HCLA 7/2024

[2024] HKCFI 2032

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 7 OF 2024

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 666 OF 2023)

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D E C I S I O N

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Background

1. This is an application made by the Claimant (“ Employee ”) for leave to appeal on a question of law against the Decision of the Labour Tribunal (“ Tribunal ”) of 5 March 2024 (“ Decision ”). By the Decision, the Tribunal dismissed the Employee’s claims for damages, loss of income, loss of benefits and unpaid entitlement of share awards under a share awards/stock options scheme operated by the Defendant company (“ Employer ”) for its employees (“ Scheme ”), all of which the Employee claims to be payable to him as a result of the Employer’s unlawful termination and breach of his contract of employment.

2. The application is made under section 32 of the Labour Tribunal Ordinance ( Cap 25 ) (“ Ordinance ”), on the ground that the Decision is erroneous in law. The Employee contends that there were errors in law in: (1) the Tribunal’s construction of the relevant clause of the contract of employment providing for the duration of the employment; and (2) the Tribunal’s finding that the Employer’s termination of his employment was termination without notice, to constitute an event of an “extraordinary cancellation without notice” under the Scheme. As a result, this finding disentitles the Employee from claiming the share awards for 2016 to 2020 which the Employee claims are due to him under the Scheme.

3. Under section 32 of the Ordinance, any party dissatisfied with an award, order or determination by the Tribunal on the ground that the award, order or determination is erroneous in point of law, or outside the jurisdiction of the Tribunal, may apply to the Court of First Instance for leave to appeal. In considering whether to grant leave to appeal, the Court must be satisfied that the intended grounds of appeal are genuine grounds based on errors of law, for which leave can be given ( Karchoud, Leila Bent Mohamed v The Incorporated Trustees of The Islamic Community Fund of Hong Kong HCLA 61/2001, 30 January 2002), and that there is an arguable ground of appeal ( Chan Kwok Hung v Hotel Panorama Company Ltd , HCLA 30/2009, 19 November 2009).

4. Having duly considered the Decision and the submissions made by the Employee, I consider that there are arguable grounds of appeal, and will grant leave for the following reasons.

Construction of the provision on duration of employment

5. The Employee argued before the Tribunal and on this application for leave to appeal that the contract of employment between the Employer and himself (“