NG PIK YUK v. WAI TAI KNITWEAR LTD

NG PIK YUK v. WAI TAI KNITWEAR LTD

Applying the multifactor test and weighing the primary facts (exclusive service, factory premises and tools provided by respondent, payment and wage calculation by respondent, lack of independent business or capital risk, expectation of attendance and supervisory duties) the relationship was in law a contract of service; the Tribunal Officer erred by over-weighting labels and the 10% allowance and by misapprehending wage-sheet evidence. The appellant is an employee; matter remitted to the Labour Tribunal to determine liability and quantum.

Citation
NG PIK YUK v. WAI TAI KNITWEAR LTD
Parties
Applicant/claimant: NG PIK YUK; Respondent/defendant: WAI TAI KNITWEAR LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 February 1988
Case Number
HCLA49/1987
Procedural Posture
Labour Tribunal Appeal / High Court Appeal Judgment Remitting Matter to Tribunal
Outcome
Appeal allowed; Tribunal Officer's finding that the appellant was a sub-contractor set aside; matter remitted to the Labour Tribunal for determination of liability and quantum on the basis that the appellant was an employee.
Legal Topics
Employment Status, Contract of Service V Contract for Services, Holiday Pay, Severance/long Service Pay, Multifactor Test for Employment
Source Language
EN
Employment Law Labour Law Contract Law Employment Status Contract of Service V Contract for Services Holiday Pay Severance/long Service Pay Multifactor Test for Employment

Case Brief

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Parties

NG PIK YUK

Applicant/claimant

WAI TAI KNITWEAR LIMITED

Respondent/defendant

Procedural Posture

Labour Tribunal Appeal / High Court Appeal Judgment Remitting Matter to Tribunal

Legal Issues

  1. 1 Whether the appellant was an employee or an independent sub-contractor
  2. 2 Whether the Labour Tribunal Officer erred in law by giving weight to labels and partial wage-sheet references
  3. 3 Application of the multifactor test to determine contractual relationship

Ratio Decidendi

Applying the multifactor test and weighing the primary facts (exclusive service, factory premises and tools provided by respondent, payment and wage calculation by respondent, lack of independent business or capital risk, expectation of attendance and supervisory duties) the relationship was in law a contract of service; the Tribunal Officer erred by over-weighting labels and the 10% allowance and by misapprehending wage-sheet evidence. The appellant is an employee; matter remitted to the Labour Tribunal to determine liability and quantum.

Court Disposition

Appeal allowed; Tribunal Officer's finding that the appellant was a sub-contractor set aside; matter remitted to the Labour Tribunal for determination of liability and quantum on the basis that the appellant was an employee.

Orders

  • Appeal allowed
  • Finding that appellant was a sub-contractor set aside