NG KAR FOOK BRIAN v. ON PO BLEACHING AND DYEING FTY. LTD

NG KAR FOOK BRIAN v. ON PO BLEACHING AND DYEING FTY. LTD

The presiding officer erred in law by declining jurisdiction to hear the appellant's set-off claims because the alleged failure to account for cash advances arose from breach of terms of the employment contract and thus fell within the Labour Tribunal's jurisdiction; the appropriate remedy was to remit the set-off to the Labour Tribunal for retrial and to stay execution of the award to the extent of the set-off, while noting that a restitutionary claim (money had and received) could require transfer to the District Court.

Citation
NG KAR FOOK BRIAN v. ON PO BLEACHING AND DYEING FTY. LTD
Parties
Appellant (defendant): ON PO BLEACHING AND DYEING FTY. LTD; Respondent (1st Claimant): NG KAR FOOK BRIAN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 April 2003
Case Number
HCLA43/2002
Procedural Posture
Labour Tribunal Appeal / Judgment on Appeal Remitting Set Off for Retrial
Outcome
Appeal allowed in part; original award not set aside; set-off remitted to Labour Tribunal for retrial; stay of execution of award to extent of set-off pending further order
Legal Topics
Constructive Dismissal, Set Off, Jurisdiction of Tribunal, Retrial, Restitution (money Had and Received)
Source Language
EN
Employment Law Labour Law Contract Law Civil Procedure Constructive Dismissal Set Off Jurisdiction of Tribunal Retrial +1 more

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Parties

ON PO BLEACHING AND DYEING FTY. LTD

Appellant (defendant)

NG KAR FOOK BRIAN

Respondent (1st Claimant)

Procedural Posture

Labour Tribunal Appeal / Judgment on Appeal Remitting Set Off for Retrial

Legal Issues

  1. 1 Whether the Labour Tribunal has jurisdiction to adjudicate a defendant's set-off arising from alleged failure to account for cash advances received by an employee
  2. 2 Whether the presiding officer erred in law by declining jurisdiction over the set-off without sufficient investigation
  3. 3 Whether the appellant's claims in restitution (money had and received) can be pursued in the Labour Tribunal or must be transferred to another court

Ratio Decidendi

The presiding officer erred in law by declining jurisdiction to hear the appellant's set-off claims because the alleged failure to account for cash advances arose from breach of terms of the employment contract and thus fell within the Labour Tribunal's jurisdiction; the appropriate remedy was to remit the set-off to the Labour Tribunal for retrial and to stay execution of the award to the extent of the set-off, while noting that a restitutionary claim (money had and received) could require transfer to the District Court.

Court Disposition

Appeal allowed in part; original award not set aside; set-off remitted to Labour Tribunal for retrial; stay of execution of award to extent of set-off pending further order

Orders

  • Stay execution of the award up to the extent of the set-off pending further order by the Court or by the Labour Tribunal
  • Remit the set-off to the Labour Tribunal for retrial before another presiding officer