Hong Kong: How far does the Labour Tribunal’s duty to investigate extend?

Two recent Court of First Instance decisions in Hong Kong – Fung Tsun Tong v A Link Network (HK) Ltd (Fung Tsun Tong) and Vermeerbergen Peter Alfred v Swisstribe Ltd (Vermeerbergen) – explored the nature and extent of the Hong Kong Labour Tribunal's inquisitorial role in employment disputes.

In doing so, the court made it clear that while a party may have grounds to appeal a Labour Tribunal decision if the presiding officer fails to investigate relevant matters, the duty to investigate is not absolute and the parties remain under an obligation to prove their case to the civil standard.

Legislative framework

The Labour Tribunal is intended to offer a quick, informal and inexpensive way of settling monetary disputes between employers and employees. Consistent with this ideal, section 20 of the Labour Tribunal Ordinance:

1. provides that Labour Tribunal hearings are to be conducted in an informal matter; and
2. gives the presiding officer broad powers to subpoena witnesses, order the production of certain documents and put to any party or witness such questions as it sees fit.

Section 20 also provides that the presiding officer shall investigate any matter which he may consider relevant to the claim, whether or not it has been raised by a party.

This so-called "duty to investigate" was the subject of applications in both Fung Tsun Tong and Vermeerbergen. In both cases, it was held that the presiding officer had failed to discharge his positive statutory duty to investigate such relevant matters and the cases were remitted back to the Labour Tribunal for re-trial by another presiding officer.

The cases

Fung Tsun Tong concerned an application for leave to appeal the Labour Tribunal's order in favour of a driver who had claimed payment of certain employment benefits when his contract was terminated. The defendant had argued that there was no such entitlement as the worker was a contractor and that, in any event, the defendant was entitled to terminate the contract immediately on the basis that he had used illegal fuel instead of the fuel cards issued to him.

The Court held that by failing to order the parties to disclose certain account documents, the presiding officer was not able to investigate properly the nature of the relationship between the parties and whether the termination was justified.

In Vermeerbergen, a former employee sought to recover certain commission payments which he claimed were due to him on termination of his employment for sales to clients resulting from introductions he made. Being unable to quantify the amount of his claim without accounts and records that were in the possession of his former employer, he made a number of requests before and during the proceedings for production of those records. The records were not provided, and the presiding officer dismissed the employee's claim on the basis that it was speculative and unsubstantiated.

In that case, the court held that by failing to order the production of documents which were necessary to achieve a fair outcome and to which the claimant otherwise had no access, the presiding officer had failed to discharge his statutory duty to investigate.

Key lessons

Although these cases highlight the inquisitorial role of the Labour Tribunal, and focus on the duty to investigate, the judgments make it clear that it is not necessary for the presiding officer to investigate every point raised.

In Fung Tsun Tong, the Court stated, "it is obvious that not every failure to investigate a relevant matter will give rise to an appeal for a failure to discharge a statutory duty…. The relevant matter forming the subject matter of the complaint must not only be relevant, but be of such a nature that the lack of investigation will give rise to injustice in that a fair and proper determination of the claim cannot be attained."

In Vermeerbergen, the Court held that while it was, "the duty of the [presiding officer] to investigate whether there was crucial documentary support for matters that went to the materiality of the claimant's complaint", in seeking discovery of documents, the applicant still had the onus of satisfying the presiding officer that those documents exist, are relevant to determining a matter in dispute and are in the possession, custody or power of the other party.

It is clear from the above cases that the presiding officer has some discretion as to what should be investigated in order to achieve justice between the parties and that the duty to investigate is not absolute. Ultimately, each party still bears the burden of articulating their complaint and proving their claims.