MAK WAI MAN v. RICHFIELD REALTY LTD

MAK WAI MAN v. RICHFIELD REALTY LTD

Allowed appeal on issue of whether commissions/team leader bonus could be deducted under ss 35(4), 41(6) and 41C(6): Presiding Officer erred by failing to consider legislative intent and whether commissions might be treated as payments in respect of paid leave (including implied terms/other agreements); matter remitted to Labour Tribunal to determine whether commissions and team leader bonus reduce statutory entitlements. Dismissed appeal on Replacement Arrangement: Presiding Officer’s finding that arrangement was unilateral and not accepted or estopped was supported by evidence and will stand.

Citation
MAK WAI MAN v. RICHFIELD REALTY LTD
Parties
Claimant (respondent): MAK WAI MAN; Claimant (respondent): TSANG MEI SHEUNG MEIZ; Claimant (respondent): MO KWOK KEI; Claimant (respondent): FUNG PUI WAH SALLY; Defendant (appellant): RICHFIELD REALTY LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 June 2016
Case Number
HCLA28/2015
Procedural Posture
Labour Tribunal Appeal to the High Court (court of First Instance) / Hearing of Appeal; Judgment Remitting Limited Issue to Labour Tribunal
Outcome
Award in each of the four claims set aside in part; appeal allowed on statutory deduction issue and dismissed on Replacement Arrangement; matter remitted to Labour Tribunal for limited determination
Legal Topics
Statutory Entitlements, Holiday Pay, Annual Leave Pay, Sickness Allowance, Deduction of Commission, Replacement Arrangement, Estoppel, Implied Terms, Legislative Intent
Source Language
EN
Employment Law Labour Law Statutory Interpretation Contract Law Statutory Entitlements Holiday Pay Annual Leave Pay Sickness Allowance +5 more

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Parties

MAK WAI MAN

Claimant (respondent)

TSANG MEI SHEUNG MEIZ

Claimant (respondent)

MO KWOK KEI

Claimant (respondent)

FUNG PUI WAH SALLY

Claimant (respondent)

RICHFIELD REALTY LIMITED

Defendant (appellant)

Procedural Posture

Labour Tribunal Appeal to the High Court (court of First Instance) / Hearing of Appeal; Judgment Remitting Limited Issue to Labour Tribunal

Legal Issues

  1. 1 Whether contractual commission and team leader bonus can be used to reduce statutory sickness allowance/holiday pay/annual leave pay under sections 35(4), 41(6) and 41C(6) of the Employment Ordinance
  2. 2 Whether the employer’s Replacement Arrangement over CNY holidays was accepted by employees or they are estopped from denying it (mutual variation/estoppel)
  3. 3 Proper statutory interpretation of the Deduction Sub‑sections in light of legislative intent and legislative history

Ratio Decidendi

Allowed appeal on issue of whether commissions/team leader bonus could be deducted under ss 35(4), 41(6) and 41C(6): Presiding Officer erred by failing to consider legislative intent and whether commissions might be treated as payments in respect of paid leave (including implied terms/other agreements); matter remitted to Labour Tribunal to determine whether commissions and team leader bonus reduce statutory entitlements. Dismissed appeal on Replacement Arrangement: Presiding Officer’s finding that arrangement was unilateral and not accepted or estopped was supported by evidence and will stand.

Court Disposition

Award in each of the four claims set aside in part; appeal allowed on statutory deduction issue and dismissed on Replacement Arrangement; matter remitted to Labour Tribunal for limited determination

Orders

  • Award in each of the four claims set aside
  • Remit matter to the Labour Tribunal for determination only on whether statutory entitlements payable to the claimants should be reduced by payment of commissions and the Team Leader Bonus under sections 35(4), 41(6) and 41C(6) of the Employment Ordinance