The employment team at Gall provide a guide to the conduct of proceedings before the Labour Tribunal
The Labour Tribunal is intended to be a quick and informal venue for hearing disputes between an employer and employee. The Labour Tribunal has exclusive jurisdiction to hear any claim for a sum of money exceeding HK$8,000 that arises from: –
- A contract of employment or contract of apprenticeship; or
- Failure to comply with the Employment Ordinance (cap 57), the Minimum Wage Ordinance (Cap 608) or the Apprenticeship Ordinance (Cap 47).
Practice and procedure
The parties are encouraged to attempt conciliation before bringing a claim to the Labour Tribunal. If conciliation does not successfully resolve the dispute and a decision has been made to commence formal proceedings, the first step is to make an appointment with a Tribunal Officer to file the claim.
On the appointment date, the Claimant will need to personally attend the Labour Tribunal. The Claimant will need to bring his or her Hong Kong Identity Card and the referral number of the Labour Department along with (a) if the Defendant is a limited company, the Defendant's address registered office or (b) where the Defendant is a sole proprietorship or partnership business, the Defendant's principle place of business and/or the residential address of the proprietor or partners.
At the appointment, the Tribunal Officer will interview the Claimant to obtain statements, supporting documents and any other relevant information. The Tribunal Officer will also explore whether there is any appetite for settlement.
A nominal filing fee is payable to instigate proceedings. This is based on the amount being claimed, ranging from HK$20 for claims which are HK$2,000 or less, up to a maximum fee of HK$50 for claims exceeding HK$10,000.
After the Claimant has filed the claim, the Labour Tribunal Registry will issue a Notice of Place and Day Fixed for Hearing. The hearing date will be fixed between 10 and 30 days from the filing the claim. The Labour Tribunal Registry will then serve details of the claim on Defendant.
The Tribunal Officer allocated to the case will then investigate the claim. The Tribunal Officer has statutory powers of investigation and any party who without reasonable excuse refuses to comply with a lawful request of the Tribunal Officer to produce any evidence or who wilfully obstructs a Tribunal Officer carrying out his statutory duty will be guilty of a criminal offence.
The Tribunal Officer will then invite a representative of the Defendant to attend an interview. Similar to the interview with the Claimant, the Tribunal Officer will then obtain statements from the Defendant, supporting documents and any other relevant information as well as discuss whether there is any possibility of settlement.
If there is no settlement, the parties are required attend the Labour Tribunal for the call over hearing. Both parties must attend the call over hearing or risk having, if the Claimant is absence the claim being struck out, or in the case of the Defendant judgment may be entered in its absence if the Presiding Officer determines the facts to the claim are sufficiently established.
At the call over hearing, the Presiding Officer will explain the issues and the relevant laws in an attempt to help the parties settle amicably. If the parties agree to explore the possibility of settlement, the Presiding Officer may direct a Settlement Tribunal Officer to assist the parties in negotiations.
If settlement is not possible, the Presiding Officer may adjourn the claim and either list the matter for a mention (i.e. a short hearing to assess whether the parties are ready for trial and/or give directions for the furtherance of the case) or list the matter for trial.
At trial, the Presiding Officer will:-
- hear each party’s case;
- allow the Claimant and Defendant to question each other and witnesses;
- order the parties to provide further evidence or to call further witnesses and adjourn the hearing to a later date if necessary;
- deliver judgment at the end of the hearing or fix a date to deliver judgment.
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.