Tsang Sau Yue and Another v. Lucci Creation Ltd
Read the full judgment text of DCCJ 379/2003 on BabelCite. This District Court judgment was delivered on 16 March 2004.
1. By this action, the 1st and 2nd Plaintiffs ("P1 and P2") claimed for various payments under their employment agreements with their employer, the Defendant ("D"), and under the Employment Ordinance Cap.57 ("Ordinance"). P1 and P2 claimed that they were constructively dismissed by D when it failed to pay their wages for August and September 2002.
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DCCJ000379/2003 DCCJ379/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 379 OF 2003 ____________
(By original action) ____________
____________ Coram: Her Honour District Judge Marlene Ng in Court Date of Hearing: 8 March 2004 Date of Judgment: 16 March 2004 _______________ J U D G M E N T _______________ Introduction 1.By this action, the 1st and 2nd Plaintiffs ("P1 and P2") claimed for various payments under their employment agreements with their employer, the Defendant ("D"), and under the Employment Ordinance Cap.57 ("Ordinance"). P1 and P2 claimed that they were constructively dismissed by D when it failed to pay their wages for August and September 2002. 2.P1 and P2 in fact first made their claim against D on 15th November 2002 in Labour Tribunal proceedings LBTC10919/2002 ("LT Proceedings"). The said proceedings were transferred to this court pursuant to the order of Presiding Officer dated 6th January 2003. 3.D denied P1 and P2's claims and counterclaimed against them for damages for breach of their employment agreements. D also claimed for an account of various monies allegedly received by P1 and P2 for their use. In respect of P1, D also claimed for an account for the sum of HK$400,000.00 appropriated by the 3rd Defendant by counterclaim, Mr Tse Yun Sang ("Tse"), allegedly with P1's assistance and for D's furniture and equipment removed to other premises without D's consent. 4.Tse was adjudicated bankrupt on 13th February 2003 and therefore all proceedings against him have been stayed. D was formerly represented by Messrs Wong, Hui & Co. By an order dated 22nd December 2003, Master K W Wong granted leave to D to act in person. D's director, Mr Terukazu Miyake ("Miyake"), applied to represent D. D was absent at the hearing before Master K W Wong on 20th January 2004 when the date of the trial hearing was fixed. D was again absent at the trial hearing. 5.Mr Ng, solicitor for P1 and P2, informed the court at the trial that P1 and P2's solicitors had informed D of the date of the trial hearing and he gave an undertaking to the court to file an affirmation of service of such notice on or before 12:00 noon on 9th March 2004. On the aforesaid premise, I allowed the trial hearing to proceed. 6.P1 and P2 both gave evidence. By an order dated 28th July 2003, Master Tam granted leave for witness statements to stand as the witnesses' evidence-in-chief. P1's claims 7.P1 said she was continuously employed by D as an accounting officer since 1st October 1994 under a letter of employment dated 3rd October 1994 (exhibit P1). She denied that after 1st October 1994 she had ceased employment with and was re-employed by D as alleged in the Defence and Counterclaim. 8.P1 explained that on or about 11th May 1995, she tendered one month's written notice of resignation to D and indicated an intention to leave D on 10th June 1995. Thereafter, D through its managing director, Miyake, negotiated with P1 and persuaded her to stay on. Miyake orally represented to and/or promised and/or agreed with P1 in early June 1995 that she would be transferred to the post of administration clerk as from 1st July 1995, that D would pay her outstanding salary and bonus up to 10th June 1995, that P1 would be entitled to no pay leave from 11th to 30th June 1995 and that D would still treat P1 as having been employed by D as from 1st October 1994. 9.D confirmed in writing on 7th March 1996 that P1 had been employed by D as an administration clerk since 1st October 1994 (exhibit P2). Further, D arranged provident fund for all its employees including P1 with Hang Seng Life Limited in about February 1999. D notified Hang Seng Life Limited that P1's "Date Joined Employer" and "Date Vesting Commences" were both 1st October 1994 (exhibits P13 and P3). 10.P1 denied she resigned on 7th March 1996 and was re-employed by D in or about late March or early April 1996 as alleged in the Defence and Counterclaim or at all. Subsequently, on or about 1st July 2000, P1 was promoted to the post of assistant manager of D's production department, which handled purchasing, shipping, production and costing matters. P1 was under the supervision of D's general manager, Tse, and Miyake. 