LIU KAM CHEONG v.TIN WO ENGINEERING CO LTD

HCLA31/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 31 OF 2006

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO.1046 OF 2006)

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R E A S O N S  F O R  J U D G M E N T

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Introduction

1. The claimant was a daily waged steel binder employed by the defendant between February 1998 and January 2006.  In February 2006, he commenced proceedings in the Labour Tribunal, claiming against the defendant for four items, namely, (1) wages in lieu of notice (HK$20,280), (2) annual leave pay for the period between 28 February 2000 and 12 November 2005 (HK$46,210.37), (3) statutory holiday pay (HK$64,050) for the period between 28 February 2000 and 11 October 2005 and (4) severance pay or long service pay (HK$52,281.42).  After trial, the presiding officer allowed the claim on annual leave pay and statutory holiday pay and dismissed other items.  The defendant then appealed.

2. On 4 January 2007, I allowed the appeal, set aside the award and remit the case to the Labour Tribunal before the same presiding officer for further investigation and determination.  These are the reasons for my judgment.

The Issue

3. It would appear that the basis of the claimant’s claim for annual leave pay and statutory holiday pay is that there existed a continuous contract within the meaning of the Employment Ordinance, Cap.57 (“the Ordinance”) throughout the entire period of his employment with the defendant that entitled him to those items.  Presumably, he used 28 February 2000 as the starting point for the items because of limitation.

4. The only issue that I need to determine in this appeal is whether, as contended by the claimant, there existed between the parties a continuous contract since 28 February 2000 up to the termination of his employment which entitled him to the annual leave pay and statutory holiday pay as claimed.  I will call this the Issue below.

The presiding officer’s findings

5. In his Reasons for Judgment dated 19 September 2006, the presiding officer had this to say on the question of continuous contract :

「14. 証據顯示申索人自1998 年開始已替被告公司工作，唯獨是工作模式及工資計算為按日工作。從出勤記錄(文件D-12(1)-12(6))，申索人在1998 年入職後至2006 年6 月期間有部份時段之記錄為『無資料』或是『無工數』，但此等情況並不多。值得一提的是「無資料」並不等同沒有工作，可能資料遺失。

15.    在2000 年6 月16 日後之記錄所見，每月均有工作，只是2003 年10 月1 日至2003 年10 月15 日之15 天內曾錄得1 工，其他時段之工數平均，直至2005 年12 月31 日為止。事實上，本案被告公司亦沒有爭議申索人之聘用並不符合僱傭條例中之『連續性受聘』。儘管如此，法庭亦有考慮申索人出勤記錄情況及雙方之証詞，基於工作性質，法庭相信沒有工數記錄的日子是因應地盤進度下之雙方協議安排所引致，因此按照僱傭條例附表一內第3(2)(b)條不會影響受聘之連續性。

16.  法庭認為及因此裁斷申索人與被告公司之僱傭關係自申索人入職起附合僱傭條例中之『連續性受聘』；沒有實質工作之日子因應法例中附表一第3(2)(b)條而不會影響其連續性。」

The presiding officer had obviously answered the Issue in the affirmative and in favour of the claimant.

Overview of counsel’s submissions

6. The main thrust of the submissions of Mr Ng for the defendant is that the presiding officer had failed to properly investigate the matters relating to the Issue.  In particular, he had failed to conduct any investigation on the出勤記錄at all.  He had also failed to properly consider the effect of section 3 of the First Schedule to the Ordinance.  Mr Chan for the claimant disagreed.  He submitted that it was not necessary for the presiding officer to pore over the effect of section 3 of the First Schedule.  In any event, the presiding officer had not failed to carry out investigation as contended before making his findings on the question of continuous contract.

7. I will deal with counsel’s submissions in greater detail below.

Any failure to investigate?

8. Mr Chan contended that it was not necessary for the presiding officer to consider section 3 of the First Schedule by taking two points.  First, the defendant had not raised continuous contract as an issue in its written defence.  Second, the defendant admitted that the claimant was entitled to annual leave pay and statutory holiday pay but alleged that they had already been included in the daily wage.  This confirms that the question of continuous contract is not an issue.  In support, Mr Chan relied on Luen Hing Engineering Company v. Lam Cho Kwan & Others, HCLA15/1995, unreported, Findlay J, 24 May 1995

9. I fully accept that the presiding officer is entitled to have regard to a written defence for the purpose of determining what issues are relevant : the Luen Hing case per Findlay J at p.3.  However, the written defence is not the only document that the presiding officer needs to refer to in order to determine what issues are relevant.  When a case comes before the presiding officer for trial, the parties have already filed their witness statements and documentary evidence.  The presiding officer needs to give proper regard to all of them for the purpose of determining what issues are relevant.  Indeed, if he discerns that there are relevant matters which the parties have not explored, he is obliged to look into them and invite the parties to comment or even direct them to produce further evidence : Ng Ming & Others v. Cheung Wah Investment Co. Ltd trading as Hoover Restaurant, HCLA10/2003, per Deputy High Court Judge Lam (as he then was), at para.11.

10. Here, the written defence filed by the defendant did allege that “雙方亦不會承諾可以給予多少天開工日數” and that “雙方没有承諾每月可給予開工日數”.  The evidence of the defendant’s witnesses is of the same effect.  Further, the出勤記錄shows that there were various periods in which (a) there was no information to confirm if the claimant had worked and (b) the claimant did not work at all (“the Periods”).  The obvious question then arose is whether the Periods constituted breaks in the continuity of the claimant’s employment.  See Lui Lin Kam & Others v. Nice Creation Development Ltd [2006] 3 HKLRD 656, where Tang JA (as he then was) agreed with the observation made by Deputy Judge Lam (as he then was) hearing the appeal in the first instance that “a break of working less than 18 hours within one week is sufficient to break the continuity of employment for the purpose of the First Schedule”.

