Gurung, Sanjaya Man v. Deliveroo Hong Kong Ltd

DCEC 1738/2023

[2024] HKDC 1932

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES’ COMPENSATION CASE NO 1738 OF 2023

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DECISION

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Background

1.The Applicant was a “Deliveroo” rider who allegedly suffered a traffic accident in February 2022 in the course of his work of collecting food packages from designated restaurants and delivering to customers for the Respondent.

2.According to his Application dated 31 July 2023 for employees’ compensation against the Respondent under the Employees’ Compensation Ordinance, Cap 282 (“ECO”), whilst he was collecting a food package for delivery on 26 February 2022, at around 8:39 p.m., the Applicant was riding his motorcycle and had a collision with a light goods vehicle at the junction between Morrison Street and Bonham Strand in Sheung Wan. The Applicant fell and skidded on the ground, and thereafter collided with a taxi, resulting in injuries to his right hand and index finger, as well as right clavicle fracture. Since then, he has ceased to provide further services to the Respondent.

3.By a summons dated 11 December 2023, the Respondent seeks to strike out the Applicant’s application pursuant to Order 18 rule 19(1)(b) and (d) of the Rules of the District Court, Cap.336H on the grounds that (i) the application for employees’ compensation is frivolous and vexatious as the Applicant was not an employee of the Respondent, and (ii) that it is abusive for the Applicant to seek employees’ compensation when he has already taken the benefit of a voluntary insurance policy provided by the Respondent to its riders on the basis that they were not employees.

4.It is important to mention at the outset that Section 5 of the ECO provides that a person can properly make a claim for employees’ compensation only if he is an employee of the Respondent. The Respondent’s position is that there is no proper basis for him to claim to be an employee of the Respondent, having regard to the terms of the written contract between the parties and other related facts as will be discussed below. As such, there is no prospect of the Applicant establishing that he was an employee of the Respondent at the material time.

5.As for the second issue, the Respondent says it is not open to the Applicant to approbate and reprobate in the hope of extracting further compensation from the Respondent since he has already taken the benefit of a voluntary insurance policy on the basis that he was not an employee of the Respondent.

The facts

The Supplier Agreement

6.The Supplier Agreement dated 12 August 2021 between the Applicant and the Respondent (the “Supplier Agreement”), which is not disputed by the parties, defines the parties’ relationship and describes the Applicant as an independent contractor as opposed to an employee:

(a)  The Applicant was “…a supplier in business on [his] own account who wishes to arrange the provision of delivery services to Deliveroo…” (Preamble A).

(b)  “As a self-employed supplier you are responsible for accounting for and paying any tax and MPF contributions due in respect of sums payable to you under or in connection with this Agreement.” (Clause 4.5) Indeed, according to the evidence of the Respondent, no Mandatory Provident Fund contributions were paid by the Respondent on the basis that the Applicant was an employee.

7.The Supplier Agreement also provided that the Applicant was not obliged to do any work for the Respondent. Instead, the Respondent submitted that the Applicant had significant freedom as to whether, when and how to provide the contracted delivery services to the Respondent according to the following terms of the Supplier Agreement:

(a)  “You are not obliged to do any work for Deliveroo, nor is Deliveroo obliged to make available any work to you. Throughout the term of this Agreement you are free to work for any other party including competitors of Deliveroo.” (Clause 2.2)

(b)  “While logged into the App[1], you can decide whether to accept or reject any order offered to you and if you do not wish to receive offers of work at any time, you can use the “offline” status.” (Clause 2.4)

(c)  “Any Delivery Fee offered to you will be communicated by Deliveroo. If you do not wish to accept the order for the Delivery Fee offered, you can reject the order.” (Clause 4.2)

(d)  “When you choose to provide Services… you should complete the Services within a reasonable time period, using any route you determine to be safe and efficient…” (Clause 2.5.1)

(e)  The Applicant was “…free to supply the Services either personally or through someone else engaged by [him] in accordance with clause 8.” (Preamble B)

(f)  Clause 8.1 provides: “Deliveroo recognises your right to engage others to provide the Services. You have the right, without the need to obtain Deliveroo’s prior approval, to arrange for another supplier to provide the Services (in whole or in part) on your behalf.”

