MO KWOK KEI v. RICHFIELD REALTY LTD

MO KWOK KEI v. RICHFIELD REALTY LTD

Leave to appeal granted because the appellant demonstrated arguable errors of law on the commission set-off point (interpretation/application of ss35(4),41(6),41C(6)) and an arguable failure by the Presiding Officer to investigate the factual/legal effect of claimants' alleged acceptance of the Replacement Arrangement, such failures could give rise to injustice making an appeal appropriate.

Citation
MO KWOK KEI v. RICHFIELD REALTY LTD
Parties
Claimant (respondent): Mak Wai Man (麥偉文); Claimant (respondent): Tsang Mei Sheung Meiz (曾美嫦); Claimant (respondent): Mo Kwok Kei (巫國基); Claimant (respondent): Fung Pui Wah Sally (馮佩華); Defendant (appellant): Richfield Realty Limited (田生地產有限公司)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 October 2015
Case Number
HCLA30/2015
Procedural Posture
Labour Tribunal Appeal / Leave to Appeal (application Heard and Determined)
Outcome
Leave to appeal granted
Legal Topics
Holiday Pay, Annual Leave, Sickness Allowance, Daily Average Wage, Commissions, Leave to Appeal
Source Language
EN
Employment Law Labour Law Statutory Interpretation Holiday Pay Annual Leave Sickness Allowance Daily Average Wage Commissions +1 more

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Parties

Mak Wai Man (麥偉文)

Claimant (respondent)

Tsang Mei Sheung Meiz (曾美嫦)

Claimant (respondent)

Mo Kwok Kei (巫國基)

Claimant (respondent)

Fung Pui Wah Sally (馮佩華)

Claimant (respondent)

Richfield Realty Limited (田生地產有限公司)

Defendant (appellant)

Procedural Posture

Labour Tribunal Appeal / Leave to Appeal (application Heard and Determined)

Legal Issues

  1. 1 Whether travel allowance and team leader bonus form part of wages for Daily Average Wage calculation under EO
  2. 2 Whether commissions may be set off against Statutory Entitlements under sections 35(4), 41(6) and 41C(6) of the Employment Ordinance
  3. 3 Whether employer could treat deducted Chinese New Year holidays as 'free holidays' and substitute replacement annual leave without employee consent contrary to s41F EO

Ratio Decidendi

Leave to appeal granted because the appellant demonstrated arguable errors of law on the commission set-off point (interpretation/application of ss35(4),41(6),41C(6)) and an arguable failure by the Presiding Officer to investigate the factual/legal effect of claimants' alleged acceptance of the Replacement Arrangement, such failures could give rise to injustice making an appeal appropriate.

Court Disposition

Leave to appeal granted

Orders

  • Leave to appeal granted
  • Leave to rely on revised amended application granted at hearing