LAING AGNES AND OTHERS v. LISBETH ENTERPRISES LTD t/a PHILLIP WAIN INTERNATIONAL

LAING AGNES AND OTHERS v. LISBETH ENTERPRISES LTD t/a PHILLIP WAIN INTERNATIONAL

The court held that 'wages' in ss41(1) and 41C(1) of the Employment Ordinance includes contractual commission; the employer had not paid 'ordinary wages' inclusive of commission so s42 did not apply; clause 8 was either inapplicable to holiday pay or void to the extent it reduced statutory rights under s70; appeal allowed and matter remitted to the Labour Tribunal for quantification of commission-based holiday and annual leave pay.

Citation
LAING AGNES AND OTHERS v. LISBETH ENTERPRISES LTD t/a PHILLIP WAIN INTERNATIONAL
Parties
Claimant (abandoned Appeal): Laing Agnes; 2nd Claimant / Appellant: Luk See Ming Mandy; Claimant (abandoned Appeal): Leong Sook Meng; Defendant / Respondent: Lisbeth Enterprises Limited trading as Phillip Wain International
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 June 2004
Case Number
HCLA133/2003
Procedural Posture
Labour Tribunal Appeal to High Court / Judgment on Appeal
Outcome
Appeal allowed; decision of the Labour Tribunal set aside in part and claim remitted for retrial on quantum
Legal Topics
Holiday Pay, Annual Leave Pay, Commission Inclusion in Wages, Contracting Out and Void Terms, Estoppel and Implied Agreement, Remittal for Quantification
Source Language
EN
Employment Law Labour Law Contract Law Statutory Interpretation Holiday Pay Annual Leave Pay Commission Inclusion in Wages Contracting Out and Void Terms +2 more

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Parties

Laing Agnes

Claimant (abandoned Appeal)

Luk See Ming Mandy

2nd Claimant / Appellant

Leong Sook Meng

Claimant (abandoned Appeal)

Lisbeth Enterprises Limited trading as Phillip Wain International

Defendant / Respondent

Procedural Posture

Labour Tribunal Appeal to High Court / Judgment on Appeal

Legal Issues

  1. 1 Whether contractual commission forms part of 'wages' for calculating statutory holiday pay under s41(1) of the Employment Ordinance
  2. 2 Whether contractual commission forms part of 'wages' for calculating statutory annual leave pay under s41C(1) of the Employment Ordinance
  3. 3 Whether payment of 'ordinary wages' by employer precludes additional statutory holiday or annual leave pay under s42

Ratio Decidendi

The court held that 'wages' in ss41(1) and 41C(1) of the Employment Ordinance includes contractual commission; the employer had not paid 'ordinary wages' inclusive of commission so s42 did not apply; clause 8 was either inapplicable to holiday pay or void to the extent it reduced statutory rights under s70; appeal allowed and matter remitted to the Labour Tribunal for quantification of commission-based holiday and annual leave pay.

Court Disposition

Appeal allowed; decision of the Labour Tribunal set aside in part and claim remitted for retrial on quantum

Orders

  • Appeal allowed and order