DAVID HOT BLOCKING PRESS LIMITED v. HO KING YAM

1994 No.LTA56

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H E A D N O T E

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AN EMPLOYER WANTED TO DEFEAT THE 1986 LEGISLATION ON "LONG SERVICE PAYMENT" BY DISMISSING HIS EMPLOYEE JUST BEFORE 1986 AND RE-CONTRACTED HIM ON THE SAME JOB ON 2 JANUARY 1986. HE IS CAUGHT BY THE STATUTORY CONCEPT OF "CONTINUOUS CONTRACT" OF EMPLOYMENT ACCORDING TO S.3 AND THE FIRST SCHEDULE OF THE EMPLOYMENT ORDINANCE, CAP.57.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

LABOUR TRIBUNAL APPEAL NO. 56 OF 1994

(CLAIM NO.ST-570 OF 1994)

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J U D G M E N T

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1. This is an appeal from the learned Presiding Officer of the Labour Tribunal, Paul Chiu, Esq. dated 22 June 1994.

The Background

2. On 1 January 1986, Part VB of the Employment Ordinance concerning long service payments came into effect. With a view to avoid the effect of long service payments as provided in the new legislation, the Appellant (Defendant in the Labour Tribunal), one David Hot Blocking Press Limited ("the Employer") dismissed some of its employees including the Respondent (Claimant in the Labour Tribunal), one Ho King Yam ("the Employee") in December 1985. Specifically his employment contract with the Employer was terminated on the 30 December 1985 whereupon the Employee was given all monies due under the Employment Ordinance in effect there and then.

3. The parties entered into a new contract of employment in writing on 2 January 1986. The new contract was signed on 31 December 1985 to take effect from 2 January 1986. The Employer probably thought that because of this breakage in the employment, there would not be any "continuous contract of employment" counting from the first day the Employee was employed by the Employer before 1977.

The issue

4. There is only one main issue in this appeal and that is whether the continuous contract of employment as provided by the statute counts from 1977 (being 9 years before 1986) or from 1986 when, as contended by the Employer, there was a break in the contract of employment by reason of the dismissal and re-employment. In other words, to put it bluntly, whether the Employer had succeeded in avoiding the effect of the new legislation in 1986 in terms of long service payments.

What is a continuous contract in the statute?

5. Section 31R provided, in respect of general provisions as to employee's right to long service payments, as follows:-

"31R. General provisions as to employee's right to long service payment

(1) Where an employee who has been employed under a continuous contract -

(a) for not less than the number of years of service at the relevant date, specified in column 2 of the table in the Fifth Schedule opposite his age at that date specified in column 1 of that table

(i) is dismissed and his employer is not liable to pay him a severance payment by reason thereof; or

(ii) subject to subsections (3) to (5), terminates his contract in the circumstances specified in section 10(aa); or

(b) terminates his contract and, at the relevant date, he is not less than 65 years of age and has been employed under that contract for not less than 10 years.

the employer shall, subject to this Part and Part VC, pay to the employee a long service payment calculated in accordance with section 31V(1)."

The Employee claims for his entitlement under section 31V(2)(b) by reason of the age of the employer being under 42.

6. Section 31T of the Ordinance provided as follows:-

"31T. Dismissal by employer

(1) For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if, but only if -

(a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9;

(b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or

(c) the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer's conduct.

(2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if -

(a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and

(b) the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract.

(3) For the purposes of the application of subsection (2) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday."

The meaning of "continuous contract" and "onus of proof thereof" is provided in section 3 as follows:-

"3. Meaning of continuous contract and onus of proof thereof

(1) In this Ordinance, 'continuous contract' means a contract of employment under which an employee is deemed by virtue of the provisions of the First Schedule to be in continuous employment.

(2) In any dispute as to whether a contract of employment is a continuous contract the onus of proving that it is not a continuous contract shall be on the employer."

7. The First Schedule of the Ordinance provided as follows:-

"FIRST SCHEDULE

CONTINUOUS EMPLOYMENT

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.
	(b)	In the case of a contract of employment existing at the commencement of this Ordinance, such period of employment next preceding the date of commencement of the Ordinance as may be necessary shall be taken into account in order to ascertain whether or not the contract of employment is a continuous contract.

