On February 18, 2019, the Respondent was summarily dismissed by the Appellant for gross misconduct of theft. On May 6, 2019, the Respondent reported the existence of a dispute for unfair dismissal, owed wages, loss of wages, and discrimination against the Appellant to the Ministry of Border Control and Employment ("the Department"). On August 22, 2019, the Respondent lodged an Originating Application with the Secretary of the Labour Tribunal for a decision on the dispute.
Grounds of Appeal
The Appellant's grounds of appeal were that the Tribunal erred in law by misconstruing the proper procedure for making a complaint at the Tribunal under the Employment Ordinance, erred in taking into consideration facts not in evidence and accepted evidence from Counsel for the Applicant at the Bar, and failed to give adequate and substantive reasons for its conclusions and took into consideration irrelevant considerations.
Legal Framework
The Employment Ordinance gives every employee the right not to be unfairly dismissed and the right to complain to the Labour Tribunal within six months of dismissal. The Tribunal is a statutory body created by the Ordinance, and its power is limited to considering complaints filed within the six-month period or within a further period it considers reasonable if it was not reasonably practicable for the complaint to be presented within six months.
Procedure
The Ordinance and the Labour Tribunal Rules do not establish the procedure or form for reporting a complaint by an employee to the Tribunal. The Tribunal may hear matters brought before it outside of the form of an originating summons where commenced by an employee of their own volition and may consider evidence given other than under oath.
Analysis
The Respondent went to the Labour Commissioner with her complaint but did not present her complaint to the Labour Tribunal within the six-month period, as she was not made aware of the need to do so. The Tribunal erroneously concluded that the failure to report the dispute to the Tribunal was attributable entirely to the Department, when it was attributable to the Respondent's ignorance of the law.
Conclusion
The appeal is allowed, the decision of the Tribunal is set aside, and the Respondent's claim is struck out.