ROBERT J. MACE v. TAO HAK PING t/a HON HING HONG

HEADNOTE

                Master and servant - whether a claim for air passage and freight cost which formed the consideration for termination of employment falls within the jurisdiction of the District Court or the exclusive jurisdiction of Labour Tribunal.

                Following cases considered:-

__________________

BETWEEN

____________________

EX-TEMPORE RULING

____________________

1. This matter is referred to me by the Deputy Registrar for determination on the issue of jurisdiction.

2. The cause of action is breach of an agreement on the part of Defendant as the former employer of the Plaintiff to pay for the air passage and the freight cost and the Plaintiff's furniture and personal effects from Hong Kong to London, which agreement constituted the consideration for the Plaintiff's agreeing to the termination of his employment by the Defendant.

3. The legal question arises as to whether this matter falls exclusively within the jurisdiction of the Labour Tribunal. Section 7 of the Labour Tribunal Ordinance Cap. 25 provides (1) The Tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the schedule and (2) Save as is provided in this ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong. The operative words in the schedule are:-

It is crystal clear that once a matter falls within the jurisdiction of the Labour Tribunal, it will not be actionable in any court in Hong Kong.

4. In Panalpina (Hong Kong) Ltd. v. Ulrich Haldemann, Hunter, J. ruled in the following terms:-

"In my judgment the phrase "sum of money" must be construed in the light of the fact that practically every claim for "breach of a term ... of a contract" will be for damages unliquidated in law but quantified in practice. It follows, I think that the phrase must cover such claims. I agree with Robers, C.J. that the legislature anticipated a "quantified" claim and a claim that was "ascertained" or ascertainable. But I regret that I cannot agree that this makes the claim one for liquidated damages, or that it limits the tribunal's jurisdiction to such claims. This conclusion seems to me to be supported by paragraph 3. No claim "founded in tort" can be for liquidated damages. It may contain a calculated or special damages element; but the bulk is likely to be for general damages. I am much comforted to know that the same conclusion was reached by O'Connor, J. on 18th December 1979 in Stewart and Others v. The Hong Kong Philharmonic Society Limited H.C. Civil Action No. 3031/79. "

5. The Judgment of Hunter, J. came before the Hong Kong Philharmonic Society Limited but after National Ebauch and as such Judgment being the latest must have the command of the day. It can readily be seen from Panalpina that "sum of money" is not only limited to liquidated damages generally in the pleading sense but also extends to a "quantified" claim and a claim that is either "ascertained" or ascertainable.

6. Returning to the present case, the two sums under claim for freight cost and air passage are readily ascertainable by reference to quotations or receipts for the incurring of such expenditure. They clearly fall within "ascertainable" sums of money which are within the exclusive jurisdiction of the Labour Tribunal and outside the jurisdiction of other judicial organs.

7. If it were argued that the terms of freight cost and air passage did not constitute a term of employment, such argument must fail for at the time when the terms were agreed upon the Plaintiff's employment had not yet been terminated and he was still in the employ. The terms were made in the course of employment as terms for the termination of the employment. As terms and conditions for termination of employment, whether express or implied, they formed part and partial of a contract of employment.

8. In the event, the District Court has no jurisdiction to entertain this action which has to be dealt with by the Labour Tribunal upon the Plaintiff filing a claim there.