2. Subject to the following provisions, where at any time an employee has been employed under a contract of employment during the period of 4 or more weeks next preceding such time he shall be deemed to have been in continuous employment during that period.

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, and in determining whether he has worked in any hour the provisions of sub-paragraph (2) shall apply.

(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 incapability in excess of 48 hours is supported by a certificate issued by a registered medical practitioner; or

(b) absent from work in circumstances such that, by law, mutual arrangement or the custom of the trade, business or undertaking, he is regarded as continuing in the employment of his employer for any purpose,

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

4. Where an employee is absent from work for the whole or part of any hour-

(a) because of a strike (which is not illegal) in which he takes part; or

(b) because of a lock-out by his employer,

that hour shall not count as an hour in which he has worked, but the continuity of his period of employment shall not be treated as broken by any such absence.

5. If a trade, business or undertaking is transferred from one person to another, the period of employment of an employee in the trade, business or undertaking at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period of employment.

6. For the purposes of this Schedule, any reference to hours in which an employee has worked shall mean hours in which he has worked for his employer whether or not the hours were worked under the same or another contract of employment with that employer and whether or not they were consecutive hours.

7. In this Schedule, unless the context otherwise requires-

'lock-out' and 'strike', respectively, have the meanings assigned to them in the Trade Union Ordinance (Cap.332);

'week' means a week ending with Saturday."

8. From the aforesaid provisions, it should be apparent that the concept of "continuous employment" is not a concept which can be deduced from the wording itself. In other words, the exercise of finding the meaning of "continuous employment" is not an exercise to find out the plain and obvious meaning of the word "continuous". It is a statutory concept and the meaning thereof could only be found in the statute rather than construction of the words. Put it in another way, the use of the word "continuous" is generic as well as descriptive. This is in line with a number of decisions which I shall come to in a moment.

9. Did the Employee in this case had a contract of employment existing at the commencement of the Ordinance? Paragraph 1(b) of the First Schedule provided that the period of employment next preceding the date of commencement of the Ordinance shall be taken into account in order to ascertain whether or not the contract of employment is a continuous contract.

10. Under paragraph 2 thereof, the next question to decide is whether during the period of four or more weeks next preceding the time an employee had been employed under a contract of employment. If so, then he shall be deemed to have been in continuous employment during that period.

11. Under paragraph 3, no week shall be counted unless the employee has worked for 18 hours or more in that week subject to a number of provisos.

12. Under paragraph 7, "week" means a week ending with Saturday.

13. In this case the Employee commenced or re-commenced his new contract of employment on 2 January 1986; this was a Thursday. The preceding week commencing on the previous Saturday would be 29 December 1985. So the preceding week would be from 29 December 1985, Saturday to 4 January 1986, Sunday. It is common ground between the parties that on any calculation, the Employee had been employed under the old contract of employment during the period of four or more weeks next preceding the date of commencement of the Ordinance for the purposes of the provisions in the First Schedule.

14. In other words, in order to defeat the purposes of this part of the Ordinance, an employer must dismiss an employee for four or more weeks or during those four weeks preceding, the employee was not asked to work for 18 or more hours. This was not what the Employer in this case had done.

The Decided Cases

15. The new legislation in 1986 was modelled on the English Employment Protection (Consolidation) Act 1978, Section 151 and Schedule 13. A number of decisions have been made thereon.

16. The learned author inHalsbury's Statutes of England, Vol.48, at p.610 said as follows:-

" Employment during any period shall ... be presumed to have been continuous. The presumption in sub-s.(2) above that a person's employment during any period has been continuous applies where the terms of employment have changed or a new contract of employment has been agreed, provided that the employer remains the same; it also covers the case where the change is from permanent to temporary employment (Wood v. York City Council, [1978] I.C.R. 840 C.A.). Moreover the presumption is not limited to cases where, during the period in question, the employee has been employed by the same employer but is also applicable where, in consequence of a transfer during that period of the business in which the employee has been employed, he has had more than one employer, and where an employee has entered into new employment on the strength of a representation that his employment would be treated as continuous with his former employment, the new employer may be precluded from denying that the employee has been continuously employed for the entire period; see Evenden v. Guildford City Association Football Club, Ltd., [1975]3 All E.R. 269, C.A., approved in Secretary of State for Employment v. Globe Elastic Thread Co., Ltd., [1978]3 All E.R. 954, C.A."

