Wong Chui v. Gloucester Restaurant

DCCJ001400A/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO 1400 OF 1969

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Coram: W.S. Collier, in Court.

Date of Judgment: 26 August 1969

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JUDGMENT UPON APPLICATION FOR REVIEW

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1. Mr. Arculli, of counsel, in the first instance, took the point that my judgment herein was wrong in that the Employment Ordinance was a codifying enactment and that the common law was thereby ousted. However, in the course of his argument he said that, nonetheless, certain restrictive covenants could attach to a contract of service under the Employment Ordinance. In my judgment once that is admitted, that is the end of the argument that the Employment Ordinance is a codifying enactment.

2. It is common practice in Hong Kong for the contract of service of a foreman mechanic of a garage to provide that he shall not set up in business on his own in the immediate vicinity nor solicit customers of his employer upon termination of his contract. I cannot find anything in the Employment Ordinance which deals with such covenants. It is only right and proper that such restrictive covenants should be part of the terms of such a contract and I am therefore comfirmed in my original view that the Employment Ordinance and the common law can both apply to one contract of service.

3. Perhaps observing that his argument on this point was not being received with much favour, Mr. Arculli then said that he was going to take a point that would result in the plaintiff in this case succeeding, but on grounds somewhat different from those in my judgment. He submitted that because the defendant had purported to dismiss the plaintiff under item (b) of section 8 of the Employment Ordinance, but failed, that the common law only applied to the contract of employment and that the plaintiff was entitled to common law damages, which would amount to the said sum awarded as the result of my judgment. His purpose in so doing was that he could therefore, if successful, advise his clients that in future they should purport to dismiss under item (a) of section 8 by merely handing over "wages" within the meaning of the Employment Ordinance, under section 5 thereof.

4. Whether he would succeed or not in those circumstances is not a matter for me to decide, because, in my view, there is no substance in his submission.

5. In my judgment, the reference to the common law in sections 8 and 9 was a convenient method by which the draftsman could bring the common law grounds for termination of employment within the Ordinance without having to spell them out. In those circumstances one wonders why it was necessary to set out items (i), (ii) and (iii) in section 8, and (a) and (b) in section 9. To the best of my knowledge those are equally grounds for termination at common law.

6. However, in my judgment, a purported termination at common law does not thereby take the contract of employment out of the provisions of the Employment Ordinance.

7. Accordingly, I see no reason to alter my judgment herein.

8. It is indeed unfortunate that the Employment Ordinance does not deal with the hotel and restaurant trade, especially in view of the large number of workers employed therein. It would appear that a waiter is a manual worker, but is a chef a manual worker? It is apparently the practice to pay low "wages" in this industry. If I am wrong in my judgment, workers in this industry are afforded little protection by the Employment Ordinance.