LAU WAI TAK v. WONG HOK SING t/a LAI CHUN KNITTING FACTORY

Labour Tribunal Appeal No. 102/94

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an appeal from the Labour Tribunal.

2. The applicant claimed 26 days wages in lieu of notice and wages for three days statutory holidays. On 21 October 1994, the Presiding Officer dismissed the applicant's claim, essentially because he did not believe the applicant's evidence.

3. On 6 December 1994, the applicant applied for leave to appeal. Deputy Judge Pang gave the following decision -

1) The presiding officer was entitled to come to the findings and conclusion he did on the issue of severance pay based on the evidence before him.

2) However he did not seem to have addressed himself sufficiently to the issue of the statutory holiday pay or to its calculations based on the average daily wage of the applicant.

3) Leave to applicant to appeal against the presiding officer's finding and amount of statutory pay to which the applicant was entitled.

4. I have concluded that the learned judge was right.

5. It appears that the applicant was paid $80 a day for the three statutory holidays concerned.

6. Section 40 of the Employment Ordinance requires payment of pay for the statutory holidays. Section 41 provides for the rate of this holiday pay. This section says -

(1) Holiday pay shall be the sum equivalent to the wages which the employee would have earned on a full working day.

(2) Notwithstanding subsection (1), where an employee is employed on piece rates or where the daily wages of an employee vary from day to day, the holiday pay shall be a sum equivalent to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holidays.

7. The parties are agreed that the average daily wages of the applicant over the period concerned was about $400, but the respondent says that about a third of this was in respect of overtime. The respondent seems to be of the view that the applicant is entitled only to the basic wage of $80 a day, not taking into account money earned on piece work or overtime. On my reading of the legislation, this is wrong. The applicant is entitled to $400 a day, not $80 a day. According the applicant is entitled to an additional sum of $960 ($1200-$240). I allow the appeal to this extent and I award this sum to the applicant.

8. As to costs, neither party has been entirely successful here or in the Tribunal. I believe that the fair result in this respect is that there should be no order as to costs in this court or in the Tribunal.