In England the number of hours in any week is 16 under Schedule 13 as opposed to 18 in Hong Kong.

17. In Dix and Crump on Contracts of Employment, 6th Edition at para.9.01, the learned authors said as follows:-

"9.01 Continuity of employment for statutory purposes is an artificial concept now dealt with in the Thirteenth Schedule of the Employment Protection (Consolidation) Act 1978. The present Schedule is based on that which first appeared in the First Schedule to the Contracts of Employment Act 1963 and was re-enacted in the Contracts of Employment Act 1972. The First Schedule to the Act of 1963 provided a means for calculating periods of employment for the purpose of ascertaining minimum periods of notice, but as has already been seem continuous employment is now relevant to many other statutory rights of the individual employee. For the purposes of any proceedings under the Employment Protection (Consolidation) Act 1978, other than those for breaches of sections 1, 2, 4 or 49, a person's employment during any period is, unless the contrary is shown, presumed to have been continuous. Thus the onus of proof is on the employer, if he alleges that employment has not been continuous, to prove that there was no continuity. This involves proving a negative and is usually done by producing evidence of the break in the continuity."

The reversed situation could be found in the case of Lee & another v. Barry High Limited [1970]3 All ER 1041, C.A., the apprentice in that case was employed by a different master and the Court of Appeal held that it was a situation of separate employment although the apprenticeship under the deed was treated as single and continuous. That was because the state of affair and its circumstances did not come within the statutory definition of "continuous employment". Lord Denning, MR in his judgment at pp.1042-1043 said as follows:-

" I have approached the argument of counsel for the apprentices with the greatest sympathy because it seems to me, as it did to the tribunal, that Parliament did not have a case like this in mind. If it were possible on the true construction of the 1965 Act to find in favour of these two apprentices, I would gladly do so. But, after careful consideration, I fear that the words of the 1965 Act are too strong to admit of it. it seems to me plain that s.8(1) only defines what is the 'requisite period', namely, in this case, 104 weeks excluding any week before attaining the age of 18. Section 8(2) is 'Subject to' s.8(1), i.e. in regard to the requisite period, and the other proviso. But otherwise it is comprehensive. it is a definition which requires the court to look at Sch.1 of the 1963 act in order to see what 'continuous employment' means. Looking at Sch.1 of the 1963 Act, it shows that employment is only continuous when a man is employed by the one employer all the way through the requisite period of two years, except for the special circumstances set out in para.10(2), (3), (4) and (5), where there is a transfer of the business, and so forth - none of which applies here.

Applying it here, the apprentices have not had one employer only. They have had three employers during their apprenticeship. Although the deed treats the three as the same master, nevertheless in law they are three separate employers : John Mowlem & Co up to 1966; David Chaston Ltd for the next 14 months to April 1967; and then, finally, the employers for the 14 months until the dismissal. The apprentice Christopher Lee became 18 on 19th July 1965. Since that time he has not been two years with any one employer. He has therefore not served 'the requisite period' for redundancy payment. If we were to stretch the interpretation of the 1965 Act so as to cover these apprentices, it would, I fear, cause difficulty in other cases. So I think that we must stand by the letter of the law here. All the more so because I am sure that the apprentices will have no difficulty in getting fresh employment. I would, therefore, dismiss this appeal."

Further at p.9.06, the learned author of Dix and Crump said as follows:-

"9.06 It frequently happens in a period of long service with one employer that the employer and employee enter into a succession of new contracts, for example on promotion or other reasons and paragraph 1 does not require that 'continuous' employment should be pursuant to a single contract of service; per Pennycuik J in Re Mack Tracks (Britain) Ltd. The provisions of the Thirteenth Schedule have affect for the purpose of computing an employee's period of employment but for no other purpose in relation to Crown employment and to persons in Crown employment as they have effect in relation to other employment and to other employees with appropriate amendments so far as construction is concerned. This does not apply to service as a member of the naval, military or air forces of the Crown or of any women's service administered by the Defence Council but does apply to employment by any association for the purposes of Auxiliary Forces Act 1953."