8.Further, under the Supplier Agreement, save perhaps where he chose to exercise his right to engage a substitute, the Applicant was personally responsible for providing the necessary equipment. Clause 3.1 states that: “You will provide the equipment necessary to provide the Services including your own phone and vehicle”

9.There is no dispute in this case that the motorcycle and mobile phone the Applicant used in carrying out services under the Supplier Agreement belonged to the Applicant himself.

Other facts related to the operation of the Supplier Agreement

10.As mentioned above, the Respondent had purchased voluntary insurance (the “Voluntary Policy”), which is not compulsory insurance under the ECO, for its riders. The Voluntary Policy covers those riders who hold an active and valid rider supplier agreement with the Respondent to undertake delivery services. It is not disputed that the Applicant had made a claim for, and already received, the maximum payment of HK$100,000 available under the Voluntary Policy.

11.The Applicant contended that the court should consider the “practical realities” and “actual day-to-day work”. This the Respondent takes no issue with.

12.The Applicant claims that when he was working, he had to log into the Respondent’s online platform (“Deliveroo’s Rider App”) through his phone and would be tracked via such platform by the Respondent. The Respondent does not dispute this, but stressed that the Applicant could always choose whether to log on.

13.He also says he was reliant on the assignment of orders by the Respondent with “no practical control over how many orders I am assigned when I am online, when the orders would be assigned or the location of pick-up and delivery” within his chosen operational zone. The Respondent says this is not entirely correct, as the Applicant had complete control over whether to log on in the first place, and if he decided to log on, whether to accept an order or not. The Applicant was even free to change his mind and “unassign” himself from the order after he had initially accepted a delivery offer from the Respondent (see Supplier Agreement, Clause 2.5.1).

14.The Applicant further alleges that he was forced by the Deliveroo’s Rider App to work only in the Central area. The Respondent says this is a bare assertion, which is plainly contradicted by the screenshots produced by the Respondent showing that there is an option to “change area” in the Deliveroo’s Rider App.

15.The Applicant further claims that the rejection of orders placed to him by the Deliveroo’s Rider App would result in the loss of “boost fees” bonuses. He says riders only had 60 seconds within which to accept an order, failing which riders would be subject to warnings and termination, and the Respondent may terminate riders if they are the subject of repeated customer complaints.

16.The Respondent agrees that there is indeed such a “boost fee” system in place. It is a bonus payment system under which riders who accept over 80% of the orders assigned to them in a week when they are online will receive a “boost” of 1.3x to their fees.

17.The Respondent however denies that there is any such “60 seconds rule” as alleged by the Applicant, which is not supported by any documentary evidence from the Applicant. The Respondent says that any such rule would be inconsistent with Clause 2.4 of the Supplier Agreement which provides that a rider can decide whether to accept or reject any order offered to him.

18.The Respondent does not take issue with the Applicant’s assertion that the Respondent may terminate riders if they are the subject of repeated customer complaints, but says that a complaint can only be made against a rider if the rider accepts an order. Further, where there is a complaint, there is a process of investigation which provides the riders with an opportunity to respond, before any further action is taken by the Respondent.

19.The Applicant also claims that, during his period of work with the Respondent, he did not in fact work for any other third parties and that he worked solely with the Respondent. This, however, is neither here nor there as according to the Supplier Agreement, it is up to the Applicant whether to accept orders from other parties, or to provide service to them.

20.Next, the Applicant claims that his delivery fees were fixed by the Respondent with only an option to accept or reject the same, but without any opportunity to negotiate the rates or charges. This is not disputed.

21.Finally, the Applicant also claims that he was provided with a thermal bag, T-shirt and jacket bearing the Respondent’s logo (“the Respondent’s Rider Kit”), and that he and other riders were encouraged to use and wear the same so as to portray themselves as being part of or representative of the Respondent. The Respondent pointed out that this is misleading. The fact is that the Applicant had a genuine choice of what equipment to use, so long as minimum safety standards for the equipment used were met. In fact, Clause 3.1 of the Supplier Agreement provides that the Applicant was himself responsible for all necessary equipment for conducting delivery work. In any event, the Applicant was not required to use any of the Respondent’s branded equipment. The fact was that the Applicant had chosen to buy the Respondent’s Rider Kit from the Respondent, and had paid the Respondent for it.

