CHOW PUI SZE PRISCILLA v. THE FIRST TELEPHONE MOTEL CO LTD

HCME 2/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD APPEAL NO. 4 OF 2014

(ON APPEAL FROM MB 1374 OF 2013(C))

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D E C I S I O N

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1.  The claimant succeeded in her claim against her former employer, the defendant, and obtained an award in the sum of HK$4,318.80 from the Minor Employment Claims Adjudication Board (“the Board”) on 9 January 2014. This is the defendant’s application for leave to appeal against the award.

BACKGROUND

2.  The claimant started working for the defendant on 5 November 2013 as a project manager.  It was agreed, among other things, that she would be paid HK$12,000 per month.  The working relationship was terminated with effect on 19 November 2013.  The claimant therefore claimed for the balance of the salary payable for the period of work in the sum of HK$4,300 plus outstanding reimbursement of travelling expenses incurred during and for work purpose in the sum of HK$18.80.  Hence the total sum of HK$4,318.80.

3.  The defendant filed its defence denying that there was any employment relationship between the parties; and contended that the Labour Tribunal or the Board had no jurisdiction over the dispute.

4.  Besides, the defendant put forward a counterclaim.  It claimed that the claimant has left behind a lunchbox at its premises and was therefore liable for storage fee for 13 days at the rate of HK$50 per day and thus a sum of HK$650.  The defendant also claimed that when the claimant returned to collect her belongings, its staff had spent 2 hours attending to that.  On that basis, the defendant claimed time cost at the rate of HK$55 per hour or a sum of HK$110.

5.  The claim was heard before the Board on 8 January 2014.  After hearing evidence and the parties, including the defendant’s authorised representative, the Board found that it was in fact an employment relationship between the parties.  The jurisdictional challenge failed.  The Board accepted the claimant’s claim for salaries.  The Board also accepted the claimant’s claim for the reimbursement of travelling expenses.  As to the defendant’s counterclaim, the Board found that it fell all beyond the statutory jurisdiction of the Board.  The analysis was set out in the Adjudicator’s written reasons dated 7 February 2014.

6.  The defendant then applied for review, which had been fixed to be heard on 6 February 2014.  The defendant then also filed the present application for leave to appeal and indeed pursued that.  In the light of section 30(1) of the Minor Employment Claims Adjudication Board Ordinance, Cap 453 (“the Ordinance”), which will be set out below, the review hearing was cancelled.

THE INTENDED APPEAL

7.  Pursuant to section 31 of the Ordinance, an appeal from the Board has to be one on any ground involving a question of law or on the ground that the claim was outside the jurisdiction of the Board.  The defendant suggests both in its intended appeal.

8.  According to the notice of application, the Board is said to have erred in law in that it was an unfair trial.  It complains that the Board has unfairly rejected the request by the defendant’s representative, who is said to be incompetent to conduct the hearing, to telephone the defendant for assistance during the trial.

9.  As to the jurisdictional challenge, the defendant argues that the claimant accepted the terms of the written agreement between the parties, which says she was a contractor; and that she was in control of her work.

ERROR IN LAW

10.  The defendant argues that it was unfair trial because it was not aware that 8 January 2014 would be a trial as opposed to a hearing.

11.  I reject this argument.  The difference between a trial and a hearing that the defendant seeks to strike is artificial and without basis.  The Notice of Place and Day Fixed for Hearing (Form 3) dated 16 December 2013 was sufficiently clear.  It bore the bilingual warning that if the defendant did not attend the hearing, the Board might hear the claim in the absence of the defendant and make such award or order as the Board thought fit; or if the claimant did not attend, the claim might be struck out.

12.  The fact was that the defendant did attend by its authorised representative.  Then the defendant argues that the representative was incompetent.  I see no reason why the sending of its representative, as a matter of the defendant’s own choice and decision, could possibly be held against the claimant or the Board. As to the request by the representative to telephone the defendant for assistance, it happened in the course of the claimant’s evidence, and the adjudicator specifically explained in his written reasons that that was not appropriate or justified.  I see no reason for differing from that view of the matter.

JURISDICTION

13.  The defendant argues that the Board had no jurisdiction to determine if the parties were in an employment relationship.

14.  This must be wrong.  Whilst the Board may not assume jurisdiction over a matter that it does not have according to the Ordinance, it certainly has jurisdiction, and indeed must, determine any dispute as to the employment relationship between the parties to the claim for the purpose of determining whether the dispute falls within its jurisdiction.

15.  The defendant argues that the Board should not disregard the written contract between the parties.  According to the agreement (labelled as “自由人承辦商協議“), the claimant is said to have acknowledged and accepted that she was a contractor of the defendant; and that the Labour Tribunal would have no jurisdiction over the contract. Further it is argued that the claimant was in control of her work.

16.  The relevant principles set out in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156 have been consistently applied by the court, and indeed by the Board in the present case.  What the parties, particularly the employing party that designed the written contract, might have chosen to label their relationship in the contract, even if apparently accepted by the employee, could not be conclusive.  All must yield to the objective reality.

17.  In his reasons, the adjudicator set out the relevant principles and the indicia.  The reference, in my view, was correct.  The adjudicator then set out his analysis, applying the principles.  That and his conclusion, in my view, were what he was entitled to do and draw from the evidence.  That the defendant disagrees with such factual findings does not amount to an error of law.

FURTHER EVIDENCE

18.  During this hearing, the defendant emphasized that had it realised that it was a trial before the Board, it would have presented evidence that it in fact possessed.

19.  Section 30(1) of the Ordinance provides that the adjudicator may within 14 days from the date of the award or order review the award or order.  On such review, the adjudicator may reopen and rehear the claim wholly or in part and may call or hear fresh evidence.  As mentioned, the defendant has indeed applied for review; and a review hearing has been indeed fixed to be held earlier this month.  That would have been the defendant’s chance to seek to adduce further evidence.

20.  However, the defendant subsequently took out this application for leave to appeal.  Section 31(1) also provides that the Board may review its decision except where a party has filed an application for leave to appeal and does not agree to withdraw the application.  Obviously the defendant persisted in pursuing this application and thus the review hearing was cancelled.

21.  In the circumstances, the defendant is bound by the evidence adduced during the hearing before the Board; and the reference to further evidence is irrelevant.

THE COUNTERCLAIM

22.  I share the adjudicator’s observation from the documentary evidence that the defendant actually accepted that the claimant was entitled to the payment of HK$4,300.  In dispute was the claimant’s claim for reimbursement in the sum of HK$18.80 but more substantially the defendant’s counterclaim mentioned above.  Counterclaim like that, in my view, is regrettable, as I have grave doubt as to whether it has any foundation that would be recognised by the court in the circumstances of this case.  As the adjudicator pointed out, the counterclaim fell outside the jurisdiction of the Board anyway.

23.  During this hearing, the defendant further asserted that the claimant was in possession of certain property or business information belonging to the company that it should be entitled to recover.  This was new; and in any event, irrelevant to the question before the Board within its jurisdiction.

CONCLUSION

24.  The proposed appeal is devoid of merit.  The application for leave to appeal must be dismissed with no order as to costs.