Court clarifies worker's rights after confusion in identifying the correct employer
A Hong Kong court recently dealt with a case involving a worker who sought to join an additional company as a respondent in her workplace injury compensation claim more than a year after the statutory deadline, raising important questions about reasonable excuses for late applications in employees’ compensation cases.
The worker argued that she had reasonable excuse for the delay in adding the company to her claim, maintaining that conflicting information from the defendants’ lawyers and denial of the company’s involvement had prevented her from identifying the correct employer until crucial evidence emerged. She claimed the company was actually the principal contractor responsible for her workplace safety.
The employer opposed the application, arguing that the worker had failed to provide reasonable excuse for the significant delay in making the application. The company maintained that it should not be joined to proceedings where the worker had been sleeping on her rights for more than a year after learning of the company’s existence.
The worker was injured in an accident on 12 February 2022 at an industrial site when “her left hand was caught and dragged into a machine in operation,” resulting in “serious left forearm injuries resulting in multiple fractures and near amputation of the left distal forearm.” The initial compensation claim was filed against two respondents based on a Form 2 Notice identifying one company as the worker’s employer.
However, the worker later discovered that another company with a similar name might be the actual principal contractor responsible for workplace safety. The court noted: “There is no evidence that [the worker] ever had knowledge of there being another company bearing the same name of Chiho.” The existence of this additional company only became apparent through correspondence from the defendants’ lawyers in August 2023.
The worker sought to join this third company in March 2025, more than 12 months after the 24-month statutory limitation period had expired. Under the Employees’ Compensation Ordinance, the court can allow late applications only if satisfied there was “reasonable excuse” for the delay.
The worker’s difficulties were complicated by the conduct of the defendants’ legal representatives. The court found that lawyers acting for the existing respondents had “taken a strong stance of denial of involvement” and “threatened to seek indemnity costs against [the worker] should the latter take out an application to join [the third company] in these proceedings.”
The court determined that the defendants’ lawyers “have not been forthcoming in identifying the principal contractor in this case” and that the information provided was “not helpful but rather confusing as to the identity of the principal contractor of the Site.” The lawyers “strongly denied any sub-contracting relationship” and insisted the third company “was not the principal contractor.”
The court concluded: “I take the view that [the worker’s] failure to issue the joinder application within time was induced by the conduct and reply letters of the solicitors for [the respondents] to some extent.” This misleading information created reasonable grounds for the worker’s delay in identifying the correct employer.
The breakthrough came only in January 2025 when witness statements were exchanged. The first respondent’s witness statement revealed that “after completion of the contract, the working relationship between [the first respondent] and [the third company] continued” and that he “himself, like other workers, was the employee of [the existing respondent]/[the third company].”
The statement also revealed that the third company “had control/supervision/management of the works on the Site and the workers including [the worker], and provided all the work tools.” This directly contradicted the defendants’ lawyers’ previous assertions that there was no ongoing relationship and that the third company was not involved in workplace operations.
The court noted: “It was not until [the worker] had sight of the witness statement of [the first respondent] in mid-January 2025 that the role of [the third company] with regard to [the worker’s] works on the Site became clear. The Summons for joinder was issued on 3 March 2025.”
The court applied the legal test for “reasonable excuse,” considering factors including the reason for delay, length of delay, merits of the claim, and potential prejudice. The court found: “I consider it reasonable for [the worker’s] solicitors to take a cautious approach and not to issue the joinder application upon the letters of [the defendants’ lawyers] covering the period from August 2023 to November 2024, for such an application would have costs implications.”
The court rejected the argument that the worker had been “sleeping on her rights for more than a year,” finding instead that the delay was justified by the defendants’ conduct. The court stated: “I do not consider it could be said properly that [the worker] has been sleeping on her rights for more than a year since [the worker’s lawyers] first had notice in August 2023 of the existence of [the third company].”
The court also found that the worker’s claim “is not bound to fail but on the contrary has merits, the main issues in dispute being the identities of the employer and/or principal contractor and who should be responsible.” There was no evidence of prejudice to the third company since its parent company had been involved throughout.
The court concluded: “I find that the Applicant has satisfied the requirement of a reasonable excuse under section 14(4) of the Employees’ Compensation Ordinance. In the interest of justice, this joinder application ought to be allowed.” The court granted leave for the worker to join the third company as a respondent and allowed amendment of the original application.
The court ordered that “costs of the Summons including the costs of the hearing be to [the worker], payable by [the respondents], with certificate for counsel.” The court found “there is no reason why costs should not follow the event” since the respondents had “unsuccessfully contested the Summons.”
This decision demonstrates the importance of candour from legal representatives in compensation proceedings and the courts’ willingness to excuse delays caused by defendants’ misleading conduct.
The case highlights how obstructive behaviour by opposing parties can provide reasonable excuse for procedural delays in workplace injury claims.
