20 October 2015
In "Labour Tribunal Given Expanded Power to Order Security for Payment", we wrote about the introduction of a new section 30 of the Labour Tribunal Ordinance (the "Ordinance") which confers power on the Tribunal to order a party to provide security for the payment of an award that has been or may be made.
The Labour Tribunal exercised such power under the new section 30 in the recent case of Lam Che Fu v. The Chinese Kitchen (Sai Kung) Ltd HCLA 16/2015. The employee claimed overtime pay from his employer. During the hearing, the Tribunal ordered the employee to pay a sum of HK$14,452 into the Tribunal as security for payment of an award (which was to be paid within 7 days).
The employee then applied to the High Court for leave to appeal against this order on the ground that there was an error of law and the Tribunal had wrongly made the order for the security payment.
In rejecting the leave application, the High Court confirmed that it was "just and expedient" for the Tribunal to order security payment in the circumstances where:
- the employee failed to substantiate his claim for overtime pay by providing evidence of his claim for wages in arrears and had not raised his complaint to his employer prior to his cessation of employment; and
- the employee's case was inconsistent and not credible.
In short, the employee did not have a strong claim.
Employers are not entirely helpless against unmeritorious claims made against them in the Labour Tribunal. In appropriate circumstances, (if not raised by the Presiding Officer) an employer should consider asking for a security payment under section 30 of the Ordinance.