Graceway Trading Ltd. v Kwam Arthur (CL-AP 8 of 2022) [2023] TCACA 16 (15 December 2023)

This is an appeal by Graceway Trading Ltd. (the Appellant) against the compensation decision of the Labour Tribunal in relation to an unfair dismissal claim brought by Kwam Arthur (the Respondent). The Appellant challenged the Tribunal's decision on several grounds.

Grounds of Appeal

1) The Tribunal erred in refusing to share the Respondent's compensation submissions with the Appellant.

2) The Tribunal erred in awarding compensation based on a 44-hour work week instead of the Respondent's actual average of 34 hours per week.

3) The Tribunal erred in awarding three months' loss of earnings under section 91(2) of the Employment Ordinance.

4) The Tribunal erred in awarding payment in lieu of notice.

5) The Tribunal erred in awarding a compensatory award under section 84 in addition to the awards under sections 91(2) and payment in lieu of notice.

Court's Findings

1) The Court found that fairness requires compensation submissions to be shared with parties in advance to allow them to respond.

2) The Court agreed with the Appellant that the basic award should be calculated based on the Respondent's actual average weekly hours of 34, not the contractual maximum of 44 hours.

3) The Court found that the three months' loss of earnings awarded under section 91(2) was reasonable and within the Tribunal's jurisdiction.

4) The Court upheld the award of payment in lieu of notice, finding that the Ordinance requires notice or payment in lieu in all termination cases except those specified in section 63.

5) The Court agreed with the Appellant that the Tribunal erred in awarding separate compensatory awards under sections 84 and 91(2), and struck out the award under section 84.