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Woo Kwok Ping v The Incorporated Management Committee Of Tsuen Wan Trade Association Primary School

Judgment Cited authorities 3 Cited in 1 Precedent Map Related
Vincent
Judgment Date14 January 2020
Neutral Citation[2020] HKCFI 186
Judgement NumberHCA1523/2013
Citation[2020] 1 HKLRD 717
Year2020
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA1523A/2013 WOO KWOK PING v. THE INCORPORATED MANAGEMENT COMMITTEE OF TSUEN WAN TRADE ASSOCIATION PRIMARY SCHOOL

HCA 1523/2013

[2020] HKCFI 186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1523 OF 2013

____________

BETWEEN
WOO KWOK PING Plaintiff

and
THE INCORPORATED MANAGEMENT COMMITTEE OF TSUEN WAN TRADE ASSOCIATION PRIMARY SCHOOL Defendant

____________

Before: Hon Au-Yeung J in Chambers
Date of Hearing: 28 November 2019
Date of Decision: 14 January 2020

_____________

D E C I S I O N

_____________

A. INTRODUCTION

1. The Defendant (“IMC”) ran and still runs the subject aided primary school (“the School”) which received subvention from the government. The Plaintiff was employed as a principal of the School until her dismissal.

2. For about a year, IMC had issued reminders and warnings to the Plaintiff for misconduct until she was summarily dismissed on 27 July 2013. But for the termination, the Plaintiff would have been due for retirement about a year later, ie on 31 August 2014.

3. The Plaintiff took the view that IMC had failed to follow the statutory procedure for termination of a principal. On 20 August 2013, the Plaintiff commenced this action.

4. The jurisdiction issue was first raised by a Master at the 1st case management conference (“CMC”) on 3 October 2018.

5. On 29 March 2019, IMC issued a striking-out application against the amended statement of claim for want of jurisdiction (“the Striking-Out Application”). One working day before the hearing, the Plaintiff sought leave to re-amend her statement of claim. IMC withdrew the Striking-Out Application after considering the re-amendments.

6. Master SP Yip awarded costs to IMC, summarily assessed at $172,000 to be paid to IMC forthwith, on the basis that the Striking-Out Application would have succeeded but was only withdrawn due to the late amendment (“the Costs Order”).

7. At the 3rd CMC on 29 July 2019, Master Ho disagreed with the outcome of the Striking-Out Application, and directed the parties to argue on the jurisdiction issue before the listing judge.

8. On 5 August 2019, the Plaintiff issued a notice of appeal against the Costs Order.

9. There are thus 2 matters before me:

(1) Whether this claim falls within the exclusive jurisdiction of the Labour Tribunal (“the jurisdiction issue”); and

(2) The Plaintiff’s appeal against the Costs Order.

B. BACKGROUND FACTS

10. The Plaintiff’s employment as a principal was pursuant to an employment contract (“the Contract”), which incorporated by reference the Education Ordinance (Cap 279) and its subsidiary regulations, 2 Codes and a Guide.

11. On 20 August 2013, the Plaintiff commenced the present action for wrongful dismissal. The endorsement of claim was confined to the following causes:

(1) That IMC failed to comply with sections 55-57 of the Education Ordinance by dismissing her before the Permanent Secretary for Education (“the Permanent Secretary”) had withdrawn approval of the Plaintiff or given approval for another principal. This amounted to breach of the Contract.

(2) That the Plaintiff’s misconduct did not satisfy the requisite standard of seriousness to warrant dismissal under the 2 Codes. IMC had also failed to follow the procedures prescribed under the 2 Codes in dismissing the Plaintiff. These amounted to breaches of the Contract which incorporated the 2 Codes and breach of statutory duty.

(3) That the Plaintiff’s misconduct did not satisfy any of the grounds for dismissal under section 9 of the Employment Ordinance, Cap 57. This amounted to breach of the Employment Ordinance.

12. The Plaintiff prayed for:

(1) a declaration that the summary dismissal was unlawful and wrongful and of no effect (“1st prayer”);

(2) an injunction to restrain IMC from purporting to dismiss her from the post of principal without having obtained the approval from the Permanent Secretary or from acting upon such dismissal (“2nd prayer”);

(3) an injunction to compel IMC to exhaust the procedure under the 2 Codes before any purported action against the Plaintiff (“3rd prayer”); and

(4) damages to be assessed including loss of salary and provident fund (“4th prayer”).

13. In the re-amended statement of claim dated 22 July 2019, the Plaintiff further labelled and pleaded her claims under sections 55-57 of the Education Ordinance as breach of statutory duty and breach of common duty of care.

14. In the meantime, by an order dated 3 October 2013, Chung J granted an injunction to restrain IMC from acting on the dismissal before the Permanent Secretary had withdrawn his approval of the Plaintiff or approved another principal for the School.

15. Subsequently, on 16 October 2013 and 28 January 2014 respectively, the Permanent Secretary approved 2 persons as acting principals. On 29 December 2014, the Permanent Secretary also confirmed the appointment of one of them as principal.

16. Accordingly, the injunctions sought under the 2nd and 3rd prayers had become otiose. The entire claim is now monetary in nature.

C. LEGAL PRINCIPLES GOVERNING JURISDICTION OF THE LABOUR TRIBUNAL

17. The Labour Tribunal has exclusive jurisdiction over a claim for a sum of money, whether liquidated or unliquidated arising from, amongst others, (a) the breach of a term of a contract of employment, and (b) the failure to comply with the provisions of the Employment Ordinance.

18. Notwithstanding that, any claim in respect of a cause of action founded in tort, whether arising from a breach of contract or a breach of a duty imposed by a rule of common law or by any enactment falls outside the Labour Tribunal’s jurisdiction: Labour Tribunal Ordinance, Cap 25 (“LTO”) sections 7(1)-(2); §§1 and 3 to the Schedule.

19. In deciding the jurisdiction issue, the Court should look at both the pleaded causes of action and reliefs sought.

20. Mixed claims founded both in employment contracts and torts are excluded from the Labour Tribunal: Uferahal Limited & anor v Hansen Larry Douglas [2015] 2 HKLRD 683 at §20, Au-Yeung J.

21. Similarly, a mixed claim for monetary and non-monetary reliefs, even though based on breach of contract or of the Employment Ordinance, fall outside the jurisdiction of the Labour Tribunal: Gain Hill (Hong Kong) Ltd v Li Kin Yip [2006] 4 HKLRD 186, §§27-28, Sakhrani J.

22. The proper approach of the Court is to look at the substance of the dispute and not the labels put on the pleadings. The Court should assess whether the other claims brought by the plaintiff are merely for “window dressing”, such that the real claim left is one that falls within the Labour Tribunal’s exclusive jurisdiction: Ho Chee Sing James v Secretary for Justice [2015] 4 HKLRD 311, §§32-34, DHCJ Saunders.

23. A distinction should be drawn between jurisdiction and forum for trial. Whether a claim falls within the jurisdiction of the Labour Tribunal is determined at the time the claim is filed. On the other hand, the forum for trial is determined at the time the issues are crystallized or when there are changes in circumstances after filing of the writ.

D. THE JURISDICTION ISSUE

D1. Pleaded causes

24. The writ relies on breach of employment contract (which of necessity includes breach of the Employment Ordinance and all breaches of the statutes incorporated into the Contract).

25. However, an indispensable part of the Plaintiff’s case (which would increase the damages recoverable) turns on the applicability of sections 55-57 of the Education Ordinance. Section 55 provides that principal of a school shall hold office until (of relevance) the Permanent Secretary withdraws his approval of the principal under section 56 or approves another teacher of the school as the principal under section 57(2).

26. Section 56 provides that the Permanent Secretary may withdraw his approval of the principal of a school if it appears to the Permanent Secretary that the principal—

“(a) is no longer a fit and proper person to be the principal;

(aa) in the case of a school providing nursery or kindergarten education, is not appropriately qualified to be the principal;

(b) is not performing the duties of the principal satisfactorily;

(c) has ceased to perform the duties of the principal; or

(d) is no longer acceptable as such to the majority of the managers of the...

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1 cases
  • Singh Baljit v Forward & Co. Lawyers
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 25 August 2022
    ...decision in the previous case of Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School [2020] 1 HKLRD 717 for the principles for dealing with a challenge to an action on the ground that the claims fall within the exclusive jurisdiction of the La......

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