18. In a case of In re Mack Trucks (Britain) Limited, part of the Headnote read as follows:-

"..... On November 27, 1964, a receiver was duly appointed [under a mortgage]. On the same day C., who was employed by the receiver's firm, informed H., an employee of the company since 1956, that he was terminating H.'s employment on behalf of the receiver, and offering him re-employment on the same terms as he had previously been employed. H. continued to work as before. No particulars of terms of employment of the nature specified in the Contracts of Employment Act, 1963, were then given to H. On April 1, 1965, the receiver sent H. a notice stating that he was about to apply to the High Court to have determined what form and length of notice was required by that Act. On July 14, the receiver wrote to H. terminating his employment from July 23, on which date the company ceased to trade.

.....

Held, .....

(2) That the contract offered to an accepted by H. was not made between him and the receiver as principal but was made between H. and the company acting through the receiver as agent; that, accordingly, there was no break in the continuity of H.'s employment for the purposes of section 1 of the Contracts of Employment Act, 1963, for that section did not require that 'continuous' employment should be pursuant to a single contract of service, nor was the momentary break between contracts of any significance for H. had been employed for more than 21 hours during that week and, therefore, by virtue of Schedule 1 to the Act, the week ranked as a week of employment; and that, accordingly, H. was entitled to the statutory period of notice on the footing that he had been employed continuously since 1956, that was four weeks' notice."

Pennycuick J. said at p.786:-

" It will be remembered that Mr Heard had been in the employment of the company from 1956 until the appointment of the receiver on November 27, 1964. He then continued, to use a neutral expression, to be employed under the receiver until July 23, 1965. The receiver gave him nine days' notice to expire on that date. The first question is whether this notice was sufficient under section 1 of the Contracts of Employment Act, 1963. It was sufficient if his period of continuous employment is to be treated as having begun on November 27, 1964, but not if it is to be treated as having begun in 1956."

He further said at pp.787-788:-

" So far as the relation between the company and Mr Heard is concerned, it seems to me that the operations carried out on November 27 made on substantial difference in the contractual relation between the company and Mr Heard. It is always open, I suppose, to two parties to a subsisting contract to enter into a new agreement under which they express themselves to determine the existing agreement and bind themselves by a new agreement in identical terms. Where they do that the substantial relation between them continues exactly as before. Nor, it seems to me, was there any breach in the continuity of Mr Heard's employment for the purpose of section 1 of the Contracts of Employment Act, 1963. Subsection (1) of that section requires that the person whose contract of employment is terminated shall have been continuously employed, which for the present purpose means continuously employed by the same employer - there are one or two qualifications - for a specified period. The section does not require that the period of continuous employment should be under a single contract, i.e., the contract of employment which is terminated by the notice. Nor can such a provision be implied into the subsection. It must frequently happen in the case of a long period of service with a single employer that employer and employee enter into a whole succession of new contracts, e.g., upon promotion or for other reasons. But in ordinary speech one would in such circumstances treat the period of employment as dating from the commencement of the first of these contracts and not from the commencement of the contract currently in force at the date of its termination. Nor is any such limitation required by the context of the section now under consideration. On the contrary, such a limitation would be quite inappropriate, e.g., if a man had 30 years' continuous service with his employer but had entered into a new contract a month before its termination, then he would only be entitled to one week's notice. it seems to me that I must give effect to what I think is the plain meaning of the words in section 1 and to treat the period of continuous employment as running from the date when Mr Heard was first employed, i.e., 1956.

It may well be that there was a break of either minutes or hours between the formal termination of the existing contract in November, 1964, and the formation of a new contract which, it may be, did not happen until Mr Heard presented himself for work the next morning. However, any difficulty on this point appears to be obviated by the provision which I have read from Schedule 1 to the Act. In the relevant week Mr Heard was employed for more than '21 hours or more,' and it appears, accordingly, that the relevant week must be counted in computing his period of employment, even if there was a break of minutes or hours between the termination of the old contract and the formation of the new contract."

