Renown Industrial Co Ltd v. Tam Wing-kei and Others
Read the full judgment text of DCMP 3/1978 on BabelCite. This District Court judgment was delivered on 27 December 1978.
1. This is an appeal by the employer from a decision of the Presiding Officer of the Labour Tribunal upon the interpretation of Section 41 F (3) of the Employment Ordinance.
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DCMP000003/1978 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON APPELLATE JURISDICTION LABOUR TRIBUNAL APPEAL NO. 2 OF 1978 -----------------
----------------- LABOUR TRIBUNAL APPEAL NO. 3 OF 1978
----------------- LABOUR TRIBUNAL APPEAL NO. 4 OF 1978
----------------- Coram: B.L. Jones, D.J. Date of Judgment: 27 December 1978 ----------------- DECISION ----------------- 1. This is an appeal by the employer from a decision of the Presiding Officer of the Labour Tribunal upon the interpretation of Section 41 F (3) of the Employment Ordinance. 2. On the 1st January 1978 Part VIII A of the ordinance which deals with annual leave with pay came into operation. 3. Section 41A (1) entitles an employee to 7 days annual leave with pay in respect of each period of 12 months employment under a continuous contract. 4. Section 41F (3) provides that:-
6. The facts of the case are not in dispute. The respondents were employed by the appellant as sewing workers. All were paid on a piece rate basis except for two who were paid on a daily basis. The appellant closed down the factory from the 7th to 17th February, 1978 inclusive to enable the employees to take the three days statutory holiday for Chinese New Year, one normal rest day on a Sunday, and 7 days annual leave with pay. The respondents were away from work during that period. However, when they returned to work on the 18th February 1978 they were not paid wages for their annual leave. 7. It is agreed that six of the respondents have been employed for more than 12 months so in any event qualify for 7 days annual leave with pay. However, the remainder have been employed for less than the statutory period. 8. The Presiding Officer construed Section 41F (3) to me an that all the respondents irrespective of their length of service were entitled to 7 days annual leave with pay, and that the issue of pro-rata payment did not apply. 9. Mr. Niamutullah who appeared for the appellant submitted that the Presiding Officer had adopted a very narrow view in his interpretation that did not accord with the fair and liberal principles as envisaged by Section 19 of the Interpretation and General Clauses Ordinance. He argued that the section should not be construed in isolation, but in conjunction with the other sections of Part VIII A. He therefore contended that in respect of those respondents who had been employed for less than 12 months they should only be entitled to receive pro-rata payments. Although Section 41F (3) is silent on this matter Section 41D which relates to annual leave pay on termination of a contract does make provision under certain conditions for pro-rata payments. 10. Whilst an employee who has just joined a firm would derive benefit by receiving 7 days annual leave with pay under these circumstances an employee who had almost completed 12 months employment would be prejudiced. 11. There is no doubt that Section 41F only applies where the employer closes down the business for the purpose of annual leave. The decision to take this course is that of the employer. The employees have no say in the matter. 12. In such event if Section 41A does not apply employees would be compelled to take a holiday without pay. It is clear that in order to avoid this situation the legislature incorporated the provisions of Section 41F (3). 13. The words 'who is not otherwise entitled to annual leave pay in respect of any day during that period, shall be allowed that day as annual leave and shall be paid by the employer annual leave pay in respect thereof' refers to such cases where employees do not fall within Section 41A, and provides for payment during the period of closure. Payments pro rata are not intended. 14. The words of the section in my opinion are unambiguous. I am satisfied that the Presiding Officer arrived at the correct decision that all the employees are entitled to 7 days annual leave with pay irrespective of their length of service. 15. The appeal is therefore dismissed with costs to the respondents on the upper scale.
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