LAM TSUI YEE PROVINSA v. MIAMIEE SPORTSWEAR FACTORY LTD

HCLA 109/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 109 OF 2004

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 4806/2004)

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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  This is an application for leave to appeal against the decision of Mr Adjudicator Mak originally made on 6 October 2004.  The applicant had asked for a review of the decision and on 26 October 2004, the Adjudicator refused the application.

2.   The applicant was the claimant in the Tribunal.  The respondent was her employer.  She claimed against her employer the following sums of monies owed to her when her employment was terminated on 29 May 2004:

(a)	Arrears of salary	HK$7,262.16
(b)	Arrears of overtime pay	HK$2,635.47
(c)	Payment in lieu of notice	HK$10,238.70
(d)	Petty cash	HK$32.00

3.  The Adjudicator made an award in favour of the applicant in the sums of HK$3,989.53 as arrears of salary and $2,142.45 as arrears of overtime pay.  He dismissed the claim for payment in lieu of notice and petty cash.

4.  Under section 35 of the Labour Tribunal Ordinance, an appeal to the High Court could only be granted if (a) there is an error of law or (b) the decision sought to be appealed against was outside the jurisdiction of the Tribunal.  In the present case, there is no suggestion that the Adjudicator had acted outside his jurisdiction.

5.  Of the various grounds of appeal set out in the application for leave to appeal, it appears that on the face of them, they are all related to points of facts only.  However for some of the grounds of appeal, such as ground (1) which alleged that the Adjudicator had acted carelessly, I am of the view that if one were to examine the decision in the light of that ground, it could reasonably be said that there is a point of law involved if the decision in question is reached without any evidence to support the decision or in ignorance of some material facts. 

6.  It is convenient for me to start with the applicant’s challenge to the finding on her claim on arrears in salary.  I am of the view that the challenge is basically premised on the applicant’s not satisfied with the Adjudicator’s accepting the evidence of the respondent’s witnesses and rejecting her evidence that Mr Li of the respondent had agreed to pay her at the rate of $13,800 per month.  I do not think that there is any point of law involved.  I will refuse leave to appeal against this part of the decision.

7.  In relation to the claim for arrears of overtime pay, I have difficulty in understanding, let alone accepting the Adjudicator’s finding.  In paragraphs 7 and 23 of his decision, he plainly found that the applicant worked overtime in March for 7.5 hours, in April for 25.8 hours and in May for 30.52 hours.  He also found that the hourly rate should be $52.90.  Thus the total number of overtime hours should be 63.82 hours and the amount of the overtime pay should be $3,376 as opposed to the award of $2,142.50.  What the Adjudicator purported to do was to award the applicant only 42.5 hours of overtime.  Mathematically this figure could be worked out by taking the figure for March to be 7.5 hours as found by him, and the figure of 14 hours for April, and 19 hours for May.  However the figures for April and May would be totally against the finding of the Adjudicator himself.  The only possible justification would be that in the applicant’s claim she only claimed 14 hours for April and 19 hours for May. 

8.  I would consider that prima facie, there is no evidence or finding by the Adjudicator to support the award of $2,142.50 made by the Adjudicator.  Also to say the least, there is an arguable point of law on whether the Adjudication was right to award a lesser amount than the amount claimed for March when he found that in fact the overtime hours was less than those claim and at the same time to hold the applicant to the number of hours set out on her claim when he found that the number of hours was in fact more than what she claimed.  It is highly arguable that in these circumstances, the Adjudicator should have directed an amendment to the claim so as to do justice in the case.  I am thus prepared to grant leave to appeal

9.   I came to the refusal of the claim for payment in lieu of notice.  The claim was predicated on the probation period being either 7 days or one month, but the Adjudicator found that the probation period in this case should be 3 months.  Accordingly on the finding of the Adjudicator, the respondent only needed to serve 7 days notice to terminate the applicant’s employment.  I consider that this issue turns on a pure finding of fact and there is no point of law involved.  Accordingly I would refuse leave to appeal against the dismissal of this award.

10.  As to the refusal to award the sum of $32 as petty cash payable for meal on days of overtime work, I would also consider that it is a question of fact and not law as to what is the relevant term of the contract provision.  I do not think any point of law is involved.  Accordingly I would not grant leave to appeal against this part of the decision.

11.  To conclude, I will grant leave to appeal against the decision of the Adjudicator on the award of the overtime pay.