HUI LAI YING v. KWONG WAI TAI SPORTS WEAR FACTORY LTD.

HUI LAI YING v. KWONG WAI TAI SPORTS WEAR FACTORY LTD.

The 1997 Agreement, particularly clauses [1]-[3], was a sham to circumvent the Employment Ordinance and thus void under section 70; the claimant’s entire $240 daily payment constituted wages for calculating statutory entitlements; the offending parts were inseparable from the recharacterisation of wages and could...

Source-derived case information.

Citation
HUI LAI YING v. KWONG WAI TAI SPORTS WEAR FACTORY LTD.
Parties
Claimant: Claimant; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 May 2001
Case Number
HCLA8/2001
Procedural Posture
Appeal From Labour Tribunal (employment Dispute) / High Court (court of First Instance) Appeal
Outcome
Appeal dismissed
Legal Topics
Annual Leave Pay, Statutory Holidays, Sham Agreements, Severance/blue Pencil, Non Factum
Source Language
en
Employment Law Contract Law Labour Law Statutory Interpretation Annual Leave Pay Statutory Holidays Sham Agreements Severance/blue Pencil +1 more

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Summary, issues, holding and outcome

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Parties

Claimant

Claimant

Defendant

Defendant

Procedural Posture

Appeal From Labour Tribunal (employment Dispute) / High Court (court of First Instance) Appeal

Legal Issues

  1. 1 Whether clauses [1]-[3] of the 1997 Agreement are void under section 70 of the Employment Ordinance
  2. 2 Whether the offending parts of the 1997 Agreement are severable (blue pencil doctrine)
  3. 3 Whether the claimant established a plea of non-factum in relation to the 1997 Agreement

Ratio Decidendi

The 1997 Agreement, particularly clauses [1]-[3], was a sham to circumvent the Employment Ordinance and thus void under section 70; the claimant’s entire $240 daily payment constituted wages for calculating statutory entitlements; the offending parts were inseparable from the recharacterisation of wages and could not be severed, so the Presiding Officer’s calculation and award were correct.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to the claimant against the defendant, to be taxed if not agreed