CHOK KIN MING v. EQUAL OPPORTUNITIES COMMISSION

CHOK KIN MING v. EQUAL OPPORTUNITIES COMMISSION

The High Court held clause 13.1 must be construed to allow the employer to form an opinion about the manner/quality of completion of the agreement; the Labour Tribunal erred by construing 'satisfactory completion' as purely temporal and by failing to apply the correct irrationality/perversity standard when reviewing the employer's exercise of opinion; accordingly the appeal is allowed and the matter is remitted to the Labour Tribunal for redetermination applying the correct legal tests.

Citation
CHOK KIN MING v. EQUAL OPPORTUNITIES COMMISSION
Parties
Claimant (respondent): CHOK KIN MING; Defendant (appellant): EQUAL OPPORTUNITIES COMMISSION
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 March 2017
Case Number
HCLA42/2015
Procedural Posture
Labour Tribunal Appeal (point of Law) / Judgment on Appeal (remitted to Labour Tribunal)
Outcome
Appeal allowed; Labour Tribunal order set aside; matter remitted to Labour Tribunal for determination in light of this judgment.
Legal Topics
Gratuity, Construction of Contract, Discretion of Employer, Natural Justice, Appeal/remittal Principles, Freedom of Expression
Source Language
EN
Employment Law Contract Law Administrative Law Human Rights Gratuity Construction of Contract Discretion of Employer Natural Justice +2 more

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Parties

CHOK KIN MING

Claimant (respondent)

EQUAL OPPORTUNITIES COMMISSION

Defendant (appellant)

Procedural Posture

Labour Tribunal Appeal (point of Law) / Judgment on Appeal (remitted to Labour Tribunal)

Legal Issues

  1. 1 Whether clause 13.1 of the Conditions of Service permits the employer to take account of employee work performance when deciding entitlement to contract-end gratuity
  2. 2 Whether the Labour Tribunal applied the correct legal test (irrationality/perversity standard) in reviewing the employer's exercise of opinion under clause 13.1
  3. 3 Whether this court should substitute its own conclusion or remit the matter to the Labour Tribunal

Ratio Decidendi

The High Court held clause 13.1 must be construed to allow the employer to form an opinion about the manner/quality of completion of the agreement; the Labour Tribunal erred by construing 'satisfactory completion' as purely temporal and by failing to apply the correct irrationality/perversity standard when reviewing the employer's exercise of opinion; accordingly the appeal is allowed and the matter is remitted to the Labour Tribunal for redetermination applying the correct legal tests.

Court Disposition

Appeal allowed; Labour Tribunal order set aside; matter remitted to Labour Tribunal for determination in light of this judgment.

Orders

  • Order setting aside Labour Tribunal decision in LBTC 543/2015
  • Remit the matter to the Labour Tribunal for re-determination applying the correct construction of clause 13.1 and the irrationality standard