HUI KING FAI v. THE HONG KONG COUNCIL OF SOCIAL SERVICE

HUI KING FAI v. THE HONG KONG COUNCIL OF SOCIAL SERVICE

The High Court found material misdirections and/or non-directions by the Labour Tribunal on mixed questions of fact and law (including failure to properly assess whether the employer proved a valid reason under s32K and whether there was a causal contravention of s72B(1)); those errors occasioned substantial wrong or miscarriage. The appropriate remedy was to allow the appeal, set aside the Tribunal award, and remit the claim to the Labour Tribunal for rehearing before another presiding officer, leaving the legal framework that an employer must prove a valid reason under s32K where s32A and s72B are engaged intact.

Citation
HUI KING FAI v. THE HONG KONG COUNCIL OF SOCIAL SERVICE
Parties
Appellant/employer: Appellant (federation of non-government social service agencies); Respondent/employee: Ms Fang
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 August 2016
Case Number
HCLA9/2016
Procedural Posture
Employment Dismissal Appeal Under Employment Ordinance (part Via) / High Court Appeal (leave to Appeal Given); Judgment Remitting Matter to Labour Tribunal for Rehearing
Outcome
Appeal allowed; Labour Tribunal award set aside and matter remitted for rehearing before a different presiding officer
Legal Topics
Wrongful Dismissal, Retaliation/whistleblower Protection (s72 B), Statutory Remedies and Compensation (s32 a S32 P), Valid Reason for Dismissal (s32 K), Contractual Terms (staff Manual)
Source Language
EN
Employment Law Labour Law Statutory Interpretation Wrongful Dismissal Retaliation/whistleblower Protection (s72 B) Statutory Remedies and Compensation (s32 a S32 P) Valid Reason for Dismissal (s32 K) Contractual Terms (staff Manual)

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Appellant (federation of non-government social service agencies)

Appellant/employer

Ms Fang

Respondent/employee

Procedural Posture

Employment Dismissal Appeal Under Employment Ordinance (part Via) / High Court Appeal (leave to Appeal Given); Judgment Remitting Matter to Labour Tribunal for Rehearing

Legal Issues

  1. 1 Whether s72B(1) of the Employment Ordinance applied to the respondent's claim
  2. 2 Whether the dismissal was for a valid reason within s32K
  3. 3 Whether the employer proved a valid reason for dismissal (burden under s32A(4))

Ratio Decidendi

The High Court found material misdirections and/or non-directions by the Labour Tribunal on mixed questions of fact and law (including failure to properly assess whether the employer proved a valid reason under s32K and whether there was a causal contravention of s72B(1)); those errors occasioned substantial wrong or miscarriage. The appropriate remedy was to allow the appeal, set aside the Tribunal award, and remit the claim to the Labour Tribunal for rehearing before another presiding officer, leaving the legal framework that an employer must prove a valid reason under s32K where s32A and s72B are engaged intact.

Court Disposition

Appeal allowed; Labour Tribunal award set aside and matter remitted for rehearing before a different presiding officer

Orders

  • Award of $150,000 set aside
  • Respondent's claim remitted to the Labour Tribunal for a new hearing before another presiding officer