The applicable legal principles

22.It is trite that it is for the party seeking to strike out to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. There should not be a trial on affidavits. The court also should not decide difficult points of law on a striking out: Hong Kong Civil Procedure 2024, Vol 1 at paragraph 18/19/4.

23.As for the treatment of factual disputes, Ma CJHC (as he then was) in Eugene Jae-hoon Oh v Kate Gaskell Richdale [2005] 2 HKLRD 285 said at paragraph 15:

“It is of course possible to refer to facts in order to found a strike out application. Order 18 r 19(1)(b)-(d) permit affidavit evidence to be utilized in order to show, for example, that a plaintiff simply has no factual basis to support the cause of action pleaded in his claim. Care, however, must be taken to ensure that a plaintiff is not prevented from going to trial unless the material facts before the court at the strike out stage are either uncontroversial or cannot seriously be in dispute. All this is a manifestation of the principle that it is only in plain and obvious cases that a claim can be struck out.”

24.Where the Court comes to the conclusion that the case is plainly and obviously unarguable, it should be struck out notwithstanding that the issues may have been considered “difficult or complicated”: Hong Kong Civil Procedure 2024, Vol 1 at paragraph 18/9/4(1).

25.Also, as a matter of procedure, a proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed. A proceeding is vexatious when it is oppressive or lacks bona fides (see Hong Kong Civil Procedure 2024, Vol 1 at paragraph 18/19/8).

26.As to the law on determining whether an employment relationship exists, the Respondent referred to the recent judgment of the Court of Appeal in Ho Wai Keung v Billion Rich Investments Ltd, CACV 15 of 2022, 8 August 2023; [2023] HKCA 929, in which Chow JA at paragraph 23 confirmed that, for consideration under the ECO, the test for determining whether an employer-employee relationship existed was that laid down in the landmark decision of the Court of Final Appeal in Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156.

27.The court in Ho Wai Keung also stated at paragraphs 24-25 of the judgment that this was an “overall evaluative-impressionistic approach” in deciding whether an employment relationship exists, requiring the court to examine all the features of the relationship between the alleged employer and employee against the background of various factors. Such factors, though comprehensive, are not to be applied mechanically. Chow JA also observed[2] that the weight to be afforded to each factor would be different in different cases.

28.Such factors, or indicia of employment, have also been referred to in the case of Lee Wai Kei Wicky v World Family Limited, HCLA 35 of 2015, 3 October 2017 at paragraph 17 where Lok J said:

“17. It is trite that the court would consider the following indicia of employment and decide, as a matter of overall impression, whether the relationship is one of employment:

(1) control (but it is not the sole determining factor);

(2) whether the person who provided the service provided his own equipment;

(3) whether such person could hire his own helpers;

(4) what degree of financial risk he took;

(5) whether he could profit from sound management in performing his task;

(6) whether he assumed investment and management responsibility;

(7) whether he could be identified as part of the employer’s business;

(8) whether he could perform his own business in the area;

(9) the parties’ own views of their relationship;

(10) incidence of tax and insurance; and

(11) traditional structure of the trade and arrangements within it.”

29.I shall bear in mind the above principles when considering the facts of the present case.

Analysis

30.The Respondent submitted that, on the basis of the facts and law above, a consideration of the above indicia of employment would lead one to conclude that the Applicant was not an employee. As such, this is a plain and obvious case that the claim should be struck out.

31.The Respondent also referred me to the recent decision by the English Supreme Court in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43, where the court analysed the position of riders working for Deliveroo UK under a contract very similar to the Supplier Agreement. The court came to the conclusion[3] that the riders were not in an employment relationship with Deliveroo UK.

32.I agree with the Respondent’s submission that although the decision in Independent Workers Union was made in the context of the European Convention of Human Rights, this is not a valid ground to distinguish the decision for present purposes. Firstly, it had already been conceded in the lower courts in the UK that there was no contract of employment under its domestic law[4]. Secondly, the approach adopted was, as with Hong Kong domestic law, based on “the application of a multifactorial test, focusing on the practicalities of the relationship and how it operates in reality”[5].

33.Independent Workers Union is thus of great persuasive value. Nonetheless, insofar as the indicia of employment is concerned, I shall apply the indicia under Hong Kong law set out above.

