Redefining The Jurisdiction Of The Courts In Hearing Employment Claims

HCA 2313/2012

Anneli Munkholm v Elec-Tech International (H.K.) Company Limited

On 17 June 2013, Master S Kwang handed down an unprecedented ruling on the issue of whether the High Court has jurisdiction to hear a Plaintiff's claims where some of the items claimed fell within the Labour Tribunal's exclusive jurisdiction and other items were within the High Court's jurisdiction.

The hearing before Master Kwang was in respect of an application on behalf of the Defendant to set aside a judgment which had been entered in default of an Acknowledgment of Service being filed by the Defendant.

The Defendant's Counsel argued that the judgment was entered irregularly on the basis that the Labour Tribunal had exclusive jurisdiction under section 1(a) of the Schedule to the Labour Tribunal Ordinance (Cap 25) ("the Ordinance"). The Defendant submitted that the Plaintiff should have issued proceedings at the Labour Tribunal instead of issuing a Writ at the High Court.

Section 7(1) of the Ordinance provides: "The tribunal shall have jurisdiction to inquire into, hear and determine the claims specified in the Schedule."

Section 7(2) of the Ordinance provides: "Save as is provided in this Ordinance, no claim within the jurisdiction of the tribunal shall be actionable in any court in Hong Kong".

The Schedule sets out the claims which are within the exclusive jurisdiction of the Labour Tribunal which include:

"1. A claim for money which arises from:

(a) the breach of a term, whether express or implied or (if relevant) arising by force of section 10(1) of the Minimum Wage Ordinance (Cap 608), of a contract of employment, whether for performance in Hong Kong or under a contract to which the Contracts for Employment Outside Hong Kong Ordinance (Cap 78) applies;

(b) the failure of a person to comply with the provisions of the Employment Ordinance (Cap 57), the Minimum Wage Ordinance (Cap 608) or the Apprenticeship Ordinance (Cap 47);

other than a claim specified in the Schedule to the Minor Employment Claims Adjudication Board Ordinance (Cap 453)."

The Defendant's fall back position was that three of the eight claims in the judgment arose from a failure to comply with the provisions of the Employment Ordinance in that the claims were for outstanding salary and accrued annual leave. Therefore, the Labour Tribunal had exclusive jurisdiction to hear the claim under section 1(b) of the Schedule.

As a third alternative argument, the Defendant argued that the Plaintiff...

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