11.In the circumstances, I accept that D had all along treated P1 as having a continuous employment with D since 1st October 1994 by reason of D's express representation and/or promise to P1 and P1 acted on such representation/promise. 12.As admitted by D in the Defence and Counterclaim, P1's pay date for her monthly wages of HK$16,100.00 was on the 26th day of each and every calendar month. P1 said D failed and/or refused to pay her wages for August and September 2002 respectively on 26th August and 26th September 2002 or at least not later than 7 days thereafter. Therefore, P1 (as she was entitled under section 10A(1) of the Ordinance) by a letter dated 8th October 2002 ("Dismissal Date") (exhibit P6) gave notice to D inter alia that P1 had been constructively dismissed by reason of D's aforesaid failure to pay her wages. I therefore find that P1 was dismissed by D on the Dismissal Date. 13.P1 said (and I accept) that as at the Dismissal Date, she had been continuously employed by D for a period of 8 years and 7 days. Hence, P1 claims she is entitled to and I find that D should pay P1 a sum of HK$35,835.48 being P1's outstanding wages for August 2002 (HK$16,100.0), September 2002 (HK$16,100.00) and 1st to 7th October 2002 (HK$16,100.00 x 7/31 = HK$3,635.48). 14.As no notice of termination was given to P1 by D, P1 was entitled to receive 1 month's wages in lieu of notice in the sum of HK$16,100.00. Under the Ordinance, P1's employment contract was deemed, in the absence of evidence to the contrary, to be a month-to-month contract and as such, the notice period required to terminate P1's employment contract was not less than 1 month. Her contract had no express provision on the requisite notice period for termination. 15.P said that as at the Dismissal Date, P1's long service payment amounted to HK$86,072.51 (HK$16,100.00 x 2/3 x [8 + 7/365]). After deduction of D's provident fund benefits of HK$22,775.76 and mandatory provident fund benefits in the sum of HK$9,696.08 (the calculations of which were admitted in paragraph 16 of the Defence and Counterclaim) (see section 31Y of the Ordinance), P1 claimed and I find that she is entitled to long service payment under sections 31R(1)(a)(i) and 31V(1)(a) of the Ordinance in the sum of HK$53,600.67, being HK$86,072.51 - HK$22,775.76 - HK$9,696.08. 16.D admitted in paragraph 17 of the Defence and Counterclaim that the leave year for calculating annual leave of all its employees, including P1, was the period from the 1st day of January to the 31st day of December. D also accepted in paragraph 17 of the Defence and Counterclaim that pursuant to section 41D(2) of the Ordinance, P1 was entitled to be paid by D a sum equal in amount to that which bears to the notional leave pay the same proportion as the number of days in the final employment period bears to 365. 17.P1 said exhibit P12 given to her by D's accounts department stated that P1 had 12 days' annual leave for the year ending 31st December 2001. As P1 was entitled to an increment of 1 day of annual leave for each additional year of service, P1 said she was entitled to 13 days of annual leave in 2002. Mr Ng submitted that this was consistent with the provisions in section 41AA(2) of the Ordinance and the Table thereto. I find as a fact that P1 was entitled to 13 days' annual leave for the year ending 31st December 2002. I accept P1's claim that D should pay her pro-rated annual leave pay in the sum of HK$5,278.64 (HK$16,100.00 x 12 x 1/365 x 13 x 280/365). There are 280 days from 1st January to 7th October 2002. 18.Exhibit P1 (ie P1's initial employment agreement with D) provides inter alia that P1 was entitled to 14 months' salary per year. The payment period was from the 1st day of January to the 31st day of December. P1 said that since the commencement of P1's employment in 1994 until the year ending 31st December 2000, P1 received year end payment equivalent to 2 months' wages from D each year but D failed and/or refused to so pay her in the year from 1st January to 31st December 2001 in the sum of HK$32,200.00. P1 said D further failed and/or refused to pay any proportion of year end payment to P1 calculated from 1st January 2002 up to 7th October 2002 in the sum of HK$24,701.37 (HK$16,100.00 x 2 x 280/365). P1 explained that despite having chased D, D alleged cashflow problems and deferred payment of year end payment to her. In fact, D's other employees also failed to receive year end payment for the year ending 1st December 2001. I find that it was a term of P1's employment agreement with D that she was entitled to year end payment equivalent to 2 months' wages for the relevant payment period. P therefore claimed and I find that she is entitled under sections 11D and 11F of the Ordinance to year end payment in the sum of HK$56,901.37, being HK$32,200.00 + HK$24,701.37. 