11. The admission by the defendant that the claimant is entitled to annual leave pay and statutory holiday pay must be considered in context.  When the evidence is viewed in the round, I do not think the defendant had admitted that the claimant had worked under a continuous contract throughout the entire period of employment which entitled him to the annual leave pay and statutory holiday pay as claimed.  What the defendant had admitted, as Mr Ng has rightly conceded, amounts to this.  The claimant is entitled to some annual leave pay and statutory holiday pay, depending on the length of the continuous contract(s) that he had with the defendant throughout his employment.  (The contention that such entitlements had already been covered by the claimant’s daily wage is plainly not maintainable.  The presiding officer was correct in rejecting it.  And the defendant has not sought to challenge the presiding officer’s conclusion on this point.)

12. For these reasons, I reject Mr Chan’s primary submission and hold that the Issue is a live issue between the parties.  I next turn to his alternative submission that the presiding officer had in any event duly considered the question of continuous contract.  This brings me to a closer examination of what the presiding officer had said in this regard.

13. In paragraph 15 of his Reasons for Judgment, the presiding officer first said that the defendant had not raised the question of continuous contract as an issue.  In light of what I have said above, this remark cannot stand.  The presiding officer nevertheless went on to identify the question of continuous contract as an issue.  But unfortunately, contrary to Mr Chan’s submissions, he had not properly considered all the matters pertaining to the Issue before answering it in the claimant’s favour.

14. First, he had not conducted any investigation on the出勤記錄to see if the Periods constituted any break in the continuity of the claimant’s employment.  His remark in paragraph 14 of the Reasons for Judgment that「無資料」並不等同没有工作，可能資料遺失」is mere speculation, in the absence of the requisite investigation.

15. Second, his comment that the number of working days between 1 October 2003 and 31 December 2005, other than the period between 1 and 15 October 2003, is even is irrelevant to the question of continuity.  He should have applied sections 2 and 3 of the First Schedule to the Ordinance and see if there existed a continuous contract throughout the claimant’s employment.  See Leung Wan Kee Shipyard Ltd v. Lik Shau Foo [1995] 3 HKC 229, per Waung J at pp.232C-233D.

16. Third, the presiding officer said that he had taken into account of the出勤記錄and the parties’ evidence and concluded that because of the nature of work, the parties had, by mutual arrangement and according to the work schedules of sites, arranged the claimant not to work for those periods in which there was no record of work by him.  Thus section 3(2)(b) of the First Schedule applied.  However, the presiding officer had not explained how the出勤記錄, on which he had not carried out any investigation, supported his conclusion.  Nor had he explained how the evidence of the parties supported his conclusion.  As I have pointed out above, the effect of the evidence of defendant’s witnesses is quite to the contrary.  Mr Chan referred to me to the evidence of the defendant’s representative, Mr Au-yeung Sing at page 98G-L of the transcript :

「問： 唔好意思，你就話日日唔同人，我了解個情況就係日日唔同人，可能呢一個人好嘅，咪三、五、七個月喺度囉，唔好嘅可能佢三、五日之後都唔喺度，即係唔喺度 做嘞。

答： 唔係，法官大人，點解呢？我哋 -- 即係當時我就唔係自己做公司嘅，當時個判頭制度就唔好少長散嘅，即係講咗80年代就好少長散嘅，散工居多嘅，即係話去酒樓叫人比較多嘅，所以每日洗手畀錢係果嗰行業係慣例嚟嘞。咁到我自己成立公司嘅時間，我哋個理念就轉咗，我就唔係咁樣，我哋希望就話我哋係請一啲直接嘅工人去保障嗰個質素、同埋個服務同埋啲工人開工嗰個連續性，唔使走嚟走去，咁呢個係我開天和工程有限公司嗰個主要理念嚟嘅，咁我哋二十年嚟都係咁做嘅，都係貫徹咁樣做。

問：過去二十年呀？

答：所有工人都係我嘅長期嘅長散工嚟嘅，都係我哋直接僱用工人嚟嘅。」

Mr Chan argued that Mr Au-yeung’s evidence supported the presiding officer’s conclusion.  With respect, I disagree.  Engaging the workers, including the claimant, as so-called長散工, so as to ensure continuity of their work and service is one thing.  Whether such engagement supported the presiding officer’s conclusion is, in my view, quite another which requires further investigation to see if it falls within the requirements in sections 2 and 3 of the First Schedule.

17. For these reasons, I hold that the presiding officer had failed to carry out investigation on all the relevant matters pertaining to the Issue.  His award cannot stand.

Conclusion

18. I would therefore allow this appeal, set aside the award and remit the case to the same presiding officer for further investigation and determination on the question of continuous contract and the quantum of the claimant’s entitlement to annual leave pay and statutory holiday pay.  And for that purpose, the presiding officer should adopt the Issue and proceed accordingly.

19. For completeness, I would mention this.  Mr Ng relied on the Lui Lin Kam case and argued that there was no mutual obligation between the parties supporting a global contract covering the claimant’s successive periods of employment.  I do not think this question arose in this appeal.  For the presiding officer had made no reference to it at all.  If need be, it should be canvassed by him when the matter comes before him again.

20. On costs, they should follow the event.  The defendant is to have the costs of this appeal including the costs of the application for leave to appeal, to be taxed if not agreed.  The claimant’s own costs are to be taxed in accordance with the Legal Aid Regulations.