• Arbitration can be advantageous in employment disputes. It can be designed to be quick, simple, cost-effective, informal and efficient.
• Senior employees are likely to recognise that there is much in it for them, especially if they know that the company itself will pay for the process, and that their compensation and perks will not be aired in public.

Arbitration can be a simpler, more effective alternative to the Labour Tribunal yet surprisingly few people are familiar with the process. It’s not for every employee, or for every dispute, but arbitration makes sense up there in the C-suite.

Most people in Hong Kong, if asked where they think disputes between employees and their bosses are resolved, will mention the Labour Tribunal. Some people, including HR professionals of course, may also know that some large or complex cases end up in court; for instance, if an injunction is needed to enforce terms imposing confidentiality or non-competition obligations.

But very few people, if any, are likely to mention a third possibility, which is that employment disputes can also be dealt with in arbitration.

A sometimes mysterious process

One possible explanation for this is that the concept of arbitration, and how it works, is a mystery to some.

According to the Hong Kong International Arbitration Centre (HKIAC), arbitration “…is a consensual dispute resolution process based on the parties’ agreement to submit their disputes for resolution to an arbitral tribunal usually composed of one or three independent arbitrators appointed by or on behalf of the parties”.

This means the dispute is settled by a private person who is not a judge, ie, an arbitrator. Arbitration can be advantageous in employment disputes. The procedure is malleable, so that, just like in the Labour Tribunal, it can be designed to be quick, simple, cost- effective, informal and efficient.

It enables sensitive disputes, which either or both parties want to keep out of the public domain, to be handled discreetly and confidentially.

In addition, however – and this is what makes it particularly attractive for disputes involving well-compensated senior members of staff – the arbitrator can be someone who has a real understanding of the relevant industry.

Expert in the field

With all due respect to Presiding Officers in the Labour Tribunal, and to professional judges in the court system, they may not be best placed to come to a view: they are unlikely to have worked in the sector in question, and they probably have no experience of the complex bonus arrangements that many employees working in the industry have.

Arbitration therefore provides the parties with an opportunity to pick their “judge”, ie, their arbitrator(s) according to their qualifications and experience, to agree on a bespoke procedure for getting to the bottom of the issue, and to resolve their dispute behind closed doors.

To get a dispute to arbitration however requires the employer and employee to come to an agreement. This agreement can either be included in advance in the employment contract, or one can be drafted after the dispute has arisen (the latter example is obviously rare: when people are in dispute it is generally challenging for them to agree about anything).

The catches

There is a legal issue however. Sometimes people forget or ignore that they have agreed arbitration, and start proceedings in the Labour Tribunal or court. This is obviously a breach of contract, but while both the law and the courts in Hong Kong are supportive of arbitration, and in a commercial dispute generally force the parties to honour their agreement, the position is less clear in an employment context.

Essentially, under the Employment Ordinance, the court has a choice between allowing the Labour Tribunal or court proceedings to go ahead, or to stop them and insist upon arbitration.

The court’s discretion is likely to be heavily influenced by how the proposed arbitration is intended to be run. If the arbitration is likely to be slow, complicated, expensive, unnecessarily formal or inefficient, or there is any combination of these factors present, the court may well be extremely cautious.

Good for all sides

And so, when viewed from the perspective of the employer, the challenge will be to demonstrate that the procedure agreed with the employee will provide a solution that is objectively at least as good from the employee’s perspective, if not better than he could get in the court or Labour Tribunal system.

This is done by carefully drafting the arbitration agreement. For example, the parties may agree upon arbitration rules that impose an obligation on the arbitrators to run the case in a way that avoids unnecessary delay, complexity and expense. Many of the arbitration institutions, including the HKIAC, have standard arbitration rules designed for those purposes.

In addition, the agreement could be employee-friendly in other ways. It may require mediation – a process by which a neutral person helps the parties to reach a negotiated settlement – before the case goes anywhere near arbitration; it might impose an obligation on the tribunal to decide the case within a limited time; or it may require the employer to shoulder most of the costs of the process.

Basically the agreement needs to be tailored to fit the circumstances and the people concerned. And in that respect the possibilities are endless.