19.D in paragraph 22 of the Defence and Counterclaim admitted that it had deducted the sum of HK$755.00 from P1's wages in November 2000 purportedly for P1's contribution to the provident fund and that D failed and/or refused to make payment of the same on P1's behalf. In the circumstances, I find on D's admission that P1 is entitled to the sum of HK$755.00. 20.P1 said she paid travelling and miscellaneous expenses on D's behalf in the course of her employment with D in the total sum of HK$146,419.00 (at the exchange rate of HK$1.00 : RMB￥1.00) for the period from October 2001 to October 2002 (exhibits P15, P16, P17 and P18). P1 explained that whenever she incurred expenditure on D's behalf in the course of her work, she would complete and sign a petty cash voucher and submit such voucher with the supporting documents to D's accounts department for reimbursement. It was D's practice not to make advance payment to employees for company's expenditure but to require employees to pay for such expenditure first and then reimburse the employees on production of vouchers and receipts. P1 said that in accordance with such practice, D had reimbursed P1 for all expenditure incurred by her on D's behalf prior to October 2001 although there was no fixed time as to when reimbursement would be made. From October 2001, D ceased to reimburse P1 for expenditure incurred by her on D's behalf. P1 continued to incur expenditure on D's behalf in the course of her work because she never thought that D would fail to reimburse her. P1 had chased D's accounts department and Miyake for reimbursement but they asked her to wait. 21.For expenditure incurred in October to December 2001, P submitted original vouchers and receipts to Ms Janice Lai, assistant manager of D's accounts and administration department, for reimbursement. Since D failed and/or refused to reimburse P1, so from January 2002 onwards P1 kept the original vouchers and receipts and only tendered copies to D's accounts department. In fact, Miyake told P1 at about the end of 2001 that due to the poor economy, D had to delay reimbursement to her until further notice and he further orally requested P1 to submit copies of receipts only. 22.The relevant petty cash vouchers for P1's claim for reimbursement of expenses have been summarised in the schedule to Mr Ng's written opening submissions. I accept P1's evidence and find that D is liable to reimburse P1 for expenses incurred by her on D's behalf in the sum of HK$146,419.00. 23.In light of the aforesaid findings, I find it unnecessary to deal with P1's alternative claim for employment protection under Part VIA of the Ordinance. 24.P1 denied that she was responsible for direct arrangement and supervision of P2's work or that P2 was P1's assistant as alleged in the Defence and Counterclaim or at all. In fact, P1 was stationed in D's Hong Kong office and she would only attend D's factory in Zhongshan, Mainland China ("Factory") only if necessary. In about July 2002, the Factory stopped production as it did not have sufficient orders from customers. As D's responsible person, Miyake had full knowledge of the operation of the Factory. During P1's employment with D, Miyake never asked P1 why she did not go to the Factory or take issue with her on her alleged failure to attend the Factory. P1 was not responsible for the operation of the Factory and she had no knowledge of and had never withheld any resignation letters of staff of the Factory as alleged in the Defence and Counterclaim or at all. 25.P1 denied D's allegation its Defence and Counterclaim that P1 perpetrated a fraud on D, thus causing D to suffer a loss of inter alia HK$400,000.00. In or about early January 2000, D's management decided to establish a company called Elta Limited ("Elta") and nominated P1 as one of Elta's directors and shareholders. Elta's authorised signatories were P1 and Tse, but the management and daily operation of Elta were under the control of Miyake and Tse. D provided all Elta's financial resources. 