Kwong Hoi Kin and Others v. Kam Shing Metal Manufactory

DCCJ000597/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 597 OF 1970

Coram: D. Cons D.J.

Date of Judgment: 29 April 1970

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JUDGMENT

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1. The two remaining plaintiffs had been employed by the defendant firm for some four months before the occurrence of the incidents which give rise to the present action. Their original engagements had been very informal, with no discussion of terms except as to the daily rate of pay, which in practice they received at half monthly periods, although it was calculated down to the actual number of hours worked. It was open to the plaintiffs to report for work or not as they wished, while on the other hand the defendant firm could ask them "to rest" if work was in short supply. Prior to the passing of the present Employment Ordinance (Chapter 57) in 1968 this action would have been completely misconceived, for until then a casual worker had no right to the provision of work further than that which was actually given to him and the question of a period of notice is not appropriate to such a form of employment.

2. Section (4) (1) of the Ordinance, however, provides:-

"Every contract of employment, which is a continuous contract, shall, in the absence of any express agreement to the contrary, be deemed to be a contract for one month renewable from month to month."

The meaning of "continuous contract" is tied to that of "continuous employment" and is eventually to be found in the Schedule, paragraph 2 of which provides:

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

Although the paragraph refers to "any time", so far as litigation is concerned no particular time is material until some incident occurs which is said to be a breach of the contract of employment, in the present case, the refusal of the defendant firm to supply the plaintiffs with work as from the 27th and 17th January, respectively. Then the Court must looked backwards from the last preceding Saturday to see if the employee fulfils the requirements of the Ordinance. Unfortunately, for them, neither of the plaintiffs does. It is apparent that the first plaintiff had not been employed for the last preceding three weeks, the second plaintiff not for the last preceding one week. The plaintiffs may have a little difficulty in understanding that statement and perhaps I should explain that by applying another rule laid down in the Schedule, work on any particular day does not rank as a day's work unless it is at least six hours in total length. On most of the occasions that the plaintiffs came to work during their respective periods of four weeks they worked for the mornings only, which being a mere five hours in length do not count at all. Even the two full days that the second defendant managed to put in do not help her further, for in this realm of the law it takes at least three days to make one week. There was some dispute in the evidence as to whether it was the plaintiffs or the defendant firm who brought about the lack of work. If it should be material, I would have preferred the version given by one of the partners of the defendant firm, namely, that the major part was the fault of the plaintiffs. But it seems to me that in either version the plaintiffs are not able to establish the necessary basis upon which to support their claim. If the lack of work was substantially their own fault they must be taken to have waived their rights under the Ordinance; if it was the fault of the defendant firm, then by failing to assert their rights until the bitter end, they have acquiesced until that moment in the defendant firm's failure to comply with the proviso to Section 10(3) of the Ordinance, which precludes an employer from providing less than three days' work in any one calendar week. The proper time to protest - ignoring slight complications in the case of the second defendant - would have been on the first occasion that the defendant firm offered only half day work for the fourth day in succession. By continuing at the same rate for so many days afterwards the plaintiffs have forfeited those rights under the Ordinance which they had probably earlier acquired.

3. As all parties to this action were unrepresented, I have come to my conclusion without the help of argument. In case therefore my conclusion should be wrong I would add that I would have assessed damages with respect to the first plaintiff in the sum of $110, being a sum consonant with his earnings for the period immediately preceding the 27th January, and with respect to the second plaintiff in a purely nominal sum, she having failed to take any action to secure other employment.

4. I understand that the writ in this action is drafted with the assistance of the clerks in the Registry of this Court. I do not for one moment critize the particular clerks who assisted in this instance for failing to recognize the appropriate term of which the defendant firm might have been said to have been in breach. Indeed, generally the clerks in that Registry are to be commended for the time and labour they so willingly devote to the aid of unrepresented litigants. But I must reluctantly add that had this properly been a case of wrongful dismissal, the writ is bad in substance and form. I believe that specimen precedents for this kind of action have been furnished to that office, and hope that in future they will be followed. It may also perhaps now be wise, except in obviously straight forward cases, to advise litigants first to seek the assistance of the Director of Legal Aid.

5. There will be judgment for the defendant against both the first and second plaintiffs with no order as to costs.

29 APR 1970

Representation:

Parties in person.