TSANG MEI SHEUNG MEIZ v. RICHFIELD REALTY LTD

TSANG MEI SHEUNG MEIZ v. RICHFIELD REALTY LTD

The court allowed the appeal in part: the Presiding Officer erred in law by failing to consider legislative intent and implied terms/other agreements when deciding whether commissions (and team leader bonus) constituted a 'sum of money in respect of' a paid sickness/holiday/annual leave day so as to permit deduction under ss 35(4), 41(6) and 41C(6); the awards were set aside and the issue remitted to the Labour Tribunal for determination limited to whether commissions and the team leader bonus can be applied as deductions. The court dismissed the employer's challenge to the Presiding Officer's finding that the Replacement Arrangement was unilateral and that there was no acceptance or...

Citation
TSANG MEI SHEUNG MEIZ 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
23 June 2016
Case Number
HCLA29/2015
Procedural Posture
Labour Tribunal Appeal to High Court (court of First Instance) / Judgment on Appeal; Matter Remitted to Labour Tribunal for Limited Retrial on Deduction Issue
Outcome
Appeal allowed in part and dismissed in part; awards in all four claims set aside and remitted to Labour Tribunal for limited retrial on deduction issue; second ground (Replacement Arrangement) dismissed
Legal Topics
Calculation of Statutory Entitlements, Deduction of Commissions From Statutory Pay, Annual Leave Pay, Sickness Allowance, Implied Terms/estoppel, Legislative Purposive Interpretation
Source Language
EN
Employment Law Labour Law Statutory Interpretation Contract Law Calculation of Statutory Entitlements Deduction of Commissions From Statutory Pay Annual Leave Pay Sickness Allowance +2 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 to High Court (court of First Instance) / Judgment on Appeal; Matter Remitted to Labour Tribunal for Limited Retrial on Deduction Issue

Legal Issues

  1. 1 Whether commissions (contractual payments) can be used to reduce statutory entitlements 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 operated as estoppel such that it should be given contractual effect
  3. 3 Whether the Presiding Officer erred by failing to consider implied terms or legislative intent when deciding deductions

Ratio Decidendi

The court allowed the appeal in part: the Presiding Officer erred in law by failing to consider legislative intent and implied terms/other agreements when deciding whether commissions (and team leader bonus) constituted a 'sum of money in respect of' a paid sickness/holiday/annual leave day so as to permit deduction under ss 35(4), 41(6) and 41C(6); the awards were set aside and the issue remitted to the Labour Tribunal for determination limited to whether commissions and the team leader bonus can be applied as deductions. The court dismissed the employer's challenge to the Presiding Officer's finding that the Replacement Arrangement was unilateral and that there was no acceptance or...

Court Disposition

Appeal allowed in part and dismissed in part; awards in all four claims set aside and remitted to Labour Tribunal for limited retrial on deduction issue; second ground (Replacement Arrangement) dismissed

Orders

  • The awards in HCLA 28/2015, 29/2015, 30/2015 and 31/2015 are set aside
  • The matters are remitted to the Labour Tribunal for determination solely on whether the statutory entitlements payable to the claimants should be reduced by payment of commissions and the Team Leader Bonus under ss 35(4), 41(6) and 41C(6) of the Employment Ordinance