Unitex Ltd v. Li Foon Lok and Others

HCLA000069/1983

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Court.

Dates of hearing: 12 April & 8 May 1984

Date of delivery of judgment: 8 May 1984

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JUDGMENT

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1. This is an appeal pursuant to leave granted on the 14th February 1984 from a decision of the Presiding Officer of the Labour Tribunal made on the 13th December 1983. On that date awards were made to the respondents for wages in lieu of notice and severance pay. The appellant seeks to set aside the order for severance pay.

2. The law relating to severance payments is contained in Part VA of the Employment Ordinance Cap. 57. Severance pay in this case was awarded on the basis of lay-off under Section 31E. Section 31E(1) provides:-

"    Where an employee is employed under a contract on such terms and conditions that his remuneration thereunder depends on his being provided by the employer with work of the kind he is employed to do, he shall for the purposes of section 31B(1) be taken to be laid off where the employer does not provide such work for him on at least a total of 12 normal working days in any period of 4 consecutive weeks and whereby he is not entitled to any remuneration under the contract for such period:

Provided that any period during which an employee is not provided with work because of a lockout by his employer, or as a result of a rest day or holiday, shall not be taken into account in determining whether an employee has been laid off.".

Section 31A defines ''week":-

"week" means the period between midnight on Saturday night and midnight on the succeeding Saturday night.

3. Mr. Waung who appeared for the appellant challenges the award for severance  pay on the grounds that the calculation was not made in accordance with a period of four consecutive weeks as laid down in the Ordinance. It appears from the decision of the Presiding Officer that severance pay was calculated from the 1st July 1983 until the date of termination of employment on the 29th July 1983 when it was alleged that the appellant did not provide work on at least 12 normal working days. However, this is not wholly clear for the Presiding Officer refers to charts prepared by the Tribunal Officer in respect of the respondents' attendance during the whole month of July 1983.

4. Mr. Waung submitted that the calculation should be from midnight on the 25th June 1983 to midnight on the 23rd July 1983. During this period Mr. Waung contends that the appellant did not provide work on 10 normal working days and therefore liability did not accrue under the Ordinance. It is not entirely clear what is the true position for in his decision the Presiding Officer refers to the 1st and 16th July 1983 as being normal working days and in the summary of facts on page 3 the 15th and the 23rd July 1983 are described as normal working days. Unfortunately no specific findings of fact have been made by the Presiding Officer with regard to the date of termination of the respondents' employment and the period of normal working days.

5. In the absence of such findings I shall remit the case to the Presiding Officer pursuant to Section 35(1)(c) of the Labour Tribunal Ordinance with directions that he sets out answers to the following questions:-

Representation:

Mr. W. Waung (Deacons) for Appellant.

Mrs. J. Barnes (William Sin & Co.) assigned for 7th Respondent.

1st-6th & 8th Respondents in person.