HCLA000020/1996
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
(On Appeal from Labour Tribunal Claim No. E4607 of 1995)
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Ng Tak Wing （伍德榮） & 9 others （另九位）
Claimant(s)/
Respondents
and
Top Rise Garment Factory wholly owned by Top Rise Industrial Company Limited
Defendant(s)/
（勵進製衣廠有限公司）
Appellant
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Coram: Hon Leong, J. in Court
Date of hearing: 28th August 1996
Date of delivery of judgment: 28th August 1996
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JUDGMENT
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1. This is an appeal by the appellant Top Rise Garment Factory wholly owned by Top Rise Industrial Company Limited against the order of the Presiding Officer of the Labour Tribunal awarding a sum of $503,640 to the claimants (respondents) in respect of the latter's claim for wages in lieu of notice of termination, severance pay and various other statutory holiday pay.
2. The 1st to 7th claimants (C1-C7) had been working in the ironing section and the 8th to 10th claimants (C8-C10) in the cutting section of the appellant company for a long time, some since 1982. They were paid at piece rate.
3. The appellant closed the two sections in May and September 1995 respectively. The claimants made claims to wages in lieu of notice of termination, severance pay, annual leave pay, etc. The appellant denied that these claimants were their workers. They claimed C1 was a subcontractor and C2-C7 were employed by C1. The appellant also claimed that C8-C10 were employed by a Mr Kuk whom the appellant claimed was also a subcontractor.
4. C1 had signed a contract which states that he was a subcontractor of the appellant in the ironing section. Mr Kuk also singed a contract stating he was the subcontractor of the appellant. These facts were not in dispute. Mr Kuk gave evidence for the appellant at the hearing before the Labour Tribunal.
5. The appellant's case at all times was that these claimants were working for C1 and Mr Kuk and not their employees.
6. The Presiding Officer found C2-C10 to be employees of the appellant. The Presiding Officer also found C1 to be subcontractor and dismissed his claim.
7. The Presiding Officer found the following facts:
1.
The claimants worked on the factory premises of the appellant.
2.
The tools were provided by the appellant.
3.
Their working hours were the same as other workers in the appellant's factory although the claimants did not have to punch time cards.
4.
Their wages were paid by the appellant. They were paid in a lump sum to C1 and Mr Kuk who would distribute to the claimants according to the work they had done over the wage period.
5.
C1 and Mr Kuk submitted each month to the appellant the work done in their sections and the overtime and other allowances needed to be paid. The appellant would pay these sums accordingly.
6.
C1 and Mr Kuk themselves made no profit out of the work done in their sections and they bore no risk of loss.
7.
Statutory holiday pay, annual leave pay and other statutory payments the claimants were entitled were paid by the appellant.
8.
The appellant had the final say on whether to accept or reject particular work done by a claimant. If the work was rejected, the work had to be redone without payment.
9.
The termination of the operation of the two sections had resulted in loss of work by the claimants.
10.
The appellant filed I.R.D. employees wages return in respect of the claimants.
8. The Presiding Officer rejected the explanation made by the appellant that the filing of the I.R.D. returns was a mistake. There was no evidence before the Presiding Officer as to what mistaken belief had led the appellant to file these returns.
9. Based on such findings of facts, the Presiding Officer concluded C2-C10 were employees of the appellant.
10. Applying whatever tests that have been decided in the authorities: "The organisation test" (Roe v. Minister of Health [1954] 2 QB 66,90. Chitty 37-014) or the test indicated by Keith J. in Lee Chun Fai v. Hanin Garment Manufactory Ltd. (1995) 2 HKC 490, i.e. "for whom the claimants were working" or the test in Lee Ting Sang v. Chung Chi Keung (1990) 2 WLR 1173, i.e. "were the claimants performing their work as persons in business on his own account.", the only conclusion must be that the claimants were employees of the appellant.
11. The fact that C1 was found to be a subcontractor is not relevant. C1's recruitment of C2-C7 must be taken as recruiting them on behalf of the appellant and that alone does not make C1 the employer of these claimants.
12. An appellate court should not disturb a finding of fact by the Labour Tribunal unless the finding is one which is not supported by evidence or one a reasonable tribunal would not have come to on a proper interpretation of the evidence and direction of law.
13. There is nothing to indicate that the learned Presiding Officer had wrongly approached the issues or had applied the wrong burden of proof and standard of proof. Mr Hon complained that the President Officer, by saying in his judgment that the court should require very cogent and unequivocal evidence before it could find the claimants had agreed to waive their rights to severance pay etc. in favour of working for a man of little means such as C1 and Mr Kuk, had adopted the wrong burden of proof. That I do not agree. The passage referred to by Mr Hon merely means the Presiding Officer was not satisfied that the contention of the appellant that the claimants were employed by C1 and Mr Kuk was supported by sufficient evidence.
14. The Presiding Officer was entitled to take into consideration all the evidence including the intention of the claimants when he proceeded to inquire into the issue of whether the claimants were employee. On all the factors he considered, I cannot see any ground to interfere with the finding of the Presiding Officer and his conclusion that C2-C10 were employees of the appellant.
15. The appeal must be dismissed with costs to the respondents. The respondents' own costs is to be taxed in accordance with the Legal Aid Regulations.
(Arthur Leong)
Judge of the High Court
Representation:
Mr C.Y. Li (M/s W.K. To & Co.) assigned for 1st, 3rd, 4th, 6th, 7th, 8th & 10th Claimants/Respondents 2nd, 5th & 9th Claimants/Respondents in person
Mr Kevin Hon (M/s Yaddy Cheung & Co.) for Defendant/Appellant