The Hong Kong District Court case of Dean Alexander Aslett v. Lane Crawford (DCEO 3/2013, 26 November 2013) held that in relation to proceedings instituted in the Labour Tribunal and transferred to the District Court, in determining whether or not a discrimination claim is time-barred under section 80(1) of the Race Discrimination Ordinance (RDO), time will run from the date when proceedings are first instituted in the Labour Tribunal notwithstanding any subsequent directions being given by the District Court for issuance of a fresh writ.
The facts
The Plaintiff was employed as a personal shopper by the Defendant. The Plaintiff claimed that he was constructively dismissed by the Defendant as a result of the Defendant's ill-treatment of him including that he had been discriminated against on the grounds of his race.
As the Plaintiff's claim involved race discrimination, the Presiding Officer of the Labour Tribunal ordered a transfer of proceedings to the District Court.
The Defendant sought to strike out the Plaintiff's Statement of Claim on the following grounds that:
- The claim was time barred under section 80(1) of the RDO (i.e., the claim fell outside the period of 24 months from the alleged discriminatory treatment);
- The Plaintiff's claim was frivolous and vexatious and had no chance of success on the merits; and
- The Plaintiff had suffered no loss or damage.
The District Court held that the claim was not time-barred but struck out the claim on the basis of the other two grounds.
The alleged discriminatory acts complained of occurred throughout the Plaintiff's employment from 2 August 2010 to 4 December 2010. Although a fresh writ was issued in the District Court on 15 March 2013, the court held that the Plaintiff had instituted the proceedings at the Labour Tribunal as early as on 31 October 2012. Therefore, the 24-month limitation period under s.80(1) of the RDO had not expired and the Plaintiff's claim under the RDO was not time-barred.
Takeaway
For the purpose of determining whether a discrimination claim is time-barred under RDO s.80, SDO s.86, DDO s.82 and FSDO s.64 (the 24-month limitation period), the date of institution of the proceedings in the Labour Tribunal shall be taken as the date of institution of the proceedings notwithstanding any subsequent directions being given by the District Court for issuance of a fresh writ.
Click here to access the full judgment.
Learn more about our Hong Kong office, Employment & Benefits and Litigation & Dispute Resolution practices.
Visit us at www.mayerbrown.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
© Copyright 2014. The Mayer Brown Practices. All rights reserved.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.
