HANIN GARMENT MANUFACTORY LTD. v. LAU CHUN FAI and Others

HANIN GARMENT MANUFACTORY LTD. v. LAU CHUN FAI and Others

On the undisputed primary facts — work performed on the Company’s premises on Company garments, Company payments into Yeung's account including amounts for severance and holiday pay, Company-paid employees' compensation premiums and Company instructions to retain staff — the Claimants were employed by the Company; statutory deeming provisions in the Employment Ordinance (s.5(1) and s.6(2)(a)) require one month's notice overriding industry practice; Deputy Judge Wong lacked power to grant ex parte leave to cross-appeal and that order is set aside; the Claimants' cross-appeal is to be adjourned pending proper application and any Registrar extension of time.

Citation
HANIN GARMENT MANUFACTORY LTD. v. LAU CHUN FAI and Others
Parties
Claimant/respondent: LAU CHUN FAI; Claimant/respondent: TSE KAM FAT; Claimant/respondent: CHAN LAM HOI; Claimant/respondent: CHU CHUN YEUNG; Claimant/respondent: CHUANG CHEN CHIANG; Claimant/respondent: CHU CHAK MING; Claimant/respondent: LI TI TA; Claimant/respondent: CHOW PUI; Claimant/respondent: LAU OI LUK; Defendant/appellant: HANIN GARMENT MANUFACTORY LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 May 1995
Case Number
HCLA128/1994
Procedural Posture
Appeal From Labour Tribunal to High Court (employment Disputes) / Hearing and Judgment on Appellant's Appeal and Claimants' Cross Appeal Application
Outcome
Appellant's appeal dismissed; ex parte grant of leave to the Claimants to cross-appeal set aside; Claimants' cross-appeal adjourned pending proper applications and any extension by the Registrar
Legal Topics
Employer Identification, Severance Pay, Holiday Pay, Annual Leave Pay, Notice Period, Continuous Contract, Agency and Principal Liability, Leave to Appeal, Ex Parte Procedural Power
Source Language
EN
Employment Law Agency Law Civil Procedure Labour Tribunal Procedure Statutory Interpretation Employer Identification Severance Pay Holiday Pay +6 more

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Parties

LAU CHUN FAI

Claimant/respondent

TSE KAM FAT

Claimant/respondent

CHAN LAM HOI

Claimant/respondent

CHU CHUN YEUNG

Claimant/respondent

CHUANG CHEN CHIANG

Claimant/respondent

CHU CHAK MING

Claimant/respondent

LI TI TA

Claimant/respondent

CHOW PUI

Claimant/respondent

LAU OI LUK

Claimant/respondent

HANIN GARMENT MANUFACTORY LIMITED

Defendant/appellant

Procedural Posture

Appeal From Labour Tribunal to High Court (employment Disputes) / Hearing and Judgment on Appellant's Appeal and Claimants' Cross Appeal Application

Legal Issues

  1. 1 Whether the Claimants were employed by the Company or by Yeung for purposes of the Employment Ordinance
  2. 2 Whether piece-rate practice could shorten statutory notice entitlement
  3. 3 Whether Deputy Judge Wong had power to grant ex parte leave to cross-appeal and validity of that order

Ratio Decidendi

On the undisputed primary facts — work performed on the Company’s premises on Company garments, Company payments into Yeung's account including amounts for severance and holiday pay, Company-paid employees' compensation premiums and Company instructions to retain staff — the Claimants were employed by the Company; statutory deeming provisions in the Employment Ordinance (s.5(1) and s.6(2)(a)) require one month's notice overriding industry practice; Deputy Judge Wong lacked power to grant ex parte leave to cross-appeal and that order is set aside; the Claimants' cross-appeal is to be adjourned pending proper application and any Registrar extension of time.

Court Disposition

Appellant's appeal dismissed; ex parte grant of leave to the Claimants to cross-appeal set aside; Claimants' cross-appeal adjourned pending proper applications and any extension by the Registrar

Orders

  • Appellant's appeal against the Presiding Officer's finding that the Company was the employer is dismissed
  • Order of Deputy Judge Wong granting the Claimants leave to cross-appeal (ex parte) is set aside