Chan Yat San v. Future Lucky (296) Ltd HCLA 18/2012

In brief:

The Labour Tribunal made an award against Future Lucky (296) Ltd (“Defendant”) after proceeding with a hearing, in the absence of the Defendant. The Defendant’s sole director and shareholder, Mr Lau acted as its representative in response to a claim regarding employment status. Mr Lau was unable to attend the hearing because he was in a comatose state in an intensive care unit. His wife, Mrs Lau made an application for a postponement on this basis. This was rejected by the Presiding Officer of the Labour Tribunal, as one adjournment had already taken place and therefore the Defendant was ordered to send another representative. As there were no other suitable representatives for the Defendant, the hearing proceeded in the absence of Mr Lau on the basis that the Presiding Officer considered that the facts relating to the claim had been sufficiently established. An award was made against the Defendant in favour of Chan Yat San (“Claimant”). The Defendant successfully lodged an appeal against the award in the Court of First Instance (“CFI”). The award was set aside and the matter was remitted for a retrial.

Outcome of appeal

The CFI recognised that the Labour Tribunal has the power under the Labour Tribunal Ordinance to hear and determine a claim in the absence of a defendant “if the Tribunal is of the opinion that the facts relating to the claim are sufficiently established”. The Presiding Officer has an inquisitorial role in addition to a statutory duty to investigate all relevant matters, but this duty is recognised not to be absolute. At the same time, case law has established that the investigation must allow a fair and proper determination of the claim. In light of these considerations, the CFI allowed the appeal on the following basis:

  1. The Labour Tribunal had to determine whether the Claimant was an employee of the Defendant or an independent contractor providing services for the Defendant. The factual evidence on this was in dispute and should have been tested in cross examination.
  2. The Presiding Officer had not given reasons for rejecting the Defendant’s evidence, or preferring the evidence of the Claimant and her investigation of the issues was inadequate.

The appeal was allowed and the judgment was set aside and the case was remitted to the Labour Tribunal to be heard before a different presiding officer.

Take away points:

It would be fair to say that the facts of this case are quite unusual! Nevertheless the CFI’s analysis of the duties of the Labour Tribunal when considering a claim in the absence of a defendant, have a broader relevance. The judgment is a useful reminder of the standard that is expected of the Labour Tribunal before it can conclude that the “facts relating to a claim are sufficiently established”. This may be helpful if an employer finds itself in a position where it cannot represent itself or obtain a postponement until it can find suitable representation.