GHALE GANJA MAN v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD AND ANOTHER

GHALE GANJA MAN v. CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LTD AND ANOTHER

The appeal is allowed because the Deputy Presiding Officer erred in law by admitting and relying on crucial late-produced documents (the SG job application and contract) without properly investigating the unexplained change of stance by the 2nd Respondent and without giving the appellant adequate opportunity or consideration of prejudice; the factual findings must be reopened and the matter remitted to the Labour Tribunal for retrial.

Citation
[2021] HKCFI 2764
Parties
Appellant/claimant: GHALE GANJA MAN; 1st Respondent/1st Defendant: CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LIMITED; 2nd Respondent/2nd Defendant: CHINA TECHNOLOGY CORPORATION LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 September 2021
Case Number
HCLA4/2019
Procedural Posture
Labour Tribunal Appeal to High Court (on Appeal From LBTC No 3480 of 2017) / Judgment on Appeal; Remitted to Labour Tribunal for Retrial
Outcome
Appeal allowed and case remitted to the Labour Tribunal for retrial; costs of the appellant in this appeal to be borne by the 1st and 2nd Respondents to be taxed if not agreed.
Legal Topics
Employment Status (employee Vs Contractor), Admission of Late Evidence, Procedural Fairness and Case Management, MPF and Tax as Indicia of Employment, Remittal/retrial
Source Language
EN
Employment Law Labour Law Civil Procedure Evidence Employment Status (employee Vs Contractor) Admission of Late Evidence Procedural Fairness and Case Management MPF and Tax as Indicia of Employment +1 more

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Parties

GHALE GANJA MAN

Appellant/claimant

CHINA STATE CONSTRUCTION ENGINEERING (HONG KONG) LIMITED

1st Respondent/1st Defendant

CHINA TECHNOLOGY CORPORATION LIMITED

2nd Respondent/2nd Defendant

Procedural Posture

Labour Tribunal Appeal to High Court (on Appeal From LBTC No 3480 of 2017) / Judgment on Appeal; Remitted to Labour Tribunal for Retrial

Legal Issues

  1. 1 Whether the appellant was an employee of the 2nd Respondent for the three disputed periods or of a subcontractor or an independent subcontractor
  2. 2 Whether the Deputy Presiding Officer erred in admitting and relying on late-produced evidence (the SG documents) without adequate investigation or allowing adequate time for the appellant to meet the case
  3. 3 Whether MPF and tax records and other indicia were properly considered in determining employment status

Ratio Decidendi

The appeal is allowed because the Deputy Presiding Officer erred in law by admitting and relying on crucial late-produced documents (the SG job application and contract) without properly investigating the unexplained change of stance by the 2nd Respondent and without giving the appellant adequate opportunity or consideration of prejudice; the factual findings must be reopened and the matter remitted to the Labour Tribunal for retrial.

Court Disposition

Appeal allowed and case remitted to the Labour Tribunal for retrial; costs of the appellant in this appeal to be borne by the 1st and 2nd Respondents to be taxed if not agreed.

Orders

  • Appeal allowed
  • Matter remitted to the Labour Tribunal for retrial