YEE LEE SEA-LAND FORWARDING CO LTD v. YIP LING TO AND OTHERS

HCLA000013/1984

Labour Tribunal Appeal No. 13 of 1984

IN THE HIGH COURT OF JUSTICE

BETWEEN

YEE LEE SEA-LAND FORWARDING COMPANY LIMITED

Applicant/Defendant

and

YIP LING TO
LEUNG SIU BOR and 9 others Respondents/Claimants

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Coram: Hon. Mantell J.

Date of Hearing: 6th June, 1984.

Date of Delivery of Decision: 6th June,1984.

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DECISION

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1. This is an application for leave to appeal by the Yee Lee Company, wrongly described in the application for leave as the Yee LeeSea-Land Forwarding Company Limited, against a decision of the Presiding Officer given on 13th April this year by which he awardedseverance pay in a substantial sum to eleven claimants. He found after what I consider to be a most patient and careful hearing ofthe evidence that all eleven claimants had been employed by the applicant and that they had been employed continuously for a periodwhich resulted in his calculation of the severance pay. Originally, one of the grounds relied upon on the application for leave wasthat the Presiding Officer was wrong in law in finding that the claimants were employees of the defendant. That has been very wiselyabandoned as a ground by the applicant, I think, because the evidence which the Presiding Officer had come from the claimants themselvesand was never in terms contradicted, the finding of fact cannot really be attached. It was not contradicted because the one witnesswho might have been able to do so never attended even though he was given many opportunities to appear and so, as I say, that groundis abandoned. The applicant, however seeks to pursue two matters: one which is strictly speaking a matter for appeal and the otherwhich, if there were found to be substance in it, might lead a court hearing the appeal to remit the matter to the tribunal for reassessment.The matter of law, strictly so called, depends upon what meaning is to be given to the word “continuous” within the Ordinance. Mr.Griffith says there is some question as to where the burden of proof lies in relation to the question of continuous employment andmore than that, as to whether or not casual or daily rate employment can be continuous employment for the purposes of the Ordinance.Now, it is not for me to express any view as to the merit of that submission nor have I formed one. But it does seem to me that thatis a matter which is arguable and ought to be decided on appeal and that it does arise as a result of this hearing. Although, infairness to the Presiding Officer, I ought to say the matter was never canvassed before him nor in the light of the absence of anyprevious authority, do I think that any criticism could be made of the Presiding Officer for not directing his mind to those twoquestions; and it may very well be , of course, that when the merits of this appeal are heard and decided the Presiding Officer’sdecision will be entirely vindicated. Once again, I express no view about that nor can I not having heard argument on either side.

2. So, I shall give leave to appeal on that ground and I shall give leave for the appellant to raise at the hearing of the appeal thequestion of remission to the tribunal for reassessment of amount. I think it is desirable that the matter should remain with me not,I hope, through any lack of humility on my part but simply because I have,been given the background of this matter and I have readthe papers.

(C.B.K. Mantell)

Judge of the High Count

Representation:

Rodney Griffith instructed by Hon & Co. for Applicant.

Respondents in person except C7 – Wong Chun Ming.