Employees generally understand that the Labour Tribunal was set up for their benefit to provide a quick, simple, and cost-effective way to resolve disputes with their employers. They also know that, in the Labour Tribunal, lawyers are not permitted, and that if they lose, their financial downside is limited. They may well feel, therefore, that arbitration does not provide these advantages.

Employees may also be intimidated by the relatively opaque process of arbitration behind closed doors.

At the same time, however, senior employees, especially executives in the C-suite with generous base salaries and complex incentive arrangements, are likely to recognise that there is much in it for them, especially if they know that the company itself will pay for the process, and that their compensation and perks will not be aired in public.

But if, having agreed to arbitration, employees remain unconvinced about their decision, they can at least console themselves with the thought that the court or Labour Tribunal may agree with them that arbitration is inappropriate. There have not been many cases decided on how the court should exercise its discretion, and so far the courts have been pro- employee. But that may well change in Hong Kong’s current pro-arbitration environment.

Tailoring employment contracts to achieve the objectively correct outcome is therefore both sensible and advisable. Thus, giving the company the option of taking its dispute to arbitration is something HR professionals are likely to be thanked for, not the reverse.

Key takeaways for HR professionals

1. Don’t assume that the Labour Tribunal, or the courts, are the only places to resolve disputes with employees.
2. Some employment disputes are best resolved by an arbitration tribunal consisting of one or three independent arbitrators.
3. The advantages of arbitration include a flexible bespoke procedure which can result in quick and cost-effective results, confidentiality and an expert panel.
4. Consider inserting a carefully drafted arbitration clause in your contracts with senior employees: the court will not automatically enforce it, but unless it is there, you do not even have the option of insisting on arbitration.

This article originally appeared in the July/August 2017 edition of Human Resources, the official journal of the Hong Kong Institute of Human Resource Management, and is reproduced with permission from HKIHRM and Classified Post.

仲裁兼顧各方利益

奧睿律師事務所合夥人 Charles W. Allen (香港商業訴訟與國際仲裁業務部主管)

•           仲裁有助排解僱傭糾紛﹐其過程可以設計得簡便快捷、符合成本效益﹐做法亦不拘形式、成效顯著。

•           資深員工傾向支持仲裁﹐尤其是如果他們明白公司將會承擔仲裁費用﹐他們亦毋須公開自己的薪酬福利。

較入稟勞資審裁處，以仲裁解決爭議可以更簡單有效。不過，一般人對仲裁程序知之甚少。仲裁未必適合所有僱員，也未必適用於每宗糾紛。但對於企業高級管理層而言，仲裁卻是個理想的選擇。

普遍香港人認為解決僱傭糾紛的途徑離不開入稟勞資審裁處。大部分人士（包括人力資源專才）或者亦會知道嚴重或複雜的案件會鬧上法庭，例如一些須要申請禁制令、執行 保密責任或不競爭責任的案件。

循仲裁解決僱傭糾紛是少數人會提及的第三種途徑。

鮮為人知的仲裁過程

較少人提及仲裁的原因可能是因為大家並不了解仲裁的概念及過程。

根據香港國際仲裁中心的定義，仲裁「……是以當事人的約定爲基礎的爭議解決方式，即當事人約定將爭議提交通常由一或三名中立的、由或代當事人指定的仲裁員組成的仲裁庭解決」。

換言之，排解糾紛的仲裁員可由法官以外的人士以個人身分擔任。仲裁有助排解僱傭糾紛，原因是仲裁過程靈活，而且做法與勞資審裁處相若，簡便快捷並符合成本效益，兼不拘形式、成效顯著。

