FUNG PUI WAH SALLY v. RICHFIELD REALTY LITD

FUNG PUI WAH SALLY v. RICHFIELD REALTY LITD

Appeal allowed in part: the court found the Presiding Officer erred by failing to address whether commissions (and team leader bonus) could, having regard to legislative intent and possible implied terms or other agreements, constitute sums paid in respect of paid sickness days/holidays/annual leave and thus be...

Source-derived case information.

Citation
FUNG PUI WAH SALLY v. RICHFIELD REALTY LITD
Parties
Claimant (respondent): Mak Wai Man; Claimant (respondent): Tsang Mei Sheung Meiz; Claimant (respondent): Mo Kwok Kei; Claimant (respondent): Fung Pui Wah Sally; Defendant (appellant): Richfield Realty Limited (田生地產有限公司)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2016
Case Number
HCLA31/2015
Procedural Posture
Labour Tribunal Appeal / Judgment on Appeal to Court of First Instance; Matter Remitted to Labour Tribunal for Further Determination on Deduction Issue
Outcome
Appeal allowed in part and dismissed in part; awards set aside and remitted to Labour Tribunal for specific determination; replacement arrangement challenge dismissed
Legal Topics
Calculation of Average Daily Wage, Deduction of Commissions From Statutory Entitlements, Annual Leave Replacement Arrangement, Estoppel and Acceptance, Implied Contractual Terms
Source Language
en
Employment Law Statutory Interpretation Labour Law Contract Law Calculation of Average Daily Wage Deduction of Commissions From Statutory Entitlements Annual Leave Replacement Arrangement Estoppel and Acceptance +1 more

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Mak Wai Man

Claimant (respondent)

Tsang Mei Sheung Meiz

Claimant (respondent)

Mo Kwok Kei

Claimant (respondent)

Fung Pui Wah Sally

Claimant (respondent)

Richfield Realty Limited (田生地產有限公司)

Defendant (appellant)

Procedural Posture

Labour Tribunal Appeal / Judgment on Appeal to Court of First Instance; Matter Remitted to Labour Tribunal for Further Determination on Deduction Issue

Legal Issues

  1. 1 Whether commissions paid to employees may be used to reduce statutory sickness allowance/holiday pay/annual leave pay under ss 35(4), 41(6) and 41C(6) of the Employment Ordinance
  2. 2 Whether the employer's Replacement Arrangement for Chinese New Year holidays constituted a mutual variation or estoppel binding the employees

Ratio Decidendi

Appeal allowed in part: the court found the Presiding Officer erred by failing to address whether commissions (and team leader bonus) could, having regard to legislative intent and possible implied terms or other agreements, constitute sums paid in respect of paid sickness days/holidays/annual leave and thus be deductible under ss 35(4), 41(6) and 41C(6). The matter is remitted to the Labour Tribunal to determine whether those payments were paid in respect of leave days and therefore deductible. The court dismissed the appellant's challenge to the Presiding Officer's finding that the Replacement Arrangement was unilateral because the evidence showed no clear acceptance or estoppel by the...

Court Disposition

Appeal allowed in part and dismissed in part; awards set aside and remitted to Labour Tribunal for specific determination; replacement arrangement challenge dismissed

Orders

  • The awards in each of the four claims are set aside
  • The matter is remitted to the Labour Tribunal to determine only whether the Statutory Entitlements payable to the Claimants should be reduced by payments of the Commission and the Team Leader Bonus (if no agreement) under ss 35(4), 41(6) and 41C(6) of the Employment Ordinance