High Court allows appeal on the basis of Labour Tribunal’s failure to investigate and procedural unfairness

On 17 September 2021, the High Court handed down its reasons for judgment in Ghale Ganja Man v China State Construction Engineering (Hong Kong) Ltd and China Technology Corporation Ltd [2021] HKCFI 2764 allowing the appeal from the decision of the Labour Tribunal.

The Appellant (Mr Ghale Ganja Man) worked on 3 construction site projects consecutively. He brought a claim in the Labour Tribunal against the 1^st and 2^nd Respondents for unpaid wages, bonus and various statutory payments, contending that the 2^nd Respondent was his employer and the 1^st Respondent was the principal contractor when he worked on all 3 projects.

There was no dispute between the parties that the Appellant was employed by the 2^nd Respondent when he worked on the 2^nd construction site project at Hung Hom station.

The Respondents contended, however, that the Appellant was engaged as an independent contractor (rather than as the 2^nd Respondent’s employee) when he worked on the 3^rd construction site project at the Hong Kong–Zhuhai–Macau Bridge.

As for the 1^st construction site project at Admiralty station, the 2^nd Respondent had accepted that the Appellant was indeed its employee. Subsequently, however, the 2^nd Respondent’s stance changed during cross-examination of the Appellant, when the 2^nd Respondent’s representative alleged that the Appellant had forged his employment contract in relation to the 1^st construction site project. It was further asserted that the Appellant had been employed by Sino Gurkhas Construction Engineering Ltd, rather than by the 2^nd Respondent.

It was only on the 3^rd day of the trial, after the adjournment over the weekend, that the 2^nd Respondent produced the Appellant’s purported application form and employment contract with Sino Gurkhas for the 1^st construction site project. The Appellant contested the authenticity of those documents.

The Deputy Presiding Officer in the Labour Tribunal found in favour of the Respondents and held that the 2^nd Respondent was not the Appellant’s employer when he worked on the 1^st and 3^rd construction site projects. The 1^st Respondent was accordingly not liable as principal contractor.

The Deputy Presiding Officer maintained his findings at the subsequent review hearing.

On appeal to the High Court, Mr Justice S T Poon held that the Tribunal erred in law in failing to properly investigate the 2^nd Respondent’s change in stance midway through the trial on a crucial issue. To discharge its statutory duty to investigate under section 20 of the Labour Tribunal Ordinance (Cap. 25), the Tribunal should have required the 2^nd Respondent to give a proper explanation for producing the documents at the last minute and should have considered calling the maker of the witness statement setting out the 2^nd Respondent’s initial stance to testify. In accepting the late documents and in relying on those documents in its finding, the Tribunal failed to explain sufficiently how they could be reconciled with the 2^nd Respondent’s initial stance.

Further, the Court held that it was procedurally unfair to the Appellant to give him only a lunch adjournment to consider those belated but important documents.

Accordingly, the appeal was allowed and the matter was remitted to the Tribunal for re-trial.

Osmond Lam and Dexter Leung acted for the Appellant, instructed by C.W. Heung & Partners.

The Court’s reasons for judgment can be found here.