

9. It is also the defendant’s case that the claimant had been paid his salary in full.  The defendant had produced cheques vouchers and receipts showing that the defendant had received salaries for October to December 2002 at $15,000 each month, and for January to March 2003 at $2,000 each month, totalling $51,000.  For the salaries of January and February 2003, they were set-off from loans made to the claimant.  The defendant had also produced cheques, vouchers and receipts to show that sums totalling $3,707 (exclusive of the set-off for January and February 2003 salaries) had been paid to the claimant by way of loans advancements or pre-payments.  

The findings and decision of the Presiding Officer

10. The Presiding Officer considers that the case turns on the credibility of the witnesses.  On a balance of probabilities, he accepts the evidence and account given by the defendant.  He finds the account and evidence given by the claimant hard to believe.  Specifically, the Presiding Officer finds it odd that the claimant would have taken no step to claim for arrears of salaries if indeed he had only received $42,000 throughout one year of employment.  He also considers it incredible that Miss Ma would have asked the claimant to work from home without any supervision if indeed the claimant remained employed at a monthly salary of $20,000.  The Presiding Officer also refers to the e-mail of 4 April 2003 and considers that there is no reason why Miss Ma would change her mind and ask the claimant to work for the defendant from home when she had already told him not to return to Hong Kong.

11. The Presiding Officer finds as a fact the following :

(1)     The claimant’s monthly salary was varied to $15,000, inclusive of housing allowance, for October to December 2002, and was further varied to $2,000 plus commission as from January 2003. 

(2)     The defendant had paid the claimant his salaries in full for the months of October 2002 to March 2003.

(3)     The claimant ceased working for the defendant as from April 2003.

(4)     On 30 June 2003, the defendant terminated the employment.

(5)     The claimant accepted the termination and also waived his right to notice or payment in lieu of notice.

(6)     The claimant had worked on average three days a week from October to December 2002, and had thereby already enjoyed more than his annual leave entitlement.

12. The Presiding Officer dismissed all the claims of the claimant and made no order as to costs.

The grounds of appeal

13. The claimant applied for leave to appeal out of time, which was granted by the Registrar, High Court on 29 May 2004.

14. From the Notice of Application for Leave to Appeal and the written statement handed up at the hearing, it appears that the claimant’s intended grounds of appeal can be summarized as follows :

(1)     The Presiding Officer failed to give consideration to the fact that the variations of the employment terms as alleged by the defendant were agreed orally.

(2)     The Presiding Officer failed to consider whether the quality of evidence was sufficient to show a variation(s) of the contract when there was initially a written contract between the parties and when the claimant disputes that there had been variations by agreement.

(3)     The Presiding Officer failed to investigate the veracity of the defendant’s claim of variations of employment terms by checking against independent evidence, such as Mandatory Provident Fund contributions by the defendant.

(4)     The Presiding Officer’s treatment of the evidence was uneven.

Reasons for decision

15. Under section 32(1) of the Labour Tribunal Ordinance, 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.

16. Of the four intended grounds of appeal summarized above, the first, second and fourth grounds can be taken together.  In substance, the claimant says that the Presiding Officer should have cast doubts on the defendant’s allegations that there had been repeated variations when none of these was evidenced in writing.  The claimant also complains that the Presiding Officer should not have disbelieved his evidence that he had been asked to work from home by Miss Ma when it was also the defendant’s evidence that the claimant changed to be an agent on commission.

17. Although the claimant says these are errors of law, the arguments raised relate in substance to matters of findings of facts and credibility of witnesses.  Quite apart from the fact that they are outside the scope of appeal permitted by the statute, they are matters that the Presiding Officer is in the best position to decide, having had the opportunity to hear the witnesses and see all the relevant evidence.  Only in exceptional case will the appellate court intervenes to overturn findings of credibility and of facts.  In the present case, there is, apart from the oral testimony, documentary evidence showing payments made to the claimant, which tends to support the defendant’s case of an agreed reduction in salary and variation of employment terms.

18. It would also appear that the claimant had misunderstood the point that the Presiding Officer was making when he said he found the claimant’s version that he was asked to work from home unconvincing.  The Presiding Officer was saying that on the claimant’s account, he remained employed at $20,000 a month.  If so, it would be unconvincing that he would be allowed to work from home without supervision.

19. The claimant’s second main ground is a complaint that the Presiding Officer had failed to conduct investigation.  Section 20(3) of the Labour Tribunal Ordinance provides that “the presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party”.  There is no doubt that a failure to discharge the duty may amount to an error of law.

20. The duty to investigate is however not absolute.  Not every failure to investigate a relevant matter gives rise to a valid ground of appeal.  The failure must be of such a nature that the lack of investigation gives rise to injustice in that a fair and proper determination cannot be sustained : Chan Suk Bing Angie v. Harbour Phoenix [1992] 2HKC 459 at 462H-I.

21. In the present case, the claimant had only referred to the employer’s contribution for MPF as an instance of the failure of duty.  There is a provision in the Letter of Employment that the claimant was to be covered by the MPF Scheme and that he and the defendant were each to contribute 5% of the monthly basic salary.  However, it does not appear from the exhibits and the Labour Tribunal file before this court that the issue of MPF contributions had ever been raised at the Tribunal.  While the claimant considers that the Presiding Officer should have looked into this, it is equally open to the claimant to adduce information to show the extent of MPF contributions by both parties.  He will be able to access such information since he is a contributor as well as the recipient of the benefits under the Scheme.  There is also documentary evidence, including receipts signed by the claimant, that tends to support the defendant’s version of the levels of monthly salaries that had been paid to and accepted by the claimant.  In the circumstances, even if the issue of MPF contributions should have been looked into, the failure to do so is neither unjust nor does it make the decision unsustainable.

Conclusion

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