Indicia 1: level of control

34.The general principle is straightforward and is comprehensively set out in Chitty on Contracts: Hong Kong Specific Contracts (7^th Ed) at paragraph 12-012:

“Generally an employer can control how an employee performs the services. The greater the control exercised over the manner of performance of the services the greater the inference that the relationship is one of service, as opposed to for services. Conversely, the greater the degree of independence enjoyed by the worker the greater the inference that the relationship is one for services, and not of services.”

35.In the present case, it was submitted that the Respondent has a low degree of control in two critical dimensions: firstly, as to whether work will be done by the Applicant at all, and secondly, as to the mode in which such work will be done.

36.As to the former dimension, the Respondent says the facts above show that the Applicant was free to accept and reject work as he wished. Indeed, the documentary evidence shows that even when the Applicant was online in the Deliveroo Rider’s App, he had only accepted 86.95% of the orders offered to him.

37.Further, the Applicant could choose when and where he was available for work, and he was even free to change his mind even after he had initially accepted a delivery offer from the Respondent.

38.As to the latter dimension, the Respondent says the terms of the Supplier Agreement show that, firstly, the Applicant was only required to complete any accepted delivery in a “reasonable” time. Secondly, the Applicant was responsible for choosing the route he wished to use, as well as the vehicle or mode of transport he wished to use.

39.It is instructive to compare these facts to those in Wong Wai Ming Ken v FTE Logistics International Ltd, DCEC 314 of 2007, 27 August 2008, a case in which a delivery driver was found to be an employee. At paragraphs 37-38, HH Judge Marlene Ng (as she then was) held that the employer had “exercised a strong degree of control” over the driver because (1) the work hours were specified, the driver was required to clock his time card each day and there were enforcement mechanisms for not working on time, (2) the driver could not choose his workdays; and (3) the employer could make specific requests and directions in relation to the delivery services which the driver had to comply with, failing which the employer could terminate the driver.

40.As the Respondent has put it, which I accept, the facts of the present case could not be further from Wong Wai Ming Ken in the above respects.

41.On the other hand, the Applicant advanced various arguments on this factor.

42.First, the Applicant argues that the fact he had to log on to the Deliveroo’s Rider App and be tracked in the course of his work is evidence of control by the Respondent. However, it is plain that the use of the Deliveroo’s Rider App and the tracking function would not limit his freedom to decide whether to work and how to work as discussed above.

43.In any event, even if this amounted to a certain level of control, the Respondent says such control is of very low level that is found even in non-employment relationships. The law does not require a total lack of control before rejecting the suggestion of an employment relationship. It is normal for a principal to have some degree of control over even an independent contractor. Sometimes, some control for commercial purposes such as upholding performance standards and ensuring the quality of customer service is applied – see e.g. Leung Suk Fong Peggy v The Prudential Assurance Co Ltd [2011] 5 HKC 592 at paragraph 19; Lee Wai Kei Wicky (above) at paragraph 24.

44.In the present case, I accept and agree with the Respondent’s assertion that the use of the Deliveroo’s Rider App and the tracking function are for no more than legitimate commercial purposes, for facilitating efficiency, providing information to the restaurant partners and customers, and following up on and investigating complaints against riders. Indeed, the Applicant had fully agreed to how the Respondent would use the Deliveroo’s Rider App and its location tracking functions, as set out in Clause 10.2 of the Supplier Agreement[6].

45.Also, the same principle that a degree of control will be allowed disposes of the Applicant’s argument that the Respondent exerted control over him by having the right to terminate him if he is made the subject of repeated customer complaints. A principal must be fully entitled to dismiss underperforming independent contractors, to uphold quality standards.

46.Further, the Applicant says that his freedom to refuse to turn down delivery jobs is illusory because turning jobs down will cause him to lose the “boost fees” bonus. This point carries no force, as the Applicant was not forced to achieve or acquire the bonuses. He remained free to choose whether to log onto the Deliveroo’s Rider App and accept orders. There is no question of him being forced to accept a specific number of orders. He could choose not to perform to the high standards necessary to achieve such bonuses.

