TSEUNG WAI CHUEN v. PACIFIC SHOREBIRD (H.K.) LTD.

TSEUNG WAI CHUEN v. PACIFIC SHOREBIRD (H.K.) LTD.

The Court held that the $3,350 monthly overtime was a regular and integral part of the appellant's monthly wages (representing about 43% of total monthly pay) and must be included in calculations of WILON, annual leave, statutory holiday pay, double pay and severance; the proper date of termination was 20 January 1995 (as admitted by respondent); consequently the Tribunal's award was set aside and substituted with recalculated totals resulting in a total award of $56,747.55.

Citation
TSEUNG WAI CHUEN v. PACIFIC SHOREBIRD (H.K.) LTD.
Parties
Claimant/appellant: Tseung Wai Chuen; Defendant/respondent: Pacific Shorebird (H.K.) Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 July 1997
Case Number
HCLA49/1996
Procedural Posture
Labour Tribunal Appeal No. 49 of 1996 / High Court Judgment on Appeal (appeal Allowed)
Outcome
Appeal allowed; Tribunal award set aside and substituted
Legal Topics
Overtime Pay Characterisation, Severance Pay Calculation, Constructive Dismissal, Employees Compensation Ordinance Compliance, Evidence and Credibility
Source Language
EN
Employment Law Labour Law Administrative Law Overtime Pay Characterisation Severance Pay Calculation Constructive Dismissal Employees Compensation Ordinance Compliance Evidence and Credibility

Case Brief

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Parties

Tseung Wai Chuen

Claimant/appellant

Pacific Shorebird (H.K.) Limited

Defendant/respondent

Procedural Posture

Labour Tribunal Appeal No. 49 of 1996 / High Court Judgment on Appeal (appeal Allowed)

Legal Issues

  1. 1 Whether monthly overtime allowance of $3,350 is part of regular monthly wages for purposes of WILON and severance pay
  2. 2 Proper date of termination of employment and effect of Employees Compensation Ordinance provisions on dismissal
  3. 3 Appropriate approach to assessing whether payments labelled overtime are integral to wages

Ratio Decidendi

The Court held that the $3,350 monthly overtime was a regular and integral part of the appellant's monthly wages (representing about 43% of total monthly pay) and must be included in calculations of WILON, annual leave, statutory holiday pay, double pay and severance; the proper date of termination was 20 January 1995 (as admitted by respondent); consequently the Tribunal's award was set aside and substituted with recalculated totals resulting in a total award of $56,747.55.

Court Disposition

Appeal allowed; Tribunal award set aside and substituted

Orders

  • Award substituted with the following itemised amounts: Wages in lieu of notice: $11,050.00 (6,700 basic +1,000 supervisor allowance +3,350 overtime)
  • Annual leave pay (Jan-Dec 1994): $5,156.00