26.D through Miyake instructed P1 to follow the instructions given by Tse and/or Miyake from time to time. On a date which P1 now had no recollection, Tse orally requested P1 to jointly sign a cheque in the sum of HK$400,000.00 for (according to P1's best recollection) payment of the Factory's operational expenses and outgoings. Such payment was supported by an Elta payment voucher. P1 had no knowledge of any alleged fraud or misappropriation in respect of the said sum at the material time. At all material times, all accounting and financial documents including Elta's cheque books were kept by D's account clerk, Ms Sandy Ho Wai Ping, and not by P1. Hence, P1 had neither given to Miyake any cheque stub nor kept any key to any locked filing cabinet holding Elta's documents as alleged in the Defence and Counterclaim or at all. 27.P1 denied the allegations in the letter from D's solicitors dated 26th March 2003 (exhibit P11) to P1 inter alia that Tse and P1 withdrew HK$400,000.00 by cheque in favour of Tse from Elta's account with Hang Seng Bank Limited on 21st July 2001. It was suggested in the letter that such alleged conduct constituted criminal conduct and that D would report to the police and commence civil recovery action accordingly. P1 found it surprising that D raised such allegations for the first time only about one and a half years after the alleged misappropriation in mid-July 2001 and only after P1 instituted her labour claim. P1 said such allegation was merely D's excuse to avoid payments due to her. 28.P1 also denied that she caused Elta to subscribe for shares in Elta Handbags Industrial Limited ("Elta Handbags") without approval. In fact, the subscription was completed pursuant to oral instructions given by Miyake and hence D had full knowledge of the transaction. 29.P1 also denied that she caused Elta to lease certain Tsim Sha Tsui offices without approval. She said that Miyake gave instructions for both the leasing and termination of the lease of the said Tsim Sha Tsui offices and hence D had full knowledge of the transactions. P1 was only responsible for signing the relevant lease under Miyake's instructions on D's behalf by reason of her position as Elta's director. In any event, D had never taken any issue with her on the leasing of the Tsim Sha Tsui offices or in respect of the alleged removal of D's furniture and equipment until the filing of the Defence and Counterclaim. 30.P1 denied that she made any unauthorised payments to Madam Lo King ("Lo"). P1 accepted that Lo is her relative and a Chinese national. Since PRC laws require that the legal representative of a business entity must be a Chinese national, D appointed Lo to act as the legal representative of the Factory at a monthly consultancy fee of HK$2,000.00. The sum of HK$10,000.00 referred to in the Defence and Counterclaim was in fact the consultancy fee payable to Lo for the period from January to May 2002. At all material times, D's Miyake had full knowledge of such payments and had never raised any objection thereto as alleged or at all. P2's claims 31.D admitted in paragraphs 26, 27 and 29 of the Defence and Counterclaim that P2 had been continuously employed by D since 15th June 2000 under an oral agreement and that it was expressly agreed that P2's employment was to commence on 15th June 2000 for one month renewable from month to month, that she was initially employed as a clerk, that her working hours were from 9:00 am to 5:00 pm, that her overtime pay was HK$40.00 per hour, that the notice period for termination of employment was one month and that the pay day was on the 26th day of each and every calendar month. P2 said that she was all along employed as a clerk. 32.P2 said that at first her monthly wages at HK$6,000.00 were paid by D by autopay deposit into her bank account (exhibit P33). Her monthly wages increased to HK$8,500.00 in June 2002 and D paid her wages by cash cheque deposit into her bank account. P2 explained that D made 2 cash cheque deposits of HK$5,700.00 each into her bank account on 29th June and 30th July 2002 respectively. Subsequently, D deposited HK$4,750.00 by cash cheque as balance payment of P2's salary for 2 months. Then on 19th August 2002, D deposited HK$8,075.00 as P2's July 2002 wages (although her full monthly wages were HK$8,500.00) by cash cheque into P2's bank account. This was D's last wage payment to P2. P2 said that D failed and/or refused to pay P2's wages for August and September 2002 notwithstanding that the same was due for payment under section 23 of the Ordinance, ie on 26th August and 26th September 2002 respectively or at least not later than 7 days thereafter. 33.By the same reasoning as applicable for P1 discussed above, I find that P2 was entitled under section 10A(1) of the Ordinance to terminate her employment with D without notice or payment in lieu of notice. Thereafter, by a letter dated 8th October 2002 (exhibit P22), P2 gave notice to D inter alia that she had been constructively dismissed on the Dismissal Date by reason of D's failure to pay wages to her for more than one month. I therefore find that P2 was dismissed by D on the Dismissal Date. 34.P said and I accept that as at the Dismissal Date, P2 had been continuously employed by D for a period of 2 years 3 months and 22 days and her monthly wages were HK$8,500.00. Therefore, P2 claimed and I find that D is liable to pay her outstanding wages in the sum of HK$18,919.35, being wages for August 2002 (HK$8,500.00), September 2002 (HK$8,500.00) and 1st to 7th October 2002 (HK$8,500.00 x 7/31 = HK$1,919.35). 35.P2 said that she was dismissed by redundancy on the Dismissal Date because the requirements of D's business for P2 to carry out work in the place where P2 was so employed had ceased or diminished or were expected to cease or diminish. As far as P2 was aware, after she was dismissed, D did not employ any person as her replacement. In October 2002, D was still in operation although the number of employees was reduced to 1 account staff, 1 merchandiser, P1 and P2. The other employees had left. 36.Section 31B(1)(a) of the Ordinance provides inter alia that where an employee employed under a continuous contract for a period of not less than 24 months ending with the relevant date is dismissed by his employer by reason of redundancy, the employer shall, subject to Part VA and Part VC, be liable to pay to the employee a severance payment calculated in accordance with section 31G. Section 31B(2) of the Ordinance provides inter alia for the purposes of Part VA an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to the fact that (a) his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed or in the place where the employee was so employed or (b) the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was so employed, have ceased or diminished or are expected to cease or diminish. 37.Mr Ng submitted that the aforesaid are general provisions. He further submitted that in making a claim for severance payment, the employee should establish that he had been dismissed by the employer. Section 31D(1)(c) of the Ordinance provides inter alia that for the purpose of and subject to Part VA, an employee shall be taken to be dismissed by his employer if, but only if, the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer's conduct. Section 10(c) of the Ordinance provides inter alia that an employee may terminate his contract of employment without notice or payment in lieu on any other ground on which he would be entitled to terminate the contract without notice at common law. 38.Mr Ng submitted that failure by the employer to pay to the employee wages when due amounted to constructive dismissal under common law and he cited the judgment of Mr Justice Yeung (as he then was) in 泰星集團有限公司和貴族(香港)水晶有限公司及尹潔心和馮美玲 HCLA48/1998 (unreported, 7th October 1999) in support of such contention. I accept P2's evidence and find that P2 was constructively dismissed by D on the Dismissal Date. 39.Section 31Q provides inter alia that for the purposes of Part VA an employee dismissed by his employer shall, unless the contrary is proved, be presumed to have been so dismissed by reason of redundancy. Mr Ng submitted that this presumption of redundancy has been subject to the court's interpretation in To Kin Wah & anor v Shui Hing Co Ltd [1985] 1 HKC 239 and Wan Hung Shu t/a Paris Wan's Co v Li Chun Yam [1993] 2 HKC 714. In To Kin Wah's case (supra), Mayo J held that under the Ordinance, it was necessary for the employee not only to prove that he had been dismissed but also to prove that he had not been dismissed for cause. However, this was expressly not followed in Wan Hung Shu's case (supra) where the court held that the onus was on the employer to prove that the employee's dismissal was not by reason of redundancy. Rhind J held that section 31Q of the Ordinance was the only presumption to be considered in determining entitlement to a severance payment. The employee only had to show that he was dismissed by his employer for it to be presumed in his favour, unless the employer can show to the contrary, that the employee was dismissed by reason of redundancy. There is no requirement that before the employee can take advantage of section 31Q he must first of all rebut a presumption that he was dismissed for cause. There is no justification for implying into section 31D of the Ordinance any presumption that a dismissal by an employer is justified 40.Since I have found that P2 had been constructively dismissed by D, and D being absent and having led no evidence to rebut the presumption under section 31Q of the Ordinance, I find that P2 had been dismissed by reason of redundancy and is entitled to a severance payment. 41.P2 said that as at the Dismissal Date, P2's severance payment pursuant to section 31G(1) of the Ordinance amounted to HK$13,103.20 (HK$8,500.00 x 2/3 x [2 + 114/365]). After deduction of D's provident fund benefits in the sum of HK$228.94 and mandatory provident fund benefits in the sum of HK$5,186.00 (the calculation of which was admitted in paragraph 35 of the Defence and Counterclaim), P2 claimed and I accept that she is entitled to severance payment in the sum of HK$7,688.26 (HK$13,103.20 - HK$228.94 - HK$5,186.00). 42.Identical to P1's case, D accepted that P2 was entitled to pro-rated annual leave pay, using the leave year of the 1st day of January to the 31st day of December. P2 said (and I accept) that she was entitled to 8 days' annual leave for the leave year ending 31st December 2002 (exhibit 29 prepared by D's accounts department and exhibit P23 prepared by P2). P2 said she accumulated 3.5 days' annual leave from the leave year ending 31st December 2002 (exhibit 23). She took 7.5 days' annual leave in the year ending 31st December 2002 (exhibit 29). In the circumstances, I accept there were 4 days' annual leave not taken by P2 by the Dismissal Date. P2 claims and I find that she is entitled to pro-rated annual leave pay in the sum of HK$597.18, being [HK$8,500.00 x 12 x 1/365 x 8 x 280/365] - [HK$8,500.00 x 12 x 1/365 x 4]. 43.P2 said that D terminated P2's employment without giving any notice to her. For the same reasons as applicable to P1, I find that D is liable to pay one month's wages in lieu of notice in the sum of HK$8,500.00. 44.P2 said that her employment arrangement with D was that she was entitled to 14 months' wages per year calculated from the 1st day of January to 31st day of December. P2 said that she had received HK$6,000.00 as pro-rated year end payment (based on her monthly wages of HK$6,000.00) from D for the payment year ending 31st December 2000. Such sum was deposited by D into P2's bank account on 28th December 2000 (exhibit P33). Although by that time her period of service was less than half a year, D treated P2 as having completed half year of service. P2 said D failed and/or refused to pay her year end payment for the payment period from 1st January to 31st December 2001 in the sum of HK$12,000.00 (HK$6,000.00 x 2). D further failed to pay any proportion of year end payment to P2 calculated from 1st January to 7th October 2002 in the sum of HK$13,041.10 (HK$8,500.00 x 2 x 280/365). I find that it was a term of P1's employment with D that she was entitled to year end payment equivalent to 2 months' wages for the relevant payment period. In the circumstances, P2 claimed and I find that D is liable to pay to P2 year end payment of HK$25,041.10, being HK$12,000.00 + HK$13,041.10. 45.D in paragraph 40 of the Defence and Counterclaim admitted that it had deducted the sum of HK$300.00 from P2's wages in November 2000 purportedly for P2's contribution to the provident fund and that D failed and/or refused to make payment of the same on P2's behalf. In the circumstances, I find on D's admission that P2 is entitled to the sum of HK$300.00. 46.P2 claimed that she paid on D's behalf a total sum of HK$839.00 in September 2002 (exhibits P20 and P36) as evidenced by receipts for travelling, telephone and other expenses. P2 explained that once she collated various expenditure receipts, she would submit the same to D's accounts department for reimbursement. In fact, similar claims for reimbursement of expenditure incurred by P2 on D's behalf prior to these outstanding items had all been reimbursed by D to P2. P2 therefore claimed for reimbursement of and I find that D is liable to pay P2 the sum of HK$839.00. 47.Pursuant to section 17 of the Ordinance, P2 said she was entitled to be granted not less than 1 rest day in every period of 7 days which shall be in addition to any statutory holiday or alternative holiday or substituted holiday to which she was entitled under section 39. D required P2 to work on 24th February and 14th April 2002, both of which were P2's rest days. P2 said that D required her to work on 24th February 2002 by returning to the office to have a meeting with a customer (exhibit P23) and on 14th April 2002 when she had to attend the Factory, hence her work card (exhibits P28 and P23) showed between 13th and 15th April 2002 an entry for "ZS" (which meant Zhongshan or the Factory which was situated in Zhongshan). P2 also said that, contrary to section 19(3) of the Ordinance, D failed to substitute other rest days for the aforesaid 2 rest days on which P2 was required to work. P2 therefore claimed and I find that she is entitled to the sum of HK$586.90 (HK$8,500.00 x 1/28 + HK$8,500.00 x 1/30) being rest day payment for the 2 rest days on which she was required by D to work. 48.P2 claimed for 32 hours of overtime pay for the period from March to July 2002 (exhibits P28 and P35). P2 said she marked her overtime work on her work card (exhibit P28) and then submitted petty cash vouchers (exhibit P35) to D's accounts department to claim for overtime pay. P2 said that previously she had also done overtime work and had received payment calculated on the basis of HK$40.00 per hour. P2 noted that the petty cash voucher for overtime pay dated 1st July 2002 showed a miscalculation for the entry for 29th June 2002 which should be for 1 hour of overtime work, ie HK$40.00 and not HK$80.00 (exhibit P35). I find that P2 had done 31 hours of overtime work from March to July 2002. P2 therefore claimed and I find that she is entitled to overtime pay of HK$1,240.00 (HK$40.00 x 31 hours). 49.In light of the aforesaid findings, I find that it is unnecessary to deal with P2's alternative claim for employment protection under Part VIA of the Ordinance. 50.P2 denied that she was P1's assistant and that her work was arranged or supervised by P1. P2 was stationed in the Hong Kong office and her scope of work (as seen in exhibits P21 and P34) did not include working at the Factory. P2 would only attend the Factory under exceptional circumstances. 51.As far as P2 was aware, the Factory stopped production in July 2002 because it did not have sufficient orders from customers. As D's responsible person, Miyake was well aware of the operation of the Factory. P2 denied that she failed to follow Miyake's instructions and refused to go to the Factory to work there. Miyake had never asked P2 why she did not go to the Factory or taken issue on the same as alleged in the Defence and Counterclaim or at all. P2 was only a low-level employee and she had no authority to receive or withhold (and she did not know of) any resignation letter by the Factory's staff as alleged or at all. 52.D alleged in the Defence and Counterclaim that without D's consent P2 communicated with customers to provide samples and requested cash payment from customers by registered mail. It was further alleged that P2 failed to pay over monies received from customers to D. P2 denied such allegations. 53.P2 said that all her correspondence with D's customers was conducted with D's approval and knowledge. She never demanded any of D's customers to make any payment to her by cash through registered mail as alleged or at all. The charges for handbag samples, freight and other expenses in relation thereto were paid by D. All cheques for payments were issued by D and signed by Miyake on D's behalf. Therefore D had full knowledge of these matters. P2 had never received any payment from any of D's customers and had never failed to account for payments received as alleged or at all. 54.D through its solicitors sent a letter dated 26th March 2003 to P2 (exhibit P25) alleging that during the period from May to August 2001, P2 communicated with several of P's customers without D's prior authorisation and consent and sent handbag samples to these customers. It was further alleged that P2 requested these customers to send cash or remit payment to Hang Seng Bank Limited account no.374-103828-201 in payment for the samples. D also threatened to report to the police and commence civil recovery action. P2 denied the aforesaid allegations. Further, the said bank account was in fact D's bank account. Had P2 wanted to pocket monies to be paid by the customers, she would not have asked for the monies to be paid into D's bank account. P2 claimed that such allegation was merely D's excuse to avoid making payments due to her. These allegations were only raised almost 2 years after their alleged occurrence and only after P2 instituted her labour claim. 55.In respect of D's allegation in the Defence and Counterclaim that D tried to recruit a replacement for P2 by placing an advertisement in the Oriental Daily News on 26th November 2002, P2 said the advertisement was in fact for recruiting a shipping and accounting staff. Since P2 was only employed as a clerk, the advertisement was clearly not for her replacement. Conclusion 56.In the circumstances, I grant judgment in favour of P1 against D in the total sum of HK$314,890.16 (ie HK$35,835.48 + HK$53,600.67 + HK$5,278.64 + HK$16,100.00 + HK$56,901.37 + HK$755.00 + HK$146,419.00). I also award interest to P1 against D as follows :
57.I also grant judgment in favour of P2 against D in the total sum of HK$63,711.70 (ie HK$18,919.35 + HK$7,688.26 +HK$597.18 +HK$8,500.00 + HK$25,041.10 + HK$300.00 + HK$839.00 +HK$586.90 + HK$1,240.00). I also award interest to P2 against D as follows :
58.No evidence having been led by D in support of D's counterclaim against P1 and P2, such counterclaim is dismissed. 59.There is no reason why costs should not follow event. I therefore grant a costs order nisi that D do pay P1's and P2's costs of the action and of the counterclaims against P1 and P2 (together with all costs reserved, if any) to be taxed if not agreed. As P1 and P2 are legally aided, their own costs should be taxed in accordance with Legal Aid Regulations.
Representation: Mr Ng Man Kin of Messrs Kwok, Ng & Chan for the 1st and 2nd Plaintiffs. The Defendant unrepresented and absent. |
Cases cited in this judgment