Hong Kong Labour Tribunal Presiding Officer's Statutory Duty to Investigate Includes Calling Witnesses

Proceedings in the Hong Kong Labour Tribunal are inquisitorial in nature, differing from the adversarial approach taken in court proceedings.

In Poon Shing Hin v. Li Wai Chun Transportation Co Ltd [2024] HKCFI 2564, the Hong Kong Court of First Instance set aside a Labour Tribunal award because the Deputy Presiding Officer (DPO) erred in law by failing to discharge his statutory duty to investigate the claimant employee's claim.

Background

The claimant was an office worker for the defendant company. The only dispute between them was whether there existed an oral agreement between the claimant and a Madam Chang (who was the company's shareholder and director at the relevant time) which allegedly provided for payment of certain allowances and conditional bonuses to the claimant at the end of his employment (Oral Agreement). 

When the claimant resigned, the company did not make those payments and so he sued the company in the Labour Tribunal.

Before the trial, the claimant applied for Madam Chang to testify at the trial remotely by video link from the UK, due to her work commitments. The DPO indicated that this reason was not one that would usually be accepted by the court. The claimant then withdrew the application and Madam Chang did not testify at trial. 

The DPO found in the claimant's favour. The company appealed to the Court of First Instance. 

The Law

In determining the appeal, the Court of First Instance reiterated the following legal principles:-

1. Labour Tribunal proceedings are inquisitorial (and not adversarial) in nature. A Presiding Officer is under a statutory duty to investigate all matters relevant to the claim on their own volition (whether or not they have been raised by a party); direct the parties to the right issues; and seek the relevant material and evidence from them. 
2. A Presiding Officer errs in law if they fail to discharge such statutory duty properly. An appellate court should intervene if the Presiding Officer's lack of investigation gives rise to injustice, in that a fair and proper determination of the claim could not be attained. 
3. A Presiding Officer may review the award or order given by them – and on such review may re-open and re-hear the claim in full or in part and may call or hear fresh evidence.

Decision

The Court of First Instance ultimately allowed the company's appeal finding that the DPO had erred in law. 

1. Failure to Call a Key Witness to Testify

With regard to the Oral Agreement (which was not evidenced by any contemporaneous document), the court identified that there were two obvious and material discrepancies between the factual accounts given by the claimant, Madam Chang and a Madam Lau (who was the claimant's colleague at the company). 

However, the DPO did not receive and test Madam Chang's evidence (by way of video link) at trial and failed to resolve the major discrepancies.

In the court's view, given the DPO's statutory duty to investigate, he ought to have allowed Madam Chang to testify by video link, since it was important that her evidence was tested before determining whether the Oral Agreement indeed existed, as alleged by the claimant.

For this reason, the court held that the DPO's finding that the Oral Agreement existed was reached without conducting a full and proper investigation and cannot stand.

2. Failure to Receive New Fresh Evidence in Reviewing the Decision

At trial, the DPO prevented the company's representative from questioning Madam Lau as to whether she had reached a similar oral agreement with Madam Chang, on the basis that it was irrelevant to assessing the claimant's credibility.

However, it later transpired that Ms Lau had also brought a claim against a related entity of the company in the Labour Tribunal alleging that she had an oral agreement with Madam Chang around her remuneration. 

In light of this new factual matter, following delivery of the award by the Labour Tribunal, the company invited the DPO (as part of his review of the award) to reconsider his assessment and finding as to Madam Lau's credibility and reliability as a witness. The DPO refused to exercise his discretion.

The court held that the DPO was clearly entitled to receive the fresh evidence in reviewing his decision, which had a bearing on the assessment of Madam Lau's impartiality as a witness (and in turn, her credibility and reliability). The DPO's failure to receive the relevant fresh evidence regarding the separate claim brought by Madam Lau was found to be an error in law.

Key Takeaways

This case illustrates that a Presiding Officer's failure to discharge their statutory duty to investigate by calling a key witness or witnesses to testify on important issues in dispute could give rise to a ground of appeal if the lack of investigation gave rise to injustice, in that a fair and proper determination of the claim could not be attained.

A Presiding Officer's duty to investigate is not absolute.

1. The duty to investigate is limited to the duty to investigate matters which a Presiding Officer may consider relevant. However, this duty cannot replace a party's right to cross-examine witnesses called by others, nor does it empower the Presiding Officer to compel a party to give evidence against their own wishes.
2. If a Presiding Officer considers that there are relevant matters which a party has not explored, the Presiding Officer is obliged to look into it and should invite the parties to comment and guide (and if necessary, direct) them to produce further evidence or documents.
3. Ultimately, a Presiding Officer is obliged to remain neutral and impartial in carrying out their duty to investigate and not play the role as an advocate for one litigant.

Employers are reminded that for any litigation in the Labour Tribunal, they continue to bear primary responsibility in the preparation and procurement of evidence in support of their case. It is also important for employers to set out all the material facts and arguments in written submissions, their defence and witness statements.

Judgment is available here.