So Yuet Sheung v. Link Step Ltd.

HCLA000060/1988

L.T.App.60/88
(Claim No. TST-694/88)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Deputy Judge Sharwood in Court

Date of Hearing: 21 November 1989

Date of Delivery of Judgment: 8 December 1989

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J U D G M E N T

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1. This is an appeal against the decision of the Acting Presiding Officer in dismissing the claim of the Appellant for maternity leave pay.

2. The Acting Presiding Officer found as facts that the Appellant began working for the Respondent as a piece rate machine sewing worker in the side-felling section on 7th April 1987. It was agreed that either party could terminate the employment contract. In December 1987, the Appellant filed a statutory declaration under S.14(2)(d) of Cap. 57, to the effect that she was pregnant with a second child. On 26th February 1988, because of insufficient side-felling work, the Appellant agreed to work in other sections at a fixed daily wage of $120. On 14th March, this was adjusted downward to $100. From 15th March 1988, it was agreed by the parties that the Appellant could do casual work elsewhere and return to the Respondent when the Respondent had side-felling work. Between 15th and 31st March 1988, the Appellant only had 2 days of side-felling work for the Respondent. In April 1988, the Appellant worked for the Respondent doing side-felling work on 5 days, namely on 2nd, 5th, 8th, 10th and 12th of April. In late April, the Appellant was informed by the Respondent that there would be 2 or 3 days work in May and thereafter, nothing until July.

3. On 2nd May 1988, the Appellant complained to the Labour Department. On 23rd May 1988, the Appellant was issued with a maternity leave certificate. Her maternity leave was expected to commence from 30th June 1988. On 7th July, the Appellant filed claim with the Tribunal. There is no dispute that the Appellant served all necessary documents in relation to maternity leave.

4. The Acting Presiding Officer dismissed the Appellant's claim for maternity leave on the grounds that she did not take maternity leave as is required by S.14(2), that she was not employed by the Respondent as at the date of filing claim, and that there was no continuous contract of employment.

5. It was submitted, inter alia, on her behalf, that by S.14(2)(b) of Cap. 57, the employment contract which she had earlier entered into did not have to be subsisting. It was sufficient that she had been employed under such a contract at any time before the commencement of her maternity leave. Since the Appellant had been employed by the Respondent under a continuous contract for 40 weeks as at 12th January 1988, the fact that her maternity leave was expected to commence on 30th June 1988, was irrelevant, even if she had not been continuously employed up to 30th June.

6. Section 12 (1) of Cap. 57 provides as follows:-

"12. (1) A female employee who has been employed by the same employer under a continuous contract for a period of not less than 26 weeks shall be entitled to maternity leave under this Part."

7. Section 14 (1) and (2) (a) provide as follows:-

"14. (1) A female employee shall not be entitled to wages in respect of the period of her maternity leave except as provided in this section or as provided in her contract of employment if such contract provides for paid maternity leave on terms better than in this section.

(2) Subject to subsection (6), an employer shall pay a female employee maternity leave pay for the period of maternity leave taken by her and to which she is entitled under section 12(2)(a) and (c) if she -

(a) has been employed by that employer under a continuous contract for a period of not less than 40 weeks before the expected date of her commencement of maternity leave."

8. The first schedule to the Employment Ordinance provides as follows:-

"1. (a) The provisions of this Schedule are to ascertain whether or not any contract of employment is a 'continuous contract' for the purposes of this Ordinance.

(b) ....................

2. Subject to the following provisions, where at any time an employee has been employed under a contract of employment during the period of 4 or more weeks next preceding such time he shall be deemed to have been in continuous employment during that period.

3. (1) For the purposes of paragraph 2, no week shall count unless the employee has worked on 3 days or more in that week .........."

9. It is clear that the Appellant's continuous employment ceased on 26th February 1988. There is no dispute that it exceeded 40 weeks. The question is whether S.14(2)(a) can be interpreted as meaning that the continuous contract must immediately precede the expected date of the commencement of maternity leave, or whether it need merely precede such date.

10. In my view, the only sensible construction which can be placed upon S.14(2)(a) is that the requisite continuous contract must immediately precede the expected date of commencement of maternity leave. If that were not the case, a female could make a maternity leave pay claim on all employers for whom she had worked for more than 40 weeks, before her pregnancy.

11. The whole purpose of section 14 is that a continuous contract must have been in existence at the time that the maternity leave was taken. As I have said, the continuous contract between the parties in this case came to an end in February 1988. Even if the Appellant was technically still an employee on 30th June, she certainly did not take maternity leave. In fact, the evidence suggests that she only worked for the Respondent for some 7 days in the 15 weeks preceding 30th June.

12. In these circumstances, it is unnecessary to deal with the other matters raised by counsel. The appeal is dismissed.

13. There will be no order as to costs, except that the Appellant's costs will be taxed in accordance with Legal Aid Regulations.

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Representation:

Mr K. H. Kwang instructed by Messrs. Chan & Kong for Appellant.

Respondent in person.

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