The Background
The Labour Tribunal is designed to provide a quick, informal and inexpensive way of resolving claims between employees and employers, without the use of lawyers. To accomplish this, the tribunal is set up to act as conciliator, investigator, and ultimately, the adjudicator (judge). This article focuses on explaining the tribunal’s power and indeed, its duty, to investigate claims.
The claimant at the Labour Tribunal has the primary responsibility for the preparation and procurement of evidence in support of his or her claims. Sometimes, however, a claimant cannot prove or quantify his or her claim without reference to documents that may exist only in the hands of his or her employer. The Labour Tribunal may gather evidence through interviews and requests for documents as part of its own investigation.
The Case
Recently, an appeal of a Labour Tribunal decision to the Hong Kong courts resulted in a court decision noteworthy for the judge’s discussion as to the nature and extent of investigation the tribunal should have undertaken in that case.
In this case, an employee terminated from his position brought a claim at the Labour Tribunal alleging that he was not paid all of the commissions due to him upon his termination. The dispute centred on sales that were made to accounts that he contended were due to introductions he had made.
Believing that his claim had not been properly handled by the Labour Tribunal, the employee appealed the award to the Hong Kong courts. Among other complaints, the claimant argued that the Labour Tribunal failed to properly investigate his claim by not ordering his former employer to disclose certain account documents.
The court agreed, overturning the Labour Tribunal decision and, among other things, remitting the claim to the Labour Tribunal for retrial by another presiding officer. The new presiding officer will now need to decide how to further investigate the claim.
The court held that presiding officers assigned to cases at the Labour Tribunal have a “positive statutory duty” to investigate the claims assigned to them as part of the “inquisitorial” role or function of the Labour Tribunal. The presiding officers have various tools they can use to investigate, including requesting a party to turn over additional documents.
In the present case, the court found that the presiding officer should have requested additional evidence from the defendant in order to determine whether there existed documentary support for matters material to the claimant’s complaint.
In particular, the court ruled that the presiding officer should have requested invoices and sales records relevant to assessing certain sales claimed by the claimant and in turn, whether commissions on these sales were due and payable to the claimant.
The Conclusion
The Labour Tribunal is designed to be a relatively quick and inexpensive mechanism for resolving certain employment disputes. As this case illustrates, however, Labour Tribunal officers have the power to conduct a potentially extensive investigation of the facts. Indeed, this case makes clear that Labour Tribunal officers have a duty to do so in appropriate situations. Here, the dispute could not be readily resolved by reference to the parties’ contract, thereby necessitating greater inquiry.
Parties are well advised to gather and carefully evaluate the documentary record when a dispute arises. Doing so will put a party in a better position to evaluate its options and in turn comply with requests from the Labour Tribunal.
Those seeking to bring claims over compensation that is tied to performance, as existed in this case, would be well served by studying the conduct of the claimant in this case. While the Labour Tribunal officer was admonished for not doing enough in this case, the claimant’s actions before the Labour Tribunal laid the groundwork for a successful appeal.
This article appeared in the Classified Post print edition as Labour Tribunal must fulfil its 'inquisitorial' role.
