Think Twice Before Filing An Employment Claim Directly To The High Court

Published date23 January 2024
Subject MatterEmployment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Employment Litigation/ Tribunals, Libel & Defamation
Law FirmIus Laboris
AuthorJezamine Fewins (Lewis Silkin) and Carly Fan (Lewis Silkin)

Under Hong Kong's court rules, the Labour Tribunal has exclusive jurisdiction over claims for money damages arising from an employment contract or the Employment Ordinance. A recent decision highlights the pitfalls in bringing employment-related claims directly to the High Court.

Case background

The Plaintiff was a former employee of Hannover Rück SE, the Defendant. The Plaintiff brought court proceedings before the High Court, claiming that the employer was in breach of its statutory duty pursuant to the Employment Ordinance when it terminated his employment. He also claimed that there had been a breach of the contractual obligations owed to the Plaintiff, including the employer's internal code of conduct, and that he suffered damage to his reputation because of his allegedly unreasonable dismissal, causing him to suffer a loss of income and benefits.

The decisions

The employer applied to strike out the Plaintiff's claim on the basis that the Labour Tribunal had exclusive jurisdiction over a claim of money arising from the breach of a term of the employment contract. The employer argued that there was no claim founded in tort, nor was this a mixed claim founded in both tort and contract.

The Plaintiff used counsel to draft his pleadings and sought to improve the pleadings by claiming that there were tortious elements. The Plaintiff argued that there were references therein to defamation as a cause of action. The Plaintiff submitted that even if there was no specific reference to a 'defamatory statement' or 'libel' in the pleadings, there were nonetheless references to statements that were defamatory in nature. The Plaintiff argued that his pleadings contained sufficient references to a tortious claim which caused the case to fall outside of the Labour Tribunal's exclusive jurisdiction.

The Master granted the strike out application, noting that as counsel had drafted the pleadings, if there was a tortious claim, it should have been clearly set out. The Plaintiff then applied to appeal the strike-out decision to the High Court. Upon review of the pleadings and the Plaintiff's application, the Court was similarly not convinced that he had pleaded any tortious claim.

The Plaintiff's position in the appeal was that the pleadings contained a claim for the torts of defamation and malfeasance. The Plaintiff's counsel at the appeal hearing also raised the question on whether the pleadings could be amended to properly plead a claim in tort. The Plaintiff's primary...

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