HUI TING HANG v. LAW WING KEE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. On the 12th of September 1995, the Presiding Officer of the Labour Tribunal dismissed the claim of the Appellant Claimant for long service payment. The Claimant first started working for the Respondent employer in 1984 and in January 1990 the Claimant suffered injury from an industrial accident and he was off work for 10 months. In October 1990 he resumed work. But in 1994 due to disagreement with the Respondent, the Claimant was dismissed and his employment terminated. On the day the Claimant was dismissed he was 48 and under the Employment Ordinance ("Ordinance") the Claimant would be entitled to long service payment if he had been under a continuous contract for a specified period of years and as he was 48 at the time of dismissal the period of years under the Fifth Schedule of the Ordinance is 5 years.

2. The question of law raised in this appeal is whether, the Presiding Officer in holding that the Claimant was not entitled to long service payment, erred in law in failing to have regard to section 3(2)(a) of the First Schedule of the Ordinance. The First Schedule provide as follows:-

"1.(a)	The provisions of this Schedule are to ascertain whether or not any contract of employment is a "continuous contract" for the purposes of this Ordinance.
	..........................
3.(2)	If in any hour the employee is, for the whole or part of the hour-

	(a)	incapable of work in consequence of sickness or injury; provided that any such incapacity in excess of 48 hours is supported by a certificate issued by a registered medical practitioner.
	(b)	....................

then, save as provided in paragraph 4, that hour shall count as an hour in which he has worked.

3. It is clear from the Reasons for Decision of the Presiding Officer that he had never addressed his mind to the statutory provision in the First Schedule whereby under section 3(2)(a), injury certified by a Medical Practitioner would prevent any period of non work from causing a break in the continuity of employment. It is a duty of the Presiding Officer when the parties were not legally represented to investigate all relevant aspects of the claim and had he done so and addressed his mind to the aforesaid statutory provision, he would have appreciated that the Sick Leave Certificates at page 59 to 64 of the Bundle all clearly support the fact that the Claimant was incapable of work in consequence of injury and that therefore section 3(2)(a) would have prevented any termination or break of employment in 1990. An important finding of the Presiding Officer at page 2 of his Reasons is that "there was no agreement or arrangement made between the parties regarding the Claimant's employment with the Defendant for the period while he took rest because of his injury." In the absence of any specific arrangement or agreement, both under the statute and at common law, employment does not cease because of the absence of work due to injury.

4. If the Presiding Officer had proper regard to and had applied the statutorily defined concept of continuity of employment due to injury then, he would have come to a totally different result. In the circumstances, the award of the Presiding Officer on long service payment must be reversed and I make an award to the Claimant Appellant in the sum of $116,793.00 calculated in accordance with section 31V(1) of the Ordinance, namely 18 days wages at $600 per day times pro rata number of years of service which is 129.77 months divided by 12. The Appellant must also have the costs of the appeal to be taxed in accordance with Legal Aid Regulations.