CHOW WAI YEE AND OTHERS v. FONG\'S NATIONAL ENGINEERING CO LTD

CHOW WAI YEE AND OTHERS v. FONG\'S NATIONAL ENGINEERING CO LTD

Where work beyond contractual hours was performed daily, expected by the employer, integrated into planning (production schedule, transport) and employees had to obtain permission to leave early, those extra hours were not "overtime" for the purposes of the Employment Ordinance but formed part of the employees' normal/regular working time; therefore pay for those hours and the Attendance/Diligence Bonus (a regular, conditional component of pay) are wages recoverable in computing severance pay.

Citation
CHOW WAI YEE AND OTHERS v. FONG\'S NATIONAL ENGINEERING CO LTD
Parties
Applicants / Employees: Liu Kwok King and 203 others; Claimant / Employee: Chow Wai Yee; Claimant / Employee: Wong Wing Cheung; Respondent / Employer: Fong's National Engineering Co. Ltd
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 January 1996
Case Number
HCLA65/1995
Procedural Posture
Labour Tribunal Appeal / High Court Appeal Judgment (final Determination)
Outcome
Employer's appeal dismissed; Employees' cross-appeal allowed
Legal Topics
Severance Pay, Definition of Wages, Overtime, Attendance/diligence Bonus, Variation of Contract by Conduct
Source Language
EN
Employment Law Labour Law Severance Pay Definition of Wages Overtime Attendance/diligence Bonus Variation of Contract by Conduct

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Parties

Liu Kwok King and 203 others

Applicants / Employees

Chow Wai Yee

Claimant / Employee

Wong Wing Cheung

Claimant / Employee

Fong's National Engineering Co. Ltd

Respondent / Employer

Procedural Posture

Labour Tribunal Appeal / High Court Appeal Judgment (final Determination)

Legal Issues

  1. 1 Whether payments for work done between 5:00pm and 6:00/7:00pm are "overtime pay" and therefore excluded from "wages" for severance computation under the Employment Ordinance
  2. 2 Whether Attendance Bonus / Diligence Bonus constitutes wages payable in respect of work done and must be included in severance calculation
  3. 3 Whether regular, expected overtime becomes part of normal/regular working hours by conduct

Ratio Decidendi

Where work beyond contractual hours was performed daily, expected by the employer, integrated into planning (production schedule, transport) and employees had to obtain permission to leave early, those extra hours were not "overtime" for the purposes of the Employment Ordinance but formed part of the employees' normal/regular working time; therefore pay for those hours and the Attendance/Diligence Bonus (a regular, conditional component of pay) are wages recoverable in computing severance pay.

Court Disposition

Employer's appeal dismissed; Employees' cross-appeal allowed

Orders

  • Overtime pay for the hours routinely worked to 6:00pm/7:00pm to be included in computation of severance payment
  • Attendance Bonus / Diligence Bonus to be included in computation of severance payment