19. In other words, the concept of "continuous employment" is a statutory artificial concept. In order to ascertain whether an employment is an continuous contract, one would have to apply the statutory provisions to see whether the circumstances of an employee with a breakage in the employment fit into the description of the First Schedule of our Ordinance or not. If according to the Ordinance, the employee, as I have said before, was employed in the previous period according to the provisions of the Ordinance then he would be deemed to have a continuos employment for the purposes of long service payments. The same decision to similar effect could be found in the case of Wood v. York City Council (C.A.)[1978]1 ICR 840 CA. Lord Denning, MR said at p.842 of his judgment that:-

"This case raises a question of law on the true interpretation of the Redundancy Payments Act 1965 and the Contracts of Employment Act 1972. It is quite plain that a period of employment by the same employer is to be treated as continuous employment unless it comes within the exceptions set out in Schedule 1 to the Act of 1972. I say this because of section 8(2) of the Act of 1965, which is to be coupled with section 13 of and Schedule 1 to the Contracts of Employment Act 1972. These provide a complete definition of what is meant by 'continuously employed': see Lee v. Barry high Ltd. [1970]1 W.L.R. 1549, 1553, 1555. It is of course entirely different when there is a change of employer. When a man changes his employment from one employment to another, then there is a special code for dealing with it in paragraphs 9 and 10 of Schedule 1. It is interesting to note that if a man changes his employment from a company to an associated company within the same group, it is still continuous employment. So it seems to me that when there is no change of employer, but the man remains in the same employment with the same employer for years, it is treated as continuous employment unless it is broken by some such way as is shown in Schedule 1, such as, for instance, if he goes on to a very short working week of less than 21 hours. But I will not go into those details because none of them arise today. it is acknowledged that Mr. Wood does not come within any of the exceptions at all. So the presumption arises under section 9(2)(a) of the Act of 1965: '... a person's employment during any period shall, unless the contrary is proved, be presumed to have been continuous.'

I see no difficulty in this case. Even though a man may change his job from, say, manual work to clerical work, even though he may change the site of his work from one place to another, even though he may change the terms of his contract of employment and enter into a new contract of employment, as long as he is with the same employer all the way through, then it is continuous employment."

20. Certain restrictions were made by the Employment Appeal Tribunal in an appeal from an Industrial Tribunal. In the case of Ryan (appellant) v. Shipboard Maintenance Limited (respondents) [1980] IRLR 16 the facts of the case are as follows:-

"The facts:

The business of the respondent company is to provide men with the necessary skill and experience to carry out repairs to ships, either in port of on the high seas. The company uses a pool of appropriately qualified men and offers employment to them on a job basis.

Mr Ryan worked for the company on 31 jobs between August 1973 and November 1978. These jobs varied in length from one to eleven weeks. In between jobs as a normal rule, he would draw unemployment benefit. The length of time between jobs also varied; on one occasion it was as much as 18 weeks and on two occasions 11 weeks.

In 1978, however, Mr Ryan was growing concerned about is future employment prospects because of the run down in shipbuilding and ship repairing. So, after waiting for eight weeks without an offer of another job from the respondents, he made a claim for a redundancy payment.

An industrial Tribunal rejected his claim on the grounds that he had not been dismissed in law.

The Employment Appeal Tribunal (Mr Justice Kilner Brown, Mr R J Hooker, Mr M L Clement-Jones) in a reserved decision given on 9.1.79 dismissed the appeal."

