CHOW YUK HO v. LI YIN HO AND ANOTHER

HCLA6/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

LABOUR TRIBUNAL APPEAL NO. 6 OF 2005

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 6897 OF 2004)

D E C I S I O N

1.  I have read the judgment of the learned presiding officer and consider that there are a number of points which deserve to be argued on appeal. 

2.  The first point is that the employer’s understanding of whether there was an employment relationship cannot dictate the nature of the engagement and turn an employment relationship into that of a contract for service. 

3.  Secondly, the fact that the relationship has been a slack one and the employer has been adopting a benevolent attitude on whether the employee was required to turn up for work on every working day again cannot dictate the nature of the engagement.  It is just one of the matters to be considered on whether the relationship was that of an employment contract or of a contract for service.

4.  The employer in this case has never said that the claimant had been dismissed.  It was therefore incumbent on the presiding officer to determine firstly whether she had been dismissed, and if so, the cause for the dismissal.  If the presiding officer should have found that there was indeed a dismissal rather than a voluntary departure by the employee, that would mean that the presiding officer would have disbelieved the employer on this point.  The presiding officer should then explain why, despite the employer was disbelieved on the issue of dismissal, the tribunal would still find the dismissal justified and to hold that the employee had misconducted herself. 

5.  Even if there was sufficient evidence to prove misconduct on the part of the employee, the presiding officer should still have to consider whether the misconduct was in the circumstances sufficient to justify a summary dismissal. 

6.  The sharing of profit on a 50/50 basis can be a sharing of profit in a contract for service.  Alternatively, it can also be a mode of calculating remuneration for an employee.  All piece-rated workers are remunerated in terms of the quantity of work done. 

7.  The so-called employment contract signed by the employee is just one of the matters to be considered in the application of the proper test to determine whether there was an employment relationship.  The learned presiding officer does not appear to have applied the proper test to see if there was an employment contract between the parties.

8.  The employee’s previous disputes with those who had engaged her service on previous occasions are irrelevant for the consideration of the nature of her engagement in the present case. She should not be prejudiced by what she did in those previous occasions. 

9.  For the above reasons, I grant leave to the applicant to appeal from the decision of the learned presiding officer.  I also order that costs of this application be in the appeal.