若當事人或僱傭雙方不希望公開敏感資料，便能透過仲裁私下處理糾紛。

此外，仲裁員可由真正了解相關行業的人士擔任；所以，若有關糾紛牽連薪酬豐厚的資深僱員，仲裁可算是一個更理想的選擇。

行業專家

勞資審裁處的審裁官及法庭上的專業法官大多未曾從事過相關行業，比起業內人士，他們缺乏處理各種複雜花紅安排的經驗，所以他們未必是最適合裁決僱傭糾紛的人選。

因此，仲裁正好為當事人提供機會，讓他們根據資歷及經驗挑選「法官」─即處理其糾紛的仲裁員，並因應各方的需要，協商如何深入探討爭議，私下解決糾紛。

然而，若要以仲裁解決糾紛，僱主與僱員必須達成共識。該協議可事先寫入僱傭合約，或於糾紛發生後再行擬定協議。後者做法較為罕見，因為一旦出現糾紛，當事人往往難以達成任何共識。

仲裁過程面對的困難

不過，透過仲裁解決爭議亦衍生其他法律問題。有時當事人會忘記或故意無視事前的約定，轉而入稟勞資審裁處或法庭。這種做法顯然違反合約，儘管香港的法例及法庭支持仲裁，而且在商業糾紛當中，法庭通常會勒令當事人履行約定，但法庭在處理僱傭糾紛時，其立場一般不如審理商業糾紛般明確。

根據《僱傭條例》，法庭可選擇將訴訟交由勞資審裁處跟進，或由法庭繼續審理，又或者中止有關程序並堅持以仲裁解決。

法庭的決定取決於執行仲裁的方式。倘若仲裁進展緩慢、複雜、費用不菲、過於正式、成效不彰，或涉及上述多個因素，法庭的態度會趨向謹慎。

雙贏局面

因此，僱主的難處在於證明僱傭雙方能透過協定的程序，得出一個從僱員的角度來說不遜色於法庭或勞資審裁處的裁決的解決方案。要做到這一點，雙方須審慎擬訂仲裁協議。例如，當事人可議定仲裁規則，規定仲裁員在仲裁過程中須避免不必要的延誤、複雜問題及費用。多家仲裁機構，包括香港國際仲裁中心均就此設有標準的仲裁規則。

此外，雙方亦可在仲裁協議中訂立對僱員有利的條款，例如在仲裁前，先由一位中立人士進行調解，協助當事人透過談判協商達成協定；或要求審裁處在指定時限內頒下裁決；又或要求僱主承擔相關程序的大部分費用。

通常協議條款因應情況和當事人而定，難以盡述。

大多僱員都理解勞資審裁處保障僱員權益，為他們提供簡單快捷且符合成本效益的途徑以解決勞資糾紛。他們亦知道勞資審裁處的聆訊不設代表律師，所以即使僱員敗訴，要承擔的費用亦有限。因此，僱員可能會覺得仲裁缺乏上述優點。

仲裁過程保密，缺乏透明度，亦可能會令僱員望而卻步。

然而，資深僱員可能會支持仲裁，尤其是薪酬福利豐厚和花紅安排複雜的高級管理層。對資深員工來說，公司若肯承擔仲裁費用，又毋須公開自己的薪酬福利，如此做法對他們更是有利。

但是，倘若僱員同意進行仲裁後仍心存疑慮，亦不必過分憂慮，至少法庭或勞資審裁處可能亦會同意案件不宜付諸仲裁。至今未有足夠參考案例去判斷法庭如何行使相關酌情權，但大多情況下法庭會偏向僱員。隨著仲裁在香港普及，這種狀況很可能會有所改變。

因此，訂立適當的僱傭合約以取得客觀和正確的結果，是合理和明智之舉。人力資源專才若能說服公司選擇以仲裁解決糾紛，對公司更是有利無害。

人力資源專才應注意的事項

1. 勞資審裁處或法庭並非解決勞資糾紛的唯一選擇。
2. 由一名或三名獨立仲裁員組成的仲裁庭，可有效地解決某些僱傭糾紛。
3. 仲裁的好處是其度身訂做的靈活程序可以令過程簡便快捷，符合成本效益，而且仲裁有利於資料保密，並可安排專家小組參與其中。
4. 在與資深僱員訂立合約時，考慮加入經謹慎草擬的仲裁條款。雖然法庭無法自動強制執行該條款，但如果合約沒有仲裁條款，公司日後則連提出進行仲裁的選擇也沒有。 

註：此乃中文譯本，一切內容以英文版本為準。