21. In the judgment of Kilner Brown J. at p.17 he said:-

" They [the Industrial Tribunal] concluded that as he had, when working, only worked for one employer he was entitled to say that he had been continuously employed. Support for this conclusion is to be found in Woo v. York City Council [1978] IRLR 228. Until we were corrected by the Court of Appeal, many Industrial Tribunals and the Employment Appeal Tribunal had thought that, simpliciter, the one employer test might have to be put into context and where an employee of his own volition terminated one contract and took another different type of job, albeit with the same employer, continuity of employment might in the special circumstances well be broken. We can appreciate that normally one such move would, as the Master of the Rolls pointed out, not break continuity of employment, but taken to its logical extreme the principle stated by the Court of Appeal might cover the position of a man who began his working life with a local authority as an office boy, then resigned and became a refuse collector, then resigned again and became a painter and decorator, then resigned yet once more and became an assistant in the housing department. We do not believe that the Court of Appeal intended that the principle of one employer should be extended to such a degree. Is that continuity of employment as contemplated by Parliament? If it is, it does not make sense to us. Even more so it does not make sense to us that a man can finish a job with the same employer, draw unemployment pay, return to work and repeat the process 30 times, and then at the end allege that there had been continuity of employment. The Industrial Tribunal thought that he could. We do not."

This restriction is, of course, not applicable to the case before me since the Employee, Mr Ho, was employed on exactly the same job before and after the new contract of employment. The same approach to the construction of the words "continuous employment" could also be found in the case of Rowan v. Machinery Installations (South Wales) Limited [1981] ICR 386, Employment Appeal Tribunal. In the judgment of Slynn J. at p.391, he said:-

" It has to be remembered that one is concerned here not with contracts, or contracts of employment, but with the computation of periods of employment. Paragraph 2 of Schedule 13 provides quite clearly that any week which does not count under paragraphs 3 to 13 of the Schedule breaks the continuity of the period of employment. It follows that any week which does count under paragraphs 3 to 13 continues the period of employment. Therefore, the question is not whether there has been a termination of a particular contract of employment followed by another contract of employment, or followed by employment not under a contract, but whether there has been continuous employment of the kind referred to in the Schedule. Accordingly, one simply looks to see whether, for example, under paragraph 3 there has been employment for 16 hours or more, or, under paragraph 4, whether there has been employment under a contract of employment which normally involved employment for 16 hours or more. Or one looks to see in certain cases whether eight hours or more have been complied with. One asks whether, even if there is absence, for example, the provisions of paragraph 9 are satisfied so that the periods are regarded as continuous. There may be absence from work due to pregnancy or confinement; certain weeks in those circumstances are to be regarded as continuous periods of employment. And there are other factors to be taken into account. So, it seems to us that these three sub-sub-paragraphs of paragraph 12(2) really form a coherent pattern which is capable of being satisfied, and it seems that if a redundancy payment which is liable to be paid is paid, then these conditions may be satisfied. If, on the other hand, a sum is paid when there is no liability to pay it, paragraph 8 cannot be satisfied. It was not satisfied here and, so, in our judgment, reliance cannot be placed, as reliance was placed by the company and by the industrial tribunal, upon the provisions of paragraph 12."

22. All the authorities cited herein before support the learned Presiding Officer's decision that the Employee was under a continuous contract of employment before 1986 according to the Ordinance.

Quantum

23. In the end, the Employer submitted that if the court considered that there was a continuous employment, the employee should repay 1½ months' wages which he was given in 1985 under the discontinuation of the previous employment by agreement. This was, as agreed between the parties there and then, the 1½ months wages in lieu of notice and not in the first place payment for any long service. Further, this was paid upon the Employer terminated the old contract by agreement, and any payment over and above the statutory provisions

would be entirely at the liberty of the parties. Finally, even if the Employer contended that these are overpayments and wanted to claim it under money had and received or payment under mistake, its cause of action would have been statutorily barred by now. Accordingly, the submission of the Employer here is also rejected.

24. Further, it goes without saying that the third ground of appeal that the learned Presiding Officer erred in law in interpreting s.31W(1) of the Employment Ordinance cannot be accepted. The learned Presiding Officer has very properly taken the 9 years period prior to 1 January 1986 as the relevant period of employment under a continuous contract.

Conclusion

25. It is quite obvious from the authorities cited that the Employee in this case was under a continuous employment since 1977 (i.e. the maximum statutory limit of 9 years before the commencement of the Long Service Payments in 1986) as provided by the statute and not since 1986. It is a case where the Employer had, on the frolic of his own, devised a scheme in order to defeat the clear intention of the legislation but failed. This is a clear lesson to be learned by the Employer who sought to defeat certain provisions of the

legislation but ended up in paying more by his own follies. The appeal must be dismissed with cost to the Employee.