YUM SIU WAH v. AUTO ITALIA LTD

HCLA 14/2018

[2018] HKCFI 2141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 14 OF 2018

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 191 OF 2017)

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DECISION

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All considered, the following order is made:

1.  Leave to the claimant to amend the Form 14 dated 4 June 2018 as per the draft attached to the ex parte summons filed on 4 September 2018. 

2.  No order as to the costs of the ex parte application for amendment under §1 above.

3.  Leave to appeal is granted in respect of the following points:

(1)   In respect of the claim for compensation for rest day, whether the Tribunal erred by failing to consider that the provisions under clause 5 of the employment contract between the parties contradict section 17 and were void pursuant to section 70 of the Employment Ordinance, Cap 57 in the circumstances of this case [§§1 and 3 of the amended Form 14];

(2)   In respect of the claim for commission for the 31 sales contractsprocured or followed up by the claimant but were cancelled by agreement between the defendant and the customers after the termination of claimant’s employment, whether the Tribunal erred by failing to find that in the circumstances of this case the claimant’s entitlement to commission has accrued and the commission payable upon the termination of his employment, irrespective of the cancellation of those contracts subsequent to the termination of his employment, and, if yes, the proper assessment of such commission [§§2A and 3 of the amended Form 14];

(3)   Alternative to (2) above, if the claimant’s entitlement to commission in respect of the 31 sales contracts has not accrued by the time of the termination of his employment, whether the Tribunal erred by failing to investigate and to find that in the circumstances of this case, it was a term of the contract of employment implied by law that the defendant would use its reasonable endeavour to procure the performance of those salescontracts with the customers and thereby enabling the claimant to become entitled to his commission in respect of those sales contracts subsequent to the termination of his employment, and, if yes, whether the defendant was in breach of such implied term [§4 of the amended Form 14];

(4)   Whether the Tribunal was plainly wrong in her assessment of the commission that the claimant is entitled to:

(a)   In respect of sales contract items nos. 6 and 21 by assessing on the basis that the customers under those contracts were old customers of the defendant at the timeof the contract, such basis being contrary to the evidence;

(b)   In respect of the forfeited sales contract item no. 16 by assessing on the basis of a percentage of the fixed commission that would have been payable had the contract not been repudiated by the customer, which represented the ratio of the forfeited deposit relative to the total price, such ratio being contrary to the respective cases advanced by the parties and per se incorrect as a matter of fact [§§5 and 6 of the amended Form 14].

4.  Subject to §2 above, costs of the application for leave to appeal be in the cause of the appeal.