LE THI HUE v. WAH FAT ROAST & HOT-POT RESTAURANT LTD

[English Translation - 英譯本]

HCLA7/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 7 OF 2013

(ON APPEAL FROM LBTC NO. 3576 OF 2012)

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J U D G M E N T

1. The applicant was the claimant in Labour Tribunal (“Tribunal”) Claim no. LBTC 3576/2012. She filed this application to the Court of First Instance under section 32(1)(a) of the Labour Tribunal Ordinance, Cap. 25 of the Laws of Hong Kong, for leave to appeal against the order made by the Tribunal on 12 April 2013.

2. As stated in the Notice of Application for this application, the applicant’s main ground of application was that the Tribunal erred in finding that she was dismissed on 20 July 2012. The applicant alleged that, in fact, it was not until 24 July 2012 that she was dismissed.

3. Thus, the Tribunal erred in dismissing the applicant’s claim for wages in lieu of notice.

4. The Tribunal made a finding in favour of the defendant on the above main issue. As a result, it made a determination against the applicant and her claim was dismissed.

5. In brief, the Tribunal based its judgment on the findings of credibility as to the evidence of the two parties.

6. As to how she was dismissed, the applicant stated in her “Form of Claim” and “Statement by Claimant” that:

“On the 20th, since a dishwasher had left the job, the big sis told me to help with dishwashing. Around half past 9 on the evening of the same day, the big sis asked me to go out and said, ‘The lady boss wants you to work exclusively as a dishwasher. Is that alright?’ I said, ‘I’m a waitress. I won’t be a dishwasher.’ Then she said, ‘I don’t want you to be a waitress. You go now. I’ll ask the lady boss to pay you the wages.’” (“Form of Claim”);

“On 20 July, the big sis ‘Ah Ching’ (transliteration), again, requested me to help her to wash dishes for the whole day. I, again, agreed.

Around half past 9 on the evening of the same day, the big sis asked me to go to the back door and said, ‘The lady boss wants you to become a dishwasher. Is that alright?’

I said, ‘I’m a waitress. I can only help you to wash dishes for one or two days. I won’t become a dishwasher.’

She said, ‘I don’t want you to be a waitress. You go now. I’ll ask the lady boss to pay you the wages.’

When I had got changed and walked out, the lady boss said to me, ‘You come here tomorrow to collect the wages. I’m busy now.’

I said, ‘I’ll be busy tomorrow.’

After that, the lady boss produced the salary slip and asked me to sign.

I said, ‘You still have to pay me one month’s wages in lieu of notice because you haven’t given me any notice.’

Both the lady boss and the big sis “Ah Ching” said, ‘You are paid on hourly basis, so there are no wages in lieu of notice or notice period.’

I further asked them to write a termination letter, but they declined.

I then said, ‘You don’t write a termination letter for me. Then I’ll still have to work as usual.’

The lady boss said, ‘You may work if you wish, but you won’t be paid.’

Having heard this, I took the time card and went home.” (“Statement by Claimant”).

7. The claimant alleged that although she was dismissed on 20 July, she worked for the employer for around two hours on 24 July 2012. However, this could not change the fact that she had already been dismissed.

8. Based on the above, the Tribunal made findings which were supported by reasonable evidence. Therefore, by nature, the Tribunal made findings of fact for the case.

9. In addition, the applicant also pointed out in this application hearing that by virtue of Schedule 1 to the Employment Ordinance, Cap. 57 of the Laws of Hong Kong, even if she was dismissed on 20 July 2012, since she had worked for no less than 18 hours every week (including the fourth week from 15 July 2012 (Sunday) to 21 July 2012 (Saturday)), she should be deemed to have worked for her employer for four weeks (i.e. up to 21 July 2012). Thus, her case fell under the provisions of section 3(1) (continuous contract), section 6(2)(a) (termination of contract by notice) and section 8A(1) (damages for wrongful termination of contract) of Cap. 57.

10. Schedule 1 to Cap. 57 provides that an employee must have been employed during the period of four or more weeks: see Paragraph 2 thereof for details.

11. Paragraph 3(1) of Schedule 1 to Cap. 57 provides that:

“3. (1) For the purposes of paragraph 2, no week shall count unless the employee has worked for 18 hours or more in that week, … .”

12. That paragraph is intended to explain that in determining whether an employee has worked for “four weeks” under Paragraph 2 of Schedule 1, this is the minimum number of working hours the employee must have fulfilled every week. That paragraph does not mean that once an employee has worked for 18 hours, he/she can be deemed to have worked for one week. In other words, the provision in Paragraph 3(1) of Schedule 1 is not “presumptive” but “exclusive” in nature.

13. In reaching the conclusion in Paragraph 12 herein, I have consulted:

(1) Wong Man Kwan & Others v Chun Shing Holdings Ltd [2003] 3 HKLRD 403, para. 27;

(2) Lui Lin Kam & Others v Nice Creation Development Ltd [2006] 3 HKLRD 655;

(3) Fong Anne v Hong Kong Adventist Hospital, HCLA 33/2009 (22 June 2010), para. 32.

14. Based on the above, the arguments in Paragraph 9 herein are incorrect.

15. Thus, the order made by the Tribunal was not “… erroneous in point of law” as required by section 32(1)(a) of Cap. 25.

16. Based on the above, I reject this application.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.