XCHRX TAM WAI SUN v. TSUEN WAN HO CHOI SEAFOOD RESTAURANT O/B CHARMWIN INVESTMENT LTD.

HCLA 97/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 97 OF 1999

(ON APPEAL FROM LBTC 6239/1999)

____________

____________________________________

REASONS FOR DECISION

____________________________________

This is an application for leave to appeal against the decision of the Labour Tribunal.

2. The background of the labour dispute is all too familiar. A restaurant worker claimed statutory holiday pay. The applicant who is the defendant employer relied on a written contract containing a scheme that purported to consolidate the employee's entitlement to rest days and statutory holidays into an agreement by the employee to have only 3 days off per month with an acknowledgement by the employee that his salary covers rest day pay. The scheme, I recall from my days at the Labour Tribunal, was and apparently is still popular with restaurant operators.

3. The amended grounds of appeal appears to be settled by a person with some knowledge of legalese but insufficient understanding of judicial process and English grammar. It alleges that:-

1. the Presiding Officer has failed to properly exercise the jurisdiction of the tribunal to inquire into, hear and determine the said claim; and/or

2. the Presiding Officer has failed to find whether the Respondent received pay for working on the rest days; and/or

3. the Presiding Officer has failed to properly construe clauses 3 and 4 of the employment contract; and/or

4. the Presiding Officer has failed to give reason why exhibits D18 to D20 were not truthful records of leave taken by the Respondent and the other employees; and/or

5. the Presiding Officer has failed to have proper regard to the documentary evidence before the Tribunal including without limitation to exhibits D11, D18 to D20; and/or

6. the Presiding Officer has failed to determine whether the Respondent actually took alternative or substitute holidays under section 39(2) of the Employment Ordinance; and/or

7. in the alternative to Ground 6 above, if which is denied, the Presiding Officer has determined that the Respondent did actually take the said alternative or substitute holidays on the rest days, such view cannot be reasonably entertained; and/or

8. if the Respondent had been paid for working voluntarily on the rest days, the Presiding Officer's view that the 36 holidays granted by the Appellant to the Respondent included the rest days cannot be reasonably entertained; and/or

9. the Presiding Officer has wrongly allowed the 1995 authority which was factually distinguishable to bias or mislead him in the finding of facts in the case.

4. Obviously the learned presiding officer did inquire into, hear and determine the claim. Otherwise there is nothing to appeal against. It is unclear from Ground 1 what it is that the Tribunal failed to do properly. Mr. Lam for the applicant sought to clarify it by saying that the learned presiding officer did not take into account certain evidence. Well, that is not a failure to inquire. Ground 1 is no more than an assault on assessment of evidence. Ground 2 is irrelevant because the claim is for statutory holiday pay, not pay for rest days. Ground 4 is factually inaccurate because the learned presiding officer in his detailed Reasons for Decision has given reasons on the exhibits in question. Ground 5 goes to evidence which is not within the province of appeal. Ground 6 is factually inaccurate because it is implicit in the award of statutory holiday pay that the Tribunal found that the employee did not take alternative or substitute holidays. Grounds 7 and 8 are, to me, meaningless.

5. At the end of the day, the claim before the Tribunal turned on the construction of the employment contract which is a matter of law. Although I am inclined to the view taken by the learned presiding officer, there is indeed a question of law to be considered and for this technical reason alone I should let the appeal proceed. Whether there are real merits in the appeal, I shall leave to the learned judge who will bear the appeal proper.

6. Accordingly, there is leave to appeal on only one question which may be broken down into two points:-

(1) whether the Tribunal correctly construed the employment contract, and

(2) whether the Tribunal's award is consistent with the law on statutory holiday pay and rest days.