Pun, Pabitra v. Wong Kan Hing

HCLA000030/1997

IN THE HIGH COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL NO. 30 OF 1997

(CLAIM NO. LT 812/97)

____________________

____________________



Coram: Mr. Recorder Ronny Wong, S.C.

Date of Hearing: 1 September 1997

Date of Handing Down of Judgment: 16 September 1997



________________

J U D G M E N T

________________



1. This is an appeal pursuant to leave granted by Leong J. on 13 June 1997 against that part of the order dated 1 May 1997 made by the Presiding Officer of the Labour Tribunal disallowing the appellant's claim for "wages for rest days".

2. The appellant and the respondent entered into a standard form foreign domestic helper employment contract on 17 February 1996. However the appellant did not commence her employment until 1 June 1996.

3. The relationship was not a happy one. The employment was finally terminated on 13 January 1997. The appellant filed a claim against the respondent with the Labour Tribunal on 20 February 1997 claiming some eight items including a claim for $4,000 in respect of 32 rest days between 9 June 1996 to 12 January 1997.

4. It is convenient to set out that part of the Presiding Officer's finding in relation to this issue. In his judgment he said this:

"Not in dispute that the Claimant worked on rest days. The Defendant said she paid the Claimant extra $125.00 for every rest day. Not in dispute that the Claimant never enjoy a rest day. Mr. Justice Leong said in LTA No. 131 of 1995 that there is no pay for rest days. Even if the Claimant was not paid for her rest work, she would suffer no damage. I therefore dismiss her claim for rest day pay. However, this is a proper case to be referred to the Labour Department for them to investigate and consider if any one has been in breach of the law in failing to provide rest days."

5. It is therefore not in dispute that the appellant did work on rest days and she never enjoyed a rest day. However, the Presiding Officer dismissed her claim on the ground that there was "no pay for rest days". In supporting his finding the Presiding Officer cited Leong J's decision in the case of Fu Hong Choi v. Ho King Restaurant Co. Ltd LTA No. 131 of 1995. However, in my opinion, the Presiding Officer had misunderstood that authority. Leong J did not state that there is a general prohibition against payment for services rendered on rest days. Before I turn to that case, I shall first look at the relevant provisions on the Employment Ordinance Cap.57.

6. Under the Employment Ordinance, every employee who has been engaged under a continuous contract is entitled to at least one rest day in every period of seven days: s. 17(1). Rest days shall be in addition to any statutory holiday, or alternative holiday or substituted holiday, to which an employee is entitled under section 39: s. 17(2). A "rest day" is defined as any "continuous period of not less than 24 hours during which an employee is entitled under Part IV to abstain from working for his employer". s. 2.

7. An employee may choose to work on a rest day, either at his own request or at the request of the employer: s20

8. In Fu Hong Choi v. Ho King Restaurant Co. Ltd, the relevant parts of the employment contract provided as follows:

"3. The monthly wages of the employee is $4,500, tips, 9%. 12 monthly wages are distributed each year. No double pay or bonus are given at the year end.

4. I agree the proposal put forward by the company that I will continue to work on the rest days specified by the Labour Ordinance and am willing to accept wages in lieu of holiday given by the employer. The limit of wages in lieu of holiday has been included within my monthly wages.

5. The employee full understands the extraordinary circumstances of the business and consents to rest days arragned by the employer, totally __days each month.

6. I am also willing to accept the 10 statutory holiday, which includes, New Year Day.........The statutory holiday stated above is included with the rest days arranged by the employer mentioned in clause 5. If the number of rest days is still less than seventeen, employees can take 4 consecutive day leave....".

9. The claim in that case was for statutory holiday pay. It entailed examination of these contractual provisions to see if the claimant was afforded his statutory holidays entitlements. Leong J. was not asked to decide whether as a matter of law an employee can be paid for services rendered during his rest days. It is in this context that Leong J. examined the provisions in Part IV and Part Vlll of the Ordinance. He then went on to say this at p. 4 of his Judgment:

"Section 39 sets out the statutory holiday which an employee is entitled and the manner by which another day may be substituted for a statutory holiday. Subsection (4) clearly provides that the substituted holiday must not fall on a rest day or another statutory holiday.

Section 40A prohibits the payment of wages in lieu of holiday except when an employee's contract is terminated and it is in respect of a holiday which the employee has been granted but falls after the termination of his contract.

The effect of these sections is that the employer must provide a rest day each week for the employee, although the employee may work for the employer on his rest day on a voluntary basis. However, these rest days are in addition to the statutory holidays..."

10. The Presiding Officer has erroneously construed this part of Leong J.'s Judgment. When Leong J. referred to working on rest day "on a voluntary basis", he did not mean a gratuitous basis. The voluntary nature connotes the absence of duress or coercion. It does not entail working without pay. S. 40A does not bar payment for wages for work on rest day. It prohibits payment of wages in lieu of holiday. The definition of "Holiday" in s. 2 does not include a rest day. Accordingly, if an employee is willing to work on his or her rest day there is nothing in the Employment Ordinance that prohibits that employee from being renumerated for the services that he so rendered.

11. The Employment Ordinance does not stipulate the wages which must be paid for rest day works. This is a matter for agreement between the employer and the employee.

It is not disputed in this case that the appellant did work on rest days during the term of the contract. There is also no question that such work was for free in view of the respondent's own case that she allegedly paid $125 for every rest day. Had it not been for the alleged legal impediment, I have no doubt that the Presiding Officer would have found that such sum had not been paid. If $125 is the daily wage for each rest day, the total amount of wages for 32 rest days will come to the figure of $5,000. However, in the Form of Claim filed with the Labour Tribunal the appellant only claimed $4,000 under this head. In the premises, I allow the appellant's appeal in relation to this claim and order the respondent to pay the appellant the sum of $4,000. The respondent would also have to pay the costs of the appellant.







Representation:

Appellant in person

Respondent in person

