FUNG TSUN TONG v. CHOU MAN LEUNG

FUNG TSUN TONG v. CHOU MAN LEUNG

The court held the DPO had not sufficiently discharged her statutory duty to investigate objective circumstantial evidence (including D2 receipts and detailed costs/expenses per trip) that could bear on the Twin Issues and whether summary dismissal was justified. The DPO Order and DPO Review Order were set aside insofar as the Item (B) award (payment in lieu of notice) and that claim was remitted to the Tribunal before the same DPO for re-trial with further inquiry and investigation. $34,041.83 of the security previously paid out was ordered reinstated and paid into the Tribunal; costs of trial and review in relation to Item (B) remitted to re-trial DPO; costs of the appeal ordered nisi...

Citation
FUNG TSUN TONG v. CHOU MAN LEUNG
Parties
Claimant in Lbtc1800/2015; Respondent on Appeal: Fung Tsun Tong; 2nd Defendant in Lbtc1800/2015; Appellant on Appeal (d2): Chou Man Leung; Defendant in Lbtc1800/2015 (d1; Claim Withdrawn): A Link Network (H.K.) Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
11 July 2017
Case Number
HCLA13/2016
Procedural Posture
Appeal From Labour Tribunal to Court of First Instance / Hearing on Leave to Appeal; Judgment on Appeal and Remittal Order
Outcome
Appeal allowed in part; DPO Order and Review Order set aside in respect of Item (B) Claim; Item (B) remitted for re-trial; partial reinstatement of security; costs order nisi in favour of appellant
Legal Topics
Employment Relationship, Summary Dismissal, Duty to Investigate by Tribunal, Remittal for Re Trial, Costs
Source Language
EN
Employment Law Administrative Law Civil Procedure Employment Relationship Summary Dismissal Duty to Investigate by Tribunal Remittal for Re Trial Costs

Case Brief

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Parties

Fung Tsun Tong

Claimant in Lbtc1800/2015; Respondent on Appeal

Chou Man Leung

2nd Defendant in Lbtc1800/2015; Appellant on Appeal (d2)

A Link Network (H.K.) Limited

Defendant in Lbtc1800/2015 (d1; Claim Withdrawn)

Procedural Posture

Appeal From Labour Tribunal to Court of First Instance / Hearing on Leave to Appeal; Judgment on Appeal and Remittal Order

Legal Issues

  1. 1 Whether the Deputy Presiding Officer (DPO) failed to discharge her statutory duty to investigate relevant evidence including gas station discount cards and fuel receipts
  2. 2 Whether the DPO should have made further inquiry into objective costs/expenses per trip (fuel cost, discounts, tolls, parking, maintenance, food, other expenses) to assess plausibility of claimed earnings
  3. 3 Whether summary dismissal without notice or payment in lieu was justified on the Twin Issues (failure to use provided Discount Cards and use of illegal fuel)

Ratio Decidendi

The court held the DPO had not sufficiently discharged her statutory duty to investigate objective circumstantial evidence (including D2 receipts and detailed costs/expenses per trip) that could bear on the Twin Issues and whether summary dismissal was justified. The DPO Order and DPO Review Order were set aside insofar as the Item (B) award (payment in lieu of notice) and that claim was remitted to the Tribunal before the same DPO for re-trial with further inquiry and investigation. $34,041.83 of the security previously paid out was ordered reinstated and paid into the Tribunal; costs of trial and review in relation to Item (B) remitted to re-trial DPO; costs of the appeal ordered nisi...

Court Disposition

Appeal allowed in part; DPO Order and Review Order set aside in respect of Item (B) Claim; Item (B) remitted for re-trial; partial reinstatement of security; costs order nisi in favour of appellant

Orders

  • DPO Order and DPO Review Order set aside insofar as award for Item (B) Claim (payment in lieu of notice)
  • Item (B) Claim remitted to the Labour Tribunal before the same Deputy Presiding Officer for re-trial with further inquiry and investigation into costs/expenses and D2 receipts