47.The Applicant also points to his inability to negotiate the details of each order issued to him, or to negotiate the calculation of delivery fees. I do not see these facts as relevant to whether the Applicant was working as an employee or independent contractor. In light of the commercial realities, all riders engaged by the Respondent, regardless of whether they are employees or independent contractors, would have been presented with offers with details already fixed and a pre-set formula for calculating delivery fees.

48.In light of the foregoing, I do not accept the Applicant’s arguments concerning control.

Indicia 2: provision of equipment

49.An independent contractor normally provides his own equipment, whereas an employee would usually have equipment provided to him. In the present case, there is no dispute that the Applicant provided and used his own motorcycle and mobile phone.

50.The Applicant argued however that the Respondent had provided him with the Respondent’s Rider’s Kit, but as already mentioned above, it was in fact the Applicant’s own choice to purchase the Respondent’s Rider’s Kit from the Respondent. It was not provided to him for free. As Lok J has mentioned in Lee Wai Kei Wicky at paragraph 36, “[t]he fact that [the worker] had to finance the provision of the Sales Kit is an important factor showing that there was no employment.”

51.The Applicant also relies on the Respondent’s provision of the Deliveroo Rider’s App. However, it seems to me that the reference to “equipment” as understood in the case law is directed at tangible items that involve significant costs. However, in the present case, the cost of allowing the Applicant to download and log into the Deliveroo Rider’s App would be negligible. I therefore see nothing in this argument.

Indicia 3 and 8: the Applicant’s ability to delegate work, engage in other work, and compete with the Respondent

52.It is common sense that employees are unlikely to be able to delegate their responsibilities to a third party, whereas independent contractors can frequently do so. In Employment Law & Practice in Hong Kong (2^nd Ed) at paragraph 2.024, the learned authors said:

“This factor does not feature as frequently in the case law, but where it does, it carries considerable weight. A worker who is free to assign the work to others or hire workers, will not normally be found to be in a contract of employment. Such freedom contradicts the concept of the employer’s control and the basic obligation of an employee to do the work personally.”

53.Similarly, in Independent Workers Union, the court observed at paragraph 69 that the power to appoint a substitute is “totally inconsistent with the existence of an obligation to provide personal service which is essential to the existence of an employment relationship”.

54.Here, as the Respondent has submitted, the fact that the Applicant was entitled to delegate delivery tasks to third parties is plainly a factor against any employment relationship.

55.In the present case, the Applicant was also free to engage in other businesses, or even compete with the Respondent. The court held in Independent Workers Union at paragraph 72 that “[r]iders are thus free to reject offers of work, to make themselves unavailable and to undertake work for competitors. Once again, these features are fundamentally inconsistent with any notion of an employment relationship”.

56.The Applicant’s only response is that, on the facts, he himself actually never availed himself of his rights to delegate or to compete, but this is neither here nor there.

Indicia 4 and 5: whether the Applicant had financial risk and could profit from sound management

57.This has been described by the learned author in Employment Law & Practice in Hong Kong at paragraph 2.027 as “expending one’s own energies and putting one’s own financial resources at risk in the business enterprise, with the possibility of financially benefiting or suffering from one’s own management decisions”.

58.In Singh Gurpinder v Craigside Investments Ltd t/a Pizzeria Italia, DCEC 1978 of 2011, 28 March 2013, in holding that the subject pizza delivery workers were not employees, HH Judge Alex Lee stated as follows:

“36…The more important evidence, in my view, was that the applicant had to arrange and maintenance [sic] his own motorcycle and to pay for expenses relating to the motorcycle. The applicant alone would bear any risk of committing any traffic offences and meeting with accidents resulting in injuries or damages to third parties, as the respondent would not be paying for any traffic tickets or third party insurance. He had to pay for his own petrol and therefore any fluctuations in the price of petrol would also be his risk. He would not be able to do as many rounds as he liked in case of traffic congestion.

37. On the other hand, the applicant could earn more money if he did more rounds of delivery by employing a more efficient time management or taking shorter routes or avoiding congested areas when making delivery.”

59.I agree with the Respondent that the present case is on all fours with Singh Gurpinder.

Indicia 6: the Applicant’s investment / management responsibility

60.As the Respondent pointed out, this factor is related to Indicia 4 and 5 discussed above. In Lee Wai Kei Wicky, Lok J held at paragraph 42 that:

“42. It is also not correct for Mr Kwok to say that the Claimant made very little or virtually no management or investment decisions, or that his task was just to perform the sales work and the rest was for the Defendant to manage or decide. The truth was that the way that the Claimant managed his own work (including how much time and effort to spend on the sales activities, and through which method he tried to sell the products), as well as how effectively he managed his subordinates, determined his productivity, which in turn determined his income. The Presiding Officer was therefore correct to find that, coupled with the financial risk the Claimant took and the way he could profit from sound management of his own tasks, this is an indicium against the existence of employment relationship.”

61.Hence, insofar as this factor is concerned, the key question is whether the Applicant made management or investment decisions in respect of his own business of operating as a driver. I am satisfied that he did, considering the evidence that he had a choice whether to accept orders, to manage the time of his work, and that he had to take into account the costs of providing and using his own equipment including his own motorcycle.

Indicia 7: whether the Applicant was an integral part of the Respondent’s business

62.In this respect it is useful to refer to Chitty on Contracts: Hong Kong Specific Contracts (7^th Ed) at paragraph 12-019 where it is stated:

“Employees are normally an integral part of the business of any employer. They are generally employed to assist the employer in carrying out the employer’s business on an ongoing basis, rather than simply to perform specific tasks. So whilst a surgeon who is not paid for nor selected by the hospital, but nevertheless is performing an operation in a hospital at the request of a patient, will not be an employee of the hospital, the nurses who are assisting with the operation, who work in the operating theatres on a daily basis and are selected by the hospital will be employees of the hospital. Also a clothing factory supervisor who it was claimed was an independent contractor…was held to be ‘part and parcel of the [clothing factories] organisation and an integral part of the factory operation. Therefore the supervisor was held to be an employee.” [underlines added]

63.As the Respondent pointed out, the question here is the degree of integration of the Applicant into the business organisation of the Respondent. The Respondent submitted that the Applicant was not engaged by them on an ongoing basis, and had no management obligations.

64.The Applicant submitted that he was “encouraged” to use the Respondent’s branded equipment and thus portray himself as part of the Respondent’s organisation. In this respect, the Respondent denies that the Applicant was so encouraged, but even if it could be seen in that way, it would seem that this is insufficient to be considered as a pointer as the Applicant was not required to do so – cf. Wong Wai Ming Ken at paragraph 41.

Indicia 9: the Applicant and the Respondent had agreed to the terms of the Supplier Agreement

65.The authorities hold that the label that the parties have chosen to describe their own relationship is a “relevant but not conclusive” factor: see Chitty on Contracts: Hong Kong Specific Contracts (7^th Ed) at paragraph 12-026. In any event, there is simply nothing in the Supplier Agreement that refers to or labels the Applicant as an employee of the Respondent.

66.In the present case, considering the terms of the Supplier Agreement, in particular the terms already set out above, there is nothing that suggests that the Applicant and the Respondent were in an employer-employee relationship. In fact, as mentioned above, such terms suggest otherwise.

Indicia 10: tax and insurance

67.It is not disputed that the Respondent did not make any Mandatory Provident Fund contributions or tax filings on behalf of the Applicant. This is a relevant albeit not decisive factor in favour of the Respondent – see e.g. Employment Law & Practice in HK at paragraph 2.028.

68.In relation to insurance, it is accepted that the Respondent did purchase the Voluntary Policy referred to above, but such insurance was voluntary and was not compelled by law. It did not constitute an employees’ compensation insurance policy.

Indicia 11: structure of the trade and industry standard

69.The Respondent submitted that the status of platform workers is a developing area, both in terms of the commercial realities and the law thereon. There is no industry standard or usual structure of the trade which can provide substantial guidance, as each case must turn on its own facts. In this regard, Mr Lau has helpfully referred the court to the Legislative Council Secretariat’s Information Note on “Protection of digital platform workers in Singapore and Spain” (2023), where it was noted at paragraph 2.3 that there was no clear trend in recent court rulings across various jurisdictions whether such workers were to be classified as employees.

70.Finally, Mr Lau has also fairly drawn my attention to a decision of the Labour Tribunal in the case of Re Zeek (LBTC 3170 of 2022 & LBTC 70, 74, 82-83 and 90 of 2023), in which the Labour Tribunal apparently held that delivery workers working for “Zeek” (a food delivery digital platform) were employees. However, as Mr Lau pointed out, there is no published judgment for the decision, and it appears that the most detailed summary of that case is in a report issued by the Hong Kong Christian Industrial Committee.

71.I agree with the Respondent that the facts of that case are distinguishable from the present one, in that the delivery workers had to take routes fixed and on schedules determined by “Zeek”, and that the delivery workers would be sanctioned if they refused orders. Also, they had no right to find substitutes or delegates.

Ruling on the employment point

72.In light of the foregoing analysis, I am of the view that most of the relevant indicia are plainly and obviously in the Respondent’s favour. The impressionistic analysis adopted by the English Supreme Court in Independent Workers Union at paragraphs 71-72 is also on point. The court in that case highlighted the following factors:

“(1) Riders do not have to carry out any deliveries at all.

(2) Riders do not work within specific working hours. They operate if and when they choose.

(3) Their place of work is not specified or agreed. They operate where they choose within the CKT zone.

(4) Their activity is not of a particular duration, nor does it have a certain continuity. Riders start and stop when they choose.

(5) They are not required to be available.

(6) As regards tools, materials and machinery, all equipment is at the riders’ expense. Riders use their own cycles and mobile phones.

(7) There is no periodic payment. Remuneration depends on whether riders choose to make deliveries and how many they make.

(8) Deliveries are not necessarily or typically their sole or principal source of income. Even where they are, a goodly proportion may earn from Deliveroo's direct competitors, potentially by undertaking the competitor's work in preference.

(9) There is no payment in kind such as food, lodging and transport.

(10) There is no entitlement to weekly rest and annual holidays.

(11) There is no reimbursement for the cost of travel.

(12) There is no protection from financial risk for riders, whether in the form of insurance[7], guaranteed earnings or otherwise.

Riders are thus free to reject offers of work, to make themselves unavailable and to undertake work for competitors. Once again, these features are fundamentally inconsistent with any notion of an employment relationship.”

73.These are also the important factors to be considered in the present case. On the facts before me, it is plain and obvious that the Applicant’s argument that he is an employee is unsustainable. In the circumstances, I am of the view that the present claim ought to be struck out on this ground alone.

Abuse of process

74.Further, the Respondent advanced a separate argument to strike out based on abuse of process, relying the fact that the Applicant had already applied for and received payment under the Voluntary Policy taken out by the Respondent based on the Supplier Agreement, the terms of which in turn shows that the Applicant was an independent contractor. The Respondent says the Applicant is not allowed to “blow hot and cold” in this respect, i.e. to vex the Respondent into further payment of employees’ compensation whereas he had already received the benefit of payment under the Voluntary Policy.

75.The Respondent relies on estoppel by convention – see First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd (2012) 15 HKCFAR 569 at paragraph 79, referring to Unruh v Seeberger (2007) 10 HKCFAR 31 where Ribeiro PJ re-stated the essential elements of an estoppel by convention. It is contended by the Respondent that it would be detrimental to the Respondent as a form of double jeopardy, to have face a claim for employees’ compensation after it had already caused payment to be made to the Applicant under the Voluntary Policy. As such, the Applicant is estopped from making his present claim for employees’ compensation.

76.I agree with the Respondent in this respect, and am of the view that the Applicant is estopped by convention. The pursuit of the claim is to vex the Respondent into making further compensation notwithstanding that the Applicant has already received payment under the Voluntary Policy.

77.In the circumstances, this claim should therefore be struck out as an abuse of process, not only on the ground that this is an action which is groundless, but also on the ground that this claim is “being used as a means of vexation and oppression” (see Hong Kong Civil Procedure 2024, Vol 1 at paragraph 18/19/9).

Order

78.For the reasons stated above, I allow the Respondent’s application and order that the Applicant’s claim herein be struck out.

79.I also make an order that the Applicant shall pay the Respondent’s costs of these proceedings, including the costs of and incidental to this application to strike out, with Certificate for Counsel, to be taxed if not agreed.

80.Lastly, I thank Mr Lau for his helpful assistance, and for the Applicant for his participation at the hearing.

The Applicant was unrepresented, appeared in person

Mr Kevin Lau, instructed by Lewis Silkin, for the Respondent