MO KWOK KEI v. RICHFIELD REALTY LTD

MO KWOK KEI v. RICHFIELD REALTY LTD

The Presiding Officer erred in law by failing to consider implied terms, other agreements or the legislative intent behind the 2007 amendments when excluding commissions from deduction under ss35(4), 41(6) and 41C(6); accordingly the appeals are allowed in part and the awards are set aside and remitted to the Labour Tribunal to determine whether commissions and team leader bonus constitute sums paid in respect of paid sick/holiday/annual leave days and thus may be deducted. The Presiding Officer's finding that the employer's Replacement Arrangement was a unilateral imposition was supported by the evidence and that ground of appeal is dismissed (no acceptance or estoppel by the claimants).

Citation
MO KWOK KEI 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
HCLA30/2015
Procedural Posture
Labour Tribunal Appeal to Court of First Instance / High Court Appeal After Leave Granted; Judgment and Remittal to Labour Tribunal for Further Determination on Deduction Issue
Legal Topics
Calculation of Statutory Entitlements, Deduction of Commission From Statutory Pay, Annual Leave, Sickness Allowance, Estoppel, Contract Variation
Source Language
EN
Employment Law Statutory Interpretation Labour Tribunal Procedure Calculation of Statutory Entitlements Deduction of Commission From Statutory Pay Annual Leave Sickness Allowance Estoppel +1 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 Court of First Instance / High Court Appeal After Leave Granted; Judgment and Remittal to Labour Tribunal for Further Determination on Deduction Issue

Legal Issues

  1. 1 Whether contractual commissions (and team leader bonus) may be used to reduce statutory entitlements under ss35(4), 41(6) and 41C(6) of the Employment Ordinance
  2. 2 Whether the employer's 'Replacement Arrangement' for CNY holidays bound the employees by agreement or estoppel such that it should be applied in calculating annual leave pay

Ratio Decidendi

The Presiding Officer erred in law by failing to consider implied terms, other agreements or the legislative intent behind the 2007 amendments when excluding commissions from deduction under ss35(4), 41(6) and 41C(6); accordingly the appeals are allowed in part and the awards are set aside and remitted to the Labour Tribunal to determine whether commissions and team leader bonus constitute sums paid in respect of paid sick/holiday/annual leave days and thus may be deducted. The Presiding Officer's finding that the employer's Replacement Arrangement was a unilateral imposition was supported by the evidence and that ground of appeal is dismissed (no acceptance or estoppel by the claimants).