Read the full judgment text of FACV 000017/2005 on BabelCite. This FACV judgment was delivered on 28 February 2006 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Ivor Richardson NPJ.
Employment law – contractual commission – inclusion in calculation of holiday pay and annual leave pay – Employment Ordinance (Cap. 57) ss.2(1), 40, 41, 41B, 41C – interpretation of definition of 'wages' – whether context of holiday and annual leave pay requires exclusion of contractual commission – beauty consultant entitled to monthly salary plus commission on sliding scale – whether commission accruing and calculated on a monthly basis can be included in holiday and annual leave pay – ss.41(1) and 41C(1) refer to wages the employee 'would' have earned – ss.41(2) and 41C(2) cater for piece rates and daily wages varying from day to day – no workable mode of calculation for monthly commission – purposive statutory interpretation – balance of interests of employers and employees – attendance bonus distinguished – appeal by employer allowed – Labour Tribunal's dismissal restored – each party to bear its or her own costs.
Legal issues: Whether contractual commission is included in calculation of holiday pay and annual leave pay
Outcome: Appeal allowed; remitter set aside; Labour Tribunal's dismissal of Ms Luk's claim restored.