UK: 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 should be required to commence separate actions in the Labour Tribunal and the High Court to resolve her claims.

The Defendant sought an order that the Master should permanently stay the proceedings and require the Plaintiff to restart the case at the Labour Tribunal. The Defendant relied on the case of Tsui Chung Fai v Kwok's Fashion Co Ltd unreported HCLA 154 of 2003, 17 August 2004 wherein the Judge presiding over that case stated that a claim for payment of wages, end of year payment and annual leave payment are all benefits protected by the Employment Ordinance. In that case although the employee performed his contract in Shanghai, the Judge ruled that the Tribunal had jurisdiction to deal with his claim which fell within section 1(b) of the Schedule to the Ordinance.

The Plaintiff's solicitors submitted that as the Plaintiff had performed her employment contract out of Hong Kong, section 1(a) of the Schedule did not apply. In respect of the Plaintiff's claims for wages and annual leave payments, the Defendant had already paid part of the outstanding amounts prior to the hearing and before judgment was entered.

The Plaintiff's solicitors further contended that the High Court had jurisdiction to consider all of the Plaintiff's claims collectively and pointed out under the Civil Justice Reforms one of the underlying objectives of the Rules of the High Court was to ensure that a case was dealt with as expeditiously as is reasonably practical. The Plaintiff was a resident of the United States and had returned home after her employment with the Defendant ended. It was submitted that it would be impractical and unreasonable to expect the Plaintiff to incur the costs of flying back to Hong Kong to attend hearings before the Labour Tribunal and at the same time litigate the remainder of her claims through the High Court whilst she looked for a new job.

Master Kwang agreed with the Plaintiff's arguments and stated that it was necessary to be pragmatic in such circumstances. The Master held that where some of an employee's claims fell within the exclusive jurisdiction of the Labour Tribunal and other claims fell within the jurisdiction of a competent court, that court had jurisdiction to adjudicate on all of the claims at once. The Plaintiff's case was distinguished from the Tsui Chung Fai case as that case dealt only with claims that all fell within the Labour Tribunal's exclusive jurisdiction. The judgment of the Plaintiff included claims for a signing bonus, a performance bonus, reimbursement of monies deducted for the payment of tax and payment as compensation for a non-compete clause.

The Master's ruling is in our view a good decision and demonstrates that the Hong Kong courts are willing to hear mixed jurisdictional employment claims without the need for the claimant to first refer the matter to the Labour Tribunal.

Jezamine Fewins of Clyde & Co represented the Plaintiff at the court hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions