SERMA DAMBAR KUMAR AND OTHERS v. LIMBU LALITBAHADUR T/A TRISHUL ENGINEERING & MANPOWER SERVICES

HCLA 51/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 51 OF 2003

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 7938 OF 2002)

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J U D G M E N T

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1. On 24 February 2003, the Labour Tribunal made an award against the Defendant. On 29 March 2003, on the Defendant's application for review, the Labour Tribunal maintained its original award. This is an application for leave to appeal against the latter decision of the Labour Tribunal.

2. In the proceedings below, a major issue between the parties was whether the Defendant was liable to make payment in lieu of notice. The Tribunal found that the Defendant had wrongfully repudiated the various contracts of employment in question amounting to constructive dismissal of the Claimants. The Labour Tribunal also found that the contracts in question were continuous contracts and pursuant to section 5 of the Employment Ordinance, Cap. 57 were contracts for one month renewable from month to month. This was so notwithstanding the Defendant's argument that when he employed the Claimants, he made it clear to them that their employment was for a short-term project. The Tribunal noted that the period of employment was never expressly stated or agreed between the parties nor was there any written contract of employment or anything in writing evidencing the employment contract. As the contracts of employment were continuous contracts for one month renewable from month to month, the Labour Tribunal further concluded that the Defendant was liable to make payment in lieu of notice in respect of the constructive dismissal of the Claimants.

3. In my judgment, the reasoning of the Labour Tribunal cannot be faulted. I can see no arguable ground of appeal.

4. As for the making of a counterclaim for payment in lieu of notice by the Defendant against the Claimants, the Defendant had given his explanation for the making of the counterclaim before the Labour Tribunal, but that explanation was not accepted by the Labour Tribunal.

5. In my judgment, that was a finding of fact. In this type of appeals, the court cannot disturb a finding of fact by the Labour Tribunal unless an error of law is involved. I can discern no error of law in respect of the present finding of fact; so again, this is not an arguable ground of appeal.

6. Finally, as regards the question of stay of execution, the matter does not concern this court. The Defendant should approach the Labour Tribunal.

7. So for all these reasons, this application for leave is dismissed; I make no order as to costs.