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When Will the Limitation Period Start to Run in a Discrimination Claim Transferred from the Labour Tribunal?




by:
Rosamund Browne
Hong Tran
Mayer Brown JSM - Hong Kong Office

 
April 2, 2014

Previously published on April 2, 2014

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:

1. 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);
2. The Plaintiff's claim was frivolous and vexatious and had no chance of success on the merits; and
3. 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.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Author
 
Rosamund Browne
Hong Tran
Practice Area
 
Labor & Employment
 
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