Read the full judgment text of CACV 000146/1996 on BabelCite. This Court of Appeal judgment was delivered on 7 January 1997 before Nazareth V-P, Mayo JA, Ching JA.
Employment law – contract of employment – whether caddie at golf club was employee or independent contractor – Employment Ordinance, s.2 – wages in lieu of notice – long service payment – indicia of employment – control test – integration into employer's organisation – parties' own view of relationship – payment by employer as agent for members – informal arrangements and freedom to attend – fundamental test whether worker performs services as person in business on his own account (Market Investigations Ltd v Minister of Social Security; Lee Ting-sang v Chung Chi-keung) – appellate intervention where only reasonable conclusion on undisputed facts is inconsistent with determination below (Edwards v Bairstow; Chan Kwok-kin v Mok Kwan-hing) – primary facts undisputed but lower tribunals applied indicia too mechanically – caddie turned up almost daily of own choice, not obliged to attend, not guaranteed work, paid only when member engaged him, provided no equipment, took no financial risk, received no employee benefits – Club's role was to regulate standards, grade and discipline caddies, and act as paying agent for individual members, not to employ them – loss-making agency role not inherently unconvincing in context of club subsidising services to members – standard form self-employed letter and posted notice reinforced Club's position, though not binding on respondent who did not sign – Mersey Docks and Harbour Board v Coggins & Griffiths on entitlement to give orders – Court of Appeal held only reasonable inference was contracts for services with members, not contract of employment with Club – appeal allowed – Labour Tribunal award of $33,840 set aside – sympathy expressed for elderly respondent but Court bound by statutory basis of long service payment requiring contract of employment.
Legal issues: Whether a caddie at the Royal Hong Kong Golf Club was an employee or an independent contractor under a contract of service · Whether the Court of Appeal should interfere with the first-instance appellate finding of employment
Outcome: Appeal allowed; the respondent's claim for wages in lieu of notice and long service payment under the Employment Ordinance dismissed.
Cited by 3 cases