Lai Yuet-ming v. Ng Wah
Read the full judgment text of DCMP 1/1980 on BabelCite. This District Court judgment.
1. This is an appeal from a decision of the Labour Tribunal awarding the Claimant $2,430 made up of damages for wrongful termination of contract, annual leave pay and holiday pay.
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DCMP000001/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON APPELLATE JURISDICTION LABOUR TRIBUNAL APPEAL NO. 1 OF 1980. -----------------
----------------- Coram: E.C. Barnes, D.J. Date of Judgment: 22nd July, 1980. ----------------- JUDGMENT ----------------- 1. This is an appeal from a decision of the Labour Tribunal awarding the Claimant $2,430 made up of damages for wrongful termination of contract, annual leave pay and holiday pay. 2. One ground of appeal challenges the Tribunal's jurisdiction. The Respondent argues that no employer-employee relationship existed between the parties. Whether such a relationship exists is a question frequently in issue before labour tribunals and the law reports contain a multitude of decisions in which various tests have been applied in determining the issue. In this case, however, there are sufficient indicia of an employment relationship in the summary of facts prepared by the Tribunal Officer before the hearing. Under the Labour Tribunal Ordinance that officer is required to prepare such a summary containing the facts agreed by, and those in dispute between, the parties. According to that summary which was read out at the hearing, without challenge from the Respondent as to its accuracy, the Respondent (1) alleged "that the Claimant resigned on 5.10.79 because he could not find a replacement on his rest days and one of the terms of employment was that he should find his own replacement if he wanted to take days off", and (2) admitted liability for, but not the quantum of, "statutory holiday pay" and "pro rata annual leave" claimed. Added to that were the following allegations by the Respondent when cross-examining the Claimant:-
Whatever test was applied the answer would be the same on that evidence, namely, that an employment relationship existed between the parties. I therefore find no merit in that ground of appeal. 3. The other ground concerns the quantum of the award. The Presiding Officer's finding of wrongful determination of the contract has not been seriously challenged and I can see no error of law made by him in so concluding. Nor can I see any error made by him in his calculation of the quantum of damages he awarded under that head. It has, however, been submitted that the awards in respect of annual leave pay and holiday pay were wrong. 4. Section 41D(2) of the Employment Ordinance ("the Ordinance") insofar as it is material in this case provides as follows:-
5. Section 3 of the Ordinance provides:-
The relevant provisions of the First Schedule read as follows:-
6. The Claimant's period of employment began on 3 April, 1979. He was dismissed on 4 October, 1979. He was employed as a taxi driver and his work record was as follows:-
7. The Appellant ("the employer") argued that in order to qualify for annual leave pay under s.41D(2) the period of employment of the Claimant ("the employee") had to be three months or more under a continuous contract of employment terminating on 4 October, 1979; that as the employee had worked only nine days in August there must have been at least one week in that month which "did not count" by virtue of the provisions of clause 3 of the First Schedule; that the employee had therefore been employed for a period well short of three months under a continuous contract at the date of termination; and that consequently the employee did not qualify for an award of annual leave pay on termination. 8. In this case it is not necessary for me to decide whether, if continuity of employment was broken in August, the employee's qualifying period for annual leave pay on termination began to run only from the beginning of the next period of four weeks which "did count". It is not necessary because I find that the employer has not discharged the onus of proving that the contract of employment was not continuous throughout the whole period of the employment relationship. 9. Although the employer can show from the evidence that there must have been at least one week in August when the employee worked for less than three days that, by itself, does not amount to proof that continuity was broken. An employee may, in any of the circumstances mentioned in Clause 2 of the First Schedule, be absent from his place of work and fail to perform any work for his employer on a particular day and yet that day will still count as a day on which he has worked. So, in order to prove a break in continuity the employer, in addition to proving that an employee has worked for less than three days in a particular week, must offer some evidence that on the days less than three when he did not work the employee's absence or failure was not attributable to any of the circumstances mentioned in Clause 2 of the First Schedule. Until the employer has done that a determination cannot be made as to whether a day not actually worked is to be counted as "a day on which he has worked". There was evidence from which an inference could have been drawn that the employee's absences in August were in circumstances such that, by mutual arrangement, he was regarded as continuing in the employment of the employer. Such evidence as there was on the issue therefore tended to prove continuity rather than disprove it. There was certainly no evidence to show that any absence by the employee should "not count". The employer did not discharge the onus of proving that there was not a continuous contract of employment during the period from 3 April 1979 to 4 October, 1979. On the evidence, the award in respect of annual leave pay on termination was properly made. 10. The employer's appeal against the award in respect of holiday pay to the extent that it was based on the same "break in continuity" submission founders for the same reason. The employer, however, also argued that the Presiding Officer wrongly assumed that the employer admitted liability. It was not an assumption on the part of the Presiding Officer at all but an acceptance of evidence put before him in a form authorised by section 14 of the Labour Tribunal Ordinance, namely, acceptance of a statement made by the employer to the Tribunal Officer and included by the latter in the summary of facts he was obliged by the Ordinance to put before the Tribunal. That statement was identical with the statement made about the same matter by the employer in her own handwritten statement of defence. I therefore find no merit in this ground. 11. The appeal is dismissed. 12. Dated this twenty second day second day of July, 1980.
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