The ELA is proud to welcome our newest member firms: Potter, Anderson & Corroon in Delaware and Morais Leitão in Portugal! 
The ELA is proud to welcome our newest member firms: Potter, Anderson & Corroon in Delaware and Morais Leitão in Portugal! 

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Ma Ngai Cheung v Cobow Contracting & Engineering Company Limited – Labour Tribunal’s jurisdiction in cross-border employment

By:

Helen Liao

Submitted by Firm:
Deacons
Firm Contacts:
Cynthia Chung
Article Type:
Legal Update
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The Labour Tribunal offers employers and employees a quick and cost effective forum to resolve their conflicts without going through formal court procedures. In the Ma Ngai Cheung case, the employee, who mainly performed his employment outside of Hong Kong (although having signed his employment contract in Hong Kong), made a claim to the District Court for compensation of accrued rest days and reimbursement of various expenses. The employer applied to strike out the employee’s claim, arguing that the Labour Tribunal should have exclusive jurisdiction over the claim. The employee argued that as the employment took place outside of Hong Kong (even though the contract is governed by Hong Kong law), and the compensation issue did not arise from violation of the Employment Ordinance or employment contract (as neither the Employment Ordinance nor the employment contract provided that payment should be made in lieu of rest days), the Labour Tribunal did not have jurisdiction. Having examined the facts of the case, the Court considered that due to the complexity of the case, it was not satisfied that the employee’s claim is a plain and obvious one that can be struck out summarily. The employer’s application was therefore dismissed. Take away points are as follows:-

1. The Labour Tribunal should generally have jurisdiction over employment disputes, unless the case involves complexity of facts or laws (e.g. foreign laws involved) or mixed claims. Employers shall seek for legal advice on pleaded causes of actions, as the Court looks at the substance of the dispute rather than labels; and

2. Jurisdictional issues should be dealt with at an early stage before substantial time and costs have been incurred.

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