Jurisdiction - Hong Kong
Hong Kong – When Employment Issues And Public Law Cross…

6 February, 2013


Legal News & Analysis – Asia Pacific – Hong Kong – Labour & Employment


Tan Shih Ying v City University of Hong Kong [2012] HKEC 1678


Factual background


Ms. Tan (the "Applicant") was employed by City University of Hong Kong (the "University") under a 3-year fixed term contract commencing on 8 December 2008 and ending on 31 December 2011. On 29 September 2011, the Provost recommended that the Applicant not be considered for re-appointment. Shortly after, the Applicant discovered the Policies and Procedures on Redundancy (the "Policies"). She believed that she was made redundant and should thus have been given the benefit of the procedural rights set out in the Policies which the University failed to do. Accordingly the Applicant applied for judicial review of the University's decision and also commenced proceedings in the Labour Tribunal.


The Labour Tribunal proceedings were brought to an end by the University which made a limited admission of liability and a redundancy ex-gratia payment of $142,618.85 to the Applicant. The judicial review application was dismissed by the Court of First Instance (the "CFI") on 7 December 2012.


The Applicant's main arguments in her judicial review application


The University is a statutory body created by the City University of Hong Kong Ordinance (Cap. 1132 of the laws of Hong Kong) (the "Ordinance"). Section 7 of the Ordinance grants the University the power to employ staff and such power can be delegated to the President. There are however restrictions on such delegation: sections 13(4)(a) and 15(2)(a) of the Ordinance respectively provide that the power to "approve the terms and conditions of service…" cannot be delegated.


The Applicant argued that the Policies formed part of her terms and conditions of employment; and since she was made redundant, the Policies should apply to her and the University was wrong not to have applied the Policies. She further argued that the University's decision was amenable to judicial review because the University has breached section 13(4)(a) or section 15(2)(a) of the Ordinance and the terms and conditions of her employment were regulated by the Ordinance giving her employment a statutory underpinning.


The Court of First Instance's decision


The central issue of the claim in the CFI was whether there was a "public law element" in the Applicant's complaint such that the University's decision was amenable to judicial review. In holding that the required public law element was absent, the CFI outlined three different tests for deciding whether or not a public law element is present.


The statutory underpinning test


To constitute a statutory underpinning necessary to satisfy the requirement of a public law element, there should in general be a statutory provision bearing directly on the right of an employer to dismiss its employee. The mere fact that the employer is a statutory body so that its exercise of power can ultimately be traced back to a statutory provision does not constitute sufficient statutory underpinning. On the facts, the Ordinance only required the University to approve the terms and conditions of the Applicant's employment and did not require the University to contract on specified terms. It follows that there was not sufficient statutory underpinning to satisfy the requirement of a public law element.


The nature of the function being discharged


Another test is to consider the essential nature of function being exercised by the public body (i.e. whether it is a public or private function). Since there was no case law to support the proposition that a public body's decision not to renew its staff's employment contract involved the exercise by it of a public law function, the CFI found that the University was making a purely private law decision not to renew the Applicant's employment contract, which is, though non-compliant with its own internal procedures, not in breach of any statutory provisions.


Breach of public duty


This test considers whether a public body, in making the decision complained of, was performing a public duty. The public duties of the University were set out by section 3(2) of the Ordinance and included "to provide for studies, training…in technology…and other subjects of learning." On the facts, a decision in respect of the Applicant on a matter relating to her employment with the University can hardly be said to be a decision of the University in discharge of its public duties.


Advice for employers


This case confirms that employment decisions of a public body are in general governed by private law and employees who are wronged by such decisions should seek private law remedies. If however a public body is required by its governing statute to act in a specified way when making employment decisions and the public body failed to do so or if such employment decisions involve the discharge of a public duty or public function, an employee may potentially have a claim under judicial review even though these decisions may otherwise seem to be a matter of contract more commonly governed by private law.



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