For employment-related disputes, the Labour Tribunal offers a straightforward and cost-effective way for employers and employees to resolve disputes.
This article addresses key questions surrounding the Labour Tribunal proceedings, from filing the claim to navigating the proceedings before the Labour Tribunal.
The law in this respect is complex. Please note that this article does not, and is not intended to, constitute legal advice, and should not be relied upon as such. Slotine can assist with issued surrounding employment termination and preparing or defending a claim before the Labour Tribunal in Hong Kong. Please contact us if you wish to learn more about this.
STARTING A CLAIM
What claims can be brought before the Labour Tribunal?
The Labour Tribunal has jurisdiction over claims exceeding HK$15,000. Generally, claims that can be brought before the Labour Tribunal are those which involve a breach of the provisions of employment contracts or apprenticeship contracts, or a breach of:
- the Employment Ordinance (Cap. 57) (EO);
- the Apprenticeship Ordinance (Cap. 47); or
- the Minimum Wage Ordinance (Cap. 608).
The Labour Tribunal also handles cases related to non-Hong Kong-based employment contracts that require performance in Hong Kong, and contracts that are governed by the Contracts for Employment Outside Hong Kong Ordinance (Cap. 78).
The most common claims include breaches of the EO and employment contracts, often related to the payment of wages and employment termination issues.
What claims cannot be brought before the Labour Tribunal?
The Labour Tribunal does not handle claims outside the scope of the ordinances listed above or claims founded in tort law (such as claims relating to causing loss by unlawful means).
Can the parties explore amicable settlement before filing their claim with the Labour Tribunal?
In case of a dispute, either party can contact the Labour Relations Division of the Labour Department to initiate a free conciliation procedure. Conciliation is subject to both parties agreeing to attempt conciliation. A Labour Department officer will act as a neutral intermediary between the parties and will interview the claimant and assist them in filing their claim with the Labour Relations Division. Both parties will then be invited to attend a conciliation meeting, either in person or by telephone.
If either party refuses to attempt conciliation or if a conciliation fails, the claimant can then proceed with filing their claim with the Labour Tribunal.
How can a claim be filed before the Labour Tribunal?
To file a claim, the claimant should make an appointment with the Labour Tribunal, either through the Judiciary’s website or by calling the tribunal’s telephone hotline. In practice, as of the date of this article, a Labour Department claim reference number is required to make an appointment online. This is because, according to the EO, a certificate of conciliation must be signed by a Labour Department conciliation officer before a case can be heard by the Labour Tribunal. This certificate specifies one of the following:
- one or more party(ies) refused to take part in conciliation;
- the parties attempted conciliation but no settlement has been reached;
- conciliation is unlikely to result in a settlement being reached; or
- conciliation may prejudice the interests of a party.
However, Labour Tribunal officers can also sign the certificate of conciliation. Hence, the claimant can make an appointment with the Labour Tribunal directly by telephone, without going through the Labour Department’s Labour Relations Division conciliation services.
What should the claimant bring on the date of the appointment to file the claim?
On the appointment date, a Labour Tribunal officer will assist the claimant in filing the following forms:
- Title to Claim (Form 1) setting out the details of the parties; and
- Form of Claim (Form 2) setting out the legal grounds of the claim, the calculation of the amount claimed and further details as necessary.
Hence, the claimant should bring all supporting documents relevant to the claim (such as employment contract, employment-related policies, correspondence with the other party, payslips, annual leave, MPF contribution records). If the other party is a company, the claimant should bring the company’s latest annual return to the appointment.
It is crucial to identify the legal grounds for the claim and calculate the amount claimed accurately before filing the claim.
What filing fees apply to claims before the Labour Tribunal?
The filing fees depend on the amount claimed. The fees range between HK$20 and HK$50.
What is the limitation period for claims before the Labour Tribunal?
The time limit varies depending on the grounds for the claim, for instance:
- claims for breach of the employment contract or for awards of termination payments: six years from the date of the breach (the date of variation of the employment terms or the last day of employment, as the case may be);
- claims for unreasonable termination, unlawful termination and unreasonable variation of the employment terms: nine months from the date of variation of the employment terms or the last day of employment, as the case may be;
- claims for severance payment: three months from the last day of employment.
THE PROCEEDINGS
What procedure can be expected before the Labour Tribunal?
The first hearing, called the call-over hearing, usually takes place within 10 to 30 days after filing the claim. This hearing is not a trial: its purpose is to assess the available evidence and for the Labour Tribunal Presiding Officer to provide directions to the parties to ensure the case is trial-ready.
Before the call-over hearing, the parties may be required to draft and serve a witness statement. A witness statement is a statement of the facts of the case and the grounds for the dispute, which must be accompanied by all relevant supporting evidence.
Depending on the complexity of the case, there may be one or more mention hearing(s) after the call-over hearing and before the case is brought to trial. The purpose of mention hearings is for the Presiding Officer to undertake further investigations and examine further evidence and supporting documents to make sure the case is ready to proceed to trial.
The Labour Tribunal Presiding Officer will eventually fix a date for the trial hearing. During the trial hearing, the Presiding Officer will review all the evidence and the parties may also get an opportunity to examine and cross examine witnesses. The Presiding Officer may deliver the judgement at the end of the trial hearing, or alternatively fix a future date to deliver the judgement.
What is the usual duration of the proceedings?
The whole process from filing the claim to obtaining a judgement can generally take anywhere between six months to two years, depending on case complexity.
Can parties be legally represented before the Labour Tribunal?
Parties cannot be represented by a lawyer at hearings before the Labour Tribunal. However, lawyers can be engaged for guidance and are also allowed to sit in the court room during hearings.
Can parties be represented by someone other than their lawyer before the Labour Tribunal?
The parties must appear in person to hearings. If a company is a party to the proceedings, it may be represented by an officer.
However, a party may apply for authorisation from the Labour Tribunal to be represented by an office bearer of a registered trade union. The application must be submitted before each hearing. It must contain a written authorisation for the trade union officer bearer to appear as the party’s representative and set out the circumstances preventing the party from attending the hearing personally. In practice, trade unions would generally require the party to become a member of the trade union to accept to represent them at a hearing.
What happens if a party fails to attend a hearing?
If the claimant fails to attend a hearing, the Labour Tribunal may strike out the claim. If the defendant fails to attend a hearing and if the facts of the case are sufficiently established, the Labour Tribunal may make an award or order in the defendant’s absence.
Can parties attend hearings by videoconference?
The Labour Tribunal generally does not accommodate requests unless there are special circumstances that can be substantiated by evidence. Applications for a hearing to be held by way of videoconference should be made as early as possible and a new application must be made for each hearing.
Can parties settle their dispute at any time?
The parties can settle their dispute at any time before the judgement is delivered. Throughout the proceedings before the Labour Tribunal, the Labour Tribunal officer and the Presiding Officer encourage the parties to reach an amicable settlement. In the event the case is settled, the terms of the settlement will be formalised in a settlement agreement to be signed by both parties and the claimant must withdraw the claim from the Labour Tribunal.
In which circumstances are claims transferred from the Labour Tribunal to the District Court or High Court?
A case must be transferred to either the District Court or the High Court where it is outside the jurisdiction of the Labour Tribunal. This includes claims involving causes of action of tort or a mix of tort and contract claims and claims involving breaches of other ordinances (such as disability or sex discrimination-related claims). The case may also be transferred at the initiative of the Labour Tribunal Presiding Officer where the matter is of high complexity.
Where the value of the claim exceeds HK$3 million, the Labour Tribunal should transfer the case to the High Court. If the claim does not exceed HK$3 million, the case can be transferred to the District Court.
THE OUTCOME OF THE CASE
Can a party appeal the decision or apply for review?
Once a judgement is made, there is no automatic right to appeal and parties must apply for leave to appeal first.
If a party applies for leave to appeal the Labour Tribunal judgement:
- the application for leave to appeal must be filed with the Court of First Instance, on the grounds that either there was an error in law, or the case was outside the jurisdiction of the Labour Tribunal;
- the decision of the Court of First Instance on the application for leave to appeal cannot be contested and is final.
Instead of an appeal, a party can also apply for a review, which involves the same Labour Tribunal Presiding Officer who handed down the first judgement re-examining the case.
Regarding the time limit, applications for appeal and applications for review must be made within seven days of the relevant judgement made by the Labour Tribunal Presiding Officer.
Can a party recover costs incurred in relation to the proceedings?
Reasonable costs incurred, such as travel costs or costs incurred in preparing and serving documents, can be recovered by the winning party. However, as parties are not allowed legal representation, the parties cannot recover lawyers’ costs incurred in relation to their claim before the Labour Tribunal.
KEY TAKEAWAYS
- Although a Labour Tribunal officer will assist parties in filing their claim, the claimant should come prepared with supporting documents and evidence to ensure that the claim forms contain an accurate description of the facts, the legal grounds and the amount(s) claimed.
- The calculation of entitlements an employee is owed upon termination is a complex area of law (please refer for instance to our Q&A on annual leave entitlements), and parties may weigh the cost versus benefit of seeking legal advice to accurately determine this amount.
- Being proactive and responsive is key as the parties are not allowed to be legally represented at the hearings and during trial itself.
If you need help or advice regarding employment-related disputes, get in touch with us.
