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1 April 2020 | by LexisNexis Hong Kong
In Woo Kwok Ping v. The Incorporated Management Committee of Tsuen Wan Trade Association Primary School  HKCU 201, the court illustrated the legal principles in deciding what claims fell within and outside the jurisdiction of the Labour Tribunal. The court confirmed that tort and mixed claims are excluded from the jurisdiction of the Labour Tribunal.
The Incorporated Management Committee (the “IMC”) of Tsuen Wan Trade Association Primary School (the “School”) was the defendant that ran the subject aided School by receiving subvention from the government. The plaintiff was employed as the principal of the School under an employment contract (the “Contract”) that was incorporated pursuant to the Education Ordinance (Cap 279) (the “EDO”) and its subsidiary regulations: two Codes and one Guide. The School summarily dismissed her on 27 July 2013 for misconduct after issuing reminders and warnings. The plaintiff claimed that IMC failed to follow the statutory procedure requirements for terminating a principal’s employment regarding sections 55 to 57 of the EDO.
The plaintiff’s cause of action first began in 2013 for wrongful dismissal concerning breach of the Contract, breach of the Employment Ordinance (Cap 57) (the “EO”) and all statutory provisions that were incorporated into the Contract.
In addition, she sought a declaration that the summary dismissal was unlawful and wrongful and of no effect (“1st Prayer”), an injunction to restrain IMC from dismissing her without an approval from Permanent Secretary for Education (the “Permanent Secretary”) or from acting upon such dismissal (“2nd Prayer”), an injunction to compel the IMC to exhaust the procedures under the two Codes before taking any action against her (“3rd Prayer”), and damages to be assessed which includes loss of salary and provident fund (“4th Prayer”).
Later in October 2018 was the first time that the jurisdiction issue was raised despite the commencement of action was back in 2013.
The court in the present case would only focus on determining the jurisdiction issue. The court had to decide whether the Labour Tribunal had exclusive jurisdiction over the claim. It was concluded that the Labour Tribunal did not have jurisdiction. In deciding the case, the court confirmed the following:
- The Labour Tribunal has exclusive jurisdiction over a claim for a sum of money, whether liquidated or unliquidated, arising from the breach of a term of a contract of employment and the failure to comply with the EO.
- The Labour Tribunal does not have jurisdiction for any claim involving a cause of action founded in tort arising from a breach of contract or a breach of a duty under a common law rule or by any enactment. Mixed claims founded both in employment contracts and torts are excluded from the jurisdiction of the Labour Tribunal. Mixed claims for monetary and non-monetary reliefs, even though based on breach of contract or of the EO, would not fall within the jurisdiction of the Labour Tribunal.
- The court looks at the substance of the dispute, not the labels put on the pleadings. The court should determine whether the other claims brought by the plaintiff are merely for “window dressing” such that the plaintiff’s actual claim left falls within the exclusive jurisdiction of the Labour Tribunal.
- The court distinguished jurisdiction and forum for trial. Whether a claim falls within the jurisdiction of the Labour Tribunal is decided at the time the claim is filed. Contrarily, the forum of trial is decided at the time the issues are crystallized or when there are changes in circumstances after filing the writ.
The Pleaded Cause of Action
The plaintiff’s pleaded cause of action concerned the breach of the Contract, including breach of the EO and all statutory provisions that were incorporated into the Contract. A crucial part in her claim turned on the applicability of sections 55 to 57 of the EDO.
Section 55 provides that the principal should hold office until the event stated in section 56 or section 57(2) of the EDO happens. In operation, this would mean that if the plaintiff did not lose her approval from the Permanent Secretary, the plaintiff was entitled to hold office as principal until the Permanent Secretary determined otherwise. The IMC solely did not have the independent power to remove her from office. It was concluded that her claim was a breach of duty under an enactment, which amounted to a tort claim. It was also a mixed claim excluded from the jurisdiction of the Labour Tribunal at the time the writ was filed.
The Reliefs Sought
The court treated her 1st Prayer as a finding of fact that it had to determine rather than a relief.
The 2nd and 3rd Prayers sought injunctions. Upon the IMC’s failure to follow the termination requirements under sections 55 to 57 of the EDO, there were at least two statutory remedies available to the principal. One remedy would be the reinstatement of her position as principal under section 32N of the EO, and the other remedy would be the damages to be assessed as mentioned in her 4th Prayer.
Nonetheless, it was held that the tribunal does not have the jurisdiction to grant interim relief or injunctions because those powers laid within the High Court and the District Court. Instead, the Labour Tribunal could grant reinstatement to her as a final relief. In fact, she had already obtained an interim injunction in previous proceedings similar to that claimed in the 2nd Prayer. The interim order was granted because damages would not be an adequate remedy for depriving the security of tenure.
As to the 4th Prayer, the principal was likely to recover the same amount whether it was a statutory claim or contract claim.
Overall, the court found both the causes of action and reliefs sought showed that it was a mixed claim for monetary and non-monetary reliefs at the time the writ was filed. The High Court had jurisdiction but not the Labour Tribunal.
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