With employees' increased awareness on their own rights and interests, the number of lawsuits against employers filed by employees in the Labour Tribunal is increasing. The outcome of a lawsuit often has a far-reaching impact. That is, a series of lawsuits with related controversies may trigger a series of lawsuit, as well as promoting a bad corporate culture, such as a corporate/ an employer being accused of dismissing an employee who violated the employment rules. Lawyers/ Barristers are banned legally from representing the employer in any arraignment or trial, and most of the employers may only have the experience of handling a settlement and have no relevant formal trial experience. In addition, it usually takes only one week from receiving the court summons to submitting the defence statement. Therefore, employer and the human resources department must be familiar with the relevant procedures, and carry out strategies which can increase the employer's chance of winning during the trial.
Based on the experience in the past 20 years of assisting employers in handling numerous related tribunal lawsuits, the speaker will share his practical experience and skills so that participants can better protect the rights and interests of employers and increase the chances of winning lawsuits.
1. The Tribunal's Litigation Procedures
- Court summons
- Meeting with the Investigation Officer
- Submission of statement of defence, supporting documents and witness statements
- First court mention
- Formal pre-trial review
- Formal trial
- Appeal to High Court
2. The strategic deployment considered by the employer (defendant) for the Call Over Hearing
- Do you need the assistance of a lawyer or legal advisor? (Note: solicitors or barristers cannot appear or represent an employer in any Labour Tribunal proceedings)
- Can the time limit for submitting the defence statement and witness statements be extended?
- Can I apply for a postponement of the first hearing, and how to persuade the Presiding Officer?
- Special considerations for writing a defence statement: clarification of facts, disputes over legal opinions, and is it necessary to cite cases?
- Notes on writing witness statements, including format and wordings
- Who signs the defence statement and what are the related legal responsibilities?
- Dos and don'ts when meeting with the Investigation Officer? What information is available for more effective deployment?
- Is a reconciliation strategy considered? Will a settlement in the Tribunal prevent the claimant from pursuing further litigation in other courts?
- Other precautions before appearing in court: behavior, language, addressing the Presiding officer, whether witnesses need to attend the trial or any other procedures, names of both parties
3. Points to note before the Pre-trial Review Hearing
- How to apply for amending the defence statement, adding witnesses and witness statements?
- Advise and inform the Presiding Officer that a written opening statement will be submitted?
- What is the procedure for further submission of documents after the court mention?
- If the claimant has submitted a written witness statement, what is the strategy for the written response?
4. Employer's winning strategies in a Formal Trial
- Trial procedures include: opening statement/ leading defendant's witnesses/ cross-examination and re-examination/ claimant and its witnesses/ closing statement/ judgement
- The key to winning a trial:
i. Is the opening statement presented to the Presiding Officer in advance in the form of a "witness statement"? What are the advantages and disadvantages?
ii. How to cross-examine/ re-examine the claimant and the witness' statement or testimony?
iii. If the claimant or the claimant's witnesses' testimony lack factual basis or evidence, or is irrelevant to the litigation, how and at which session should the defendant rebut?
iv. What are the coping strategies when facing the claimant's cross-examination/ re-examination?
v. How to guide the defendant's witness to testify and respond or rebut the claimant's unreasonable statements or allegations?
vi. How do I request a written closing statement and what are the benefits to the employer? (key point for winning)
vii. Notes on the closing arguments:
• Reiterate key defences
• How to indicate why the statement of the claimant and its witnesses should not be admissible
• Invite the Presiding Officer to accept key points of evidence from employer (defendant)
• Benefits of citing cases
5. Points to note when questions employers' witnesses and claimants' witnesses
- How to avoid asking Leading Questions that are not inadmissible in court
- How to write a favourable and admissible witness statement
- Can further statements be added to the formal trial?
- Liability of witnesses under oath
6. Considerations for review and appeal to the High Court
7. Analysis of typical litigation in the Labour Tribunal
- How to deal with employee's claims about Unreasonable Dismissal and Wrongful Summary Dismissal?
- How to deal with lawsuits related to employee's dismissal due to habitual sick leave/habitual lateness/ gross negligence?
- How to deal with other typical lawsuits?
- The speaker will provide relevant cases and defence templates for the participants' reference for future potential litigation
8. In Labour Tribunal proceedings, if an employee's allegations involve criminal elements, what strategy may the employer apply?