CHUNG TIN SHUN CAESAR v. THE HONG KONG FOOTBALL ACADEMY LTD

HCLA 26/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO HCLA 26 OF 2016

(On appeal from Labour Tribunal Claim No LBTC 16 of 2016)

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D E C I S I O N

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1.  This is an application for leave to appeal against the award of the Labour Tribunal as regards wages in lieu of notice.

2.  The Presiding Officer found that the applicant was employed by the defendant under a valid and binding written agreement.  The defendant dismissed the applicant with immediate effect. 

3.  The agreement provided that should either party wish to terminate the employment, they would be obliged to give 12 months’ notice.  There was no provision for payment of wages in lieu of notice.

4.  The Presiding Officer held that the applicant was not entitled to 12 months’ wages as compensation but that he should be given damages to be assessed for putting him into a position as if the agreement had not been breached.  He made inquiry as to whether the applicant had mitigated his loss.  He held the view that the applicant would have been able to resume work in a month’s time after termination and he would have been able to secure a job in the subsequent 11 months with an average monthly income of $15,000 (based on what he had earned in a health management company).  He assessed damages as the difference between 12 months’ salary under the agreement and 11 months’ salary at $15,000.

5.  The applicant was dissatisfied with the award and seeks leave to appeal.  He has to show that the Presiding Officer had erred in law under section 32 of the Labour Tribunal Ordinance, Cap 25.

6.  Subject to a number of controls (such as not being a penalty clause), the parties to a contract may themselves specify in their contract the remedy available to the innocent party following the other's breach. In the absence of any such “tailor-made” clause on the remedy, the law on damages fills the gap with "default" provisions on the assessment of money compensation which apply to all types of contract. The claimant is, as far as money can do it and subject to the limitations, to be placed in the same position as if the contract had been performed. See Chitty on Contracts, General Principles, Volume 1, 32^nd ed, §26-001.

7.  In my view, the Presiding Officer correctly identified the claim as one for assessment of damages for breach of employment agreement. His conclusion was reached upon proper application of legal principles set out in Chitty.  No error in law has been shown. 

8.  The applicant complained that the Presiding Officer asked him a lot of questions on the day he was supposed to deliver his decision, when the applicant was not prepared for it.  What happened was that the Presiding Officer was investigating if the applicant had mitigated his loss, in proper discharge of the Presiding Officer’s duty of making inquiries. The Presiding Officer had used the applicant’s own evidence in arriving at the award.  Again, no error of law was committed.

9.  The intended appeal had no merits.  The application is dismissed.