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View Full Version : Seems no one perfers to go to court


Turbo Beaver
18th Feb 2005, 11:42
South China Morning Post (Hong Kong)

November 24, 2002

HEADLINE: Labour Tribunal deters claims, say activists

BYLINE: Jane Moir

BODY:
Aggrieved workers seeking redress at the Labour Tribunal have complained of being bulldozed by frontline and judicial staff into dropping or settling their claims, flouting their right to due process.

In one case, a woman who attempted to claim constructive dismissal - by moving her to an untenable job - at the tribunal was told by an officer that she was wasting her time "because it wasn't in the law".

Other workers have had to battle with tribunal staff who take a red pen to their forms, changing their claims or telling them they do not have a case.

If they actually make it to the tribunal, claimants still feel they are being bullied into abandoning their case.

Unionist legislator Lee Cheuk-yan will lobby Chief Justice Andrew Li Kwok-nang to urgently investigate the situation as the number of people filing claims continues to swell.

The number of workers taking their bosses to the tribunal has jumped by more than 37 per cent since 1995. Lawyers, workers groups and human rights activists believe the system is so overwhelmed that many employees are being given short shrift.

Barrister John Wright, who also helps with a free legal advice service, is scathing of what he sees of manipulation to lessen the tribunal's workload.

"Interference with cases is outrageous. It's disgraceful. I've long had the view the Labour Tribunal as a medium for solving labour disputes has broken down. It's not working. They're not giving them due process."

He cited one case where a claimant had her case pencilled through by a clerk.

"Change this, change that. It's interference. The machine has broken down," he said.

A woman, Diane, who lodged a constructive dismissal claim, was told by an officer from the Labour Department that she did not have a case because the phrase was not in their advice booklet and therefore was not a legal term.

She also told Diane - after the boss failed to turn up for conciliation - that she could not get a penny from her employer and should drop the claim. Diane asked her: "Can you tell me what constructive dismissal is?"

"I cannot tell you," the officer said.

Diane persevered. But on her next appointment the same woman told her she should not proceed unless she was claiming a large amount of money.

Under employment law, not only is Diane entitled to claim constructive dismissal but she is also eligible for damages.

A spokeswoman for the Labour Department said the officer concerned had only advised Diane that "she may have difficulty" pursuing a constructive dismissal claim. "The officer just explained the facts to her," she said. "The Labour Department doesn't have the power to make the judgment. It's the court that makes such a judgment."

A more acute concern is that presiding officers themselves are also throwing cold water on people's claims.

"We believe the system itself of quick justice is correct," legislator Mr Lee said, adding: "It's just that the presiding officer abuses the system to pressure people to settle. Things are getting worse - there are more and more cases now. Because of the workload, they want to try to get rid of as many cases as possible. Unions are awash with complaints of this nature.

"The problem is that in the Labour Tribunal these people are without legal representation - so the presiding officer should be very careful in the way they approach the case. They haven't heard everything yet."

Mr Lee said the unions would urge the chief justice to look into the situation.

Human Rights Monitor director Law Yuk-kai said: "In some instances I have been in the hearing itself. The presiding officer started to lecture everybody, about 30 people, about the pros and cons - how it's time consuming; you may feel your case is strong, but it could be dubious . . .

"Then she said: If you have a settlement among yourselves, you get it immediately, or it the case may run forever'. It's a lot of pressure - she spent a whole hour on this, instead of getting to any concrete trial."

Mr Law stressed: "This kind of role conflict is very detrimental, at least to the image of the tribunal. These people's rights have been infringed. Surely there's something seriously wrong if you need the presiding officer to take up the role of advising people to leave."

A spokeswoman for the Judiciary said: "Claimants have the legal right to pursue appropriate claims at the Labour Tribunal. It is never the policy of the Labour Tribunal to discourage anyone from filing claims."

South China Morning Post (Hong Kong)

November 24, 2002

SECTION: NEWS; Pg. 2

LENGTH: 319 words

HEADLINE: Driver continues fight after hasty\' hearing

BYLINE: Klaudia Lee

BODY:
A lorry driver who sought justice from the Labour Tribunal has accused it of unfair treatment, claiming his case was rushed and handled carelessly.

Gary, who does not want to be identified because he has lodged an appeal with the Court of First Instance, took his case to the tribunal after the Labour Department failed to settle a dispute with his employer.

The driver claims his boss owes him one month\'s salary and other benefits totalling $ 100,000.

"The tribunal officers kept trying to persuade me to settle the dispute outside court, saying if I lost the case and wanted to appeal to the High Court, it would be a very troublesome process," he said.

Although Gary agreed, his boss said he was not obliged to pay him because he was self-employed and had no employment contract. But Gary said it was common for lorry drivers\' work to be based on verbal agreements.

He then continued to pursue the case, without success.

"The adjudicator treated me unfairly on a number of occasions and behaved improperly. Even his mobile phone rang during the hearing," he said.

Gary also claims that the defendant\'s evidence, such as the number of days he worked, was not thoroughly checked.

"I have the impression that both the adjudicator and the tribunal officers handled my case in a careless and hasty way," he said.

After a four-day hearing, he lost his case when the adjudicator ruled that he was self-employed.

Gary then took his complaint to Chief Justice Andrew Li Kwok-nang, and the case was referred to principal magistrate Ernest Lin Kam-hung. Mr Lin apologised on behalf of the adjudicator over the mobile phone incident, but said that if Gary was not happy he should lodge an appeal with the High Court, which he did.

Gary said: "I don\'t want the tribunal to handle my case anymore because I think the adjudicator is prejudiced against me."

Turbo Beaver
26th Feb 2005, 07:09
A restaurateur who opened and closed three restaurants under different names at the same location has received a suspended jail sentence for not paying his employees back wages.

Chan Wing-fai is the first company director to receive a custodial sentence for wage offences, which have been previously dealt with by fines.

A Kowloon City Court magistrate handed Chan the one-month term, suspended for two years, on Tuesday for not paying $ 36,500 in salaries to three of his former employees.

Permanent Secretary for Economic Development and Labour Matthew Cheung Kin -chung said the case would set a precedent.



"It's a landmark judgment," he said. "We welcome the custodial sentence as this will deter unscrupulous employers from defaulting on wage payments. It also sends a strong message that company directors have a personal responsibility to ensure wages are paid."

Chan was a director of a limited company, Wealth Rainbow Enterprises, which opened and closed three restaurants at 15 Broadway in Mei Foo between August 2003 and April last year.

They were called To Yuen, Sheung Hei and Sun Hai.

Chan was convicted because he knew the workers had not been paid but did nothing to rectify the situation. The maximum penalty is a $ 200,000 fine and one year's jail.

Some 118 workers were affected by the closure of the restaurants. They have sought $ 1 million in ex-gratia payments from the Protection of Wages on Insolvency Fund.

The three employees from the latest closure in April at Sun Hai Restaurant acted as prosecution witnesses in the Labour Department's case against Chan.

Mr Cheung said it was difficult to prosecute company directors because former employees needed to take time out to attend court.

The Labour Department last year saw 13 per cent more convictions, to 504, over wage offence summonses, compared with 2003. The largest fine was $ 140,000.

Separately, lawmakers yesterday urged the Food and Environmental Hygiene Department to keep 387 temporary workers it planned to dismiss.

A red-faced Wong Kwok-hing, who represents the labour constituency, slapped his desk at the manpower panel and scolded government officials for not implementing the chief executive's commitment to extend the employment of 10,000 temporary workers.

"We legislators are begging you to spare 400 positions," he said.

Various government departments have agreed to keep 10,083 of the 11,754 existing temporary positions.

Deputy Director of Food and Environmental Hygiene Donald Tong Chi-keung said 387 of these jobs would be cut from his department because they were no longer needed.

He has, however, agreed to consider extending the jobs and will give lawmakers a reply today.

FlexibleResponse
26th Feb 2005, 10:11
A restaurateur who opened and closed three restaurants under different names at the same location has received a suspended jail sentence for not paying his employees back wages.
Hmmm…

Let’s see now. Close down the positions at one company yet offer “new” positions at a new company which replaces or is wholly owned by the shareholders of the first company in order to pay reduced wages and to close out other obligations such as existing defined benefits schemes.

Now just what sort of company would stoop to such depths?