MOHAMMAD JAVID v. MADA CONSTRUCTION & ENGINEERING LTD.

MOHAMMAD JAVID v. MADA CONSTRUCTION & ENGINEERING LTD.

The Presiding Officer erred in law by resolving material factual disputes (whether absences were authorised and whether employment subsisted) on the basis of documents without hearing evidence or permitting cross-examination; consequently the appeal is allowed and the matter is remitted to the Labour Tribunal for retrial before another Presiding Officer.

Citation
MOHAMMAD JAVID v. MADA CONSTRUCTION & ENGINEERING LTD.
Parties
Claimant: Mohammad Javid; Defendant: Mada Construction & Engineering Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
16 January 2003
Case Number
HCLA47/2002
Procedural Posture
Labour Tribunal Appeal / Court of First Instance Judgment on Appeal; Remitted to Labour Tribunal for Retrial
Outcome
Appeal allowed
Legal Topics
Severance Pay, Wages in Lieu of Notice, Continuous Employment, Procedural Fairness, Labour Tribunal Procedure
Source Language
EN
Employment Law Civil Procedure Severance Pay Wages in Lieu of Notice Continuous Employment Procedural Fairness Labour Tribunal Procedure

Case Brief

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Parties

Mohammad Javid

Claimant

Mada Construction & Engineering Ltd

Defendant

Procedural Posture

Labour Tribunal Appeal / Court of First Instance Judgment on Appeal; Remitted to Labour Tribunal for Retrial

Legal Issues

  1. 1 Whether the claimant was employed under a continuous contract for purposes of the Employment Ordinance (First Schedule paragraph 3(2)(b))
  2. 2 Whether periods of absence were authorised leave with the employer's consent or unauthorised absence breaking continuity of employment
  3. 3 Whether the claimant's attendance on 15 October 2001 meant employment was still subsisting

Ratio Decidendi

The Presiding Officer erred in law by resolving material factual disputes (whether absences were authorised and whether employment subsisted) on the basis of documents without hearing evidence or permitting cross-examination; consequently the appeal is allowed and the matter is remitted to the Labour Tribunal for retrial before another Presiding Officer.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed
  • Case remitted to the Labour Tribunal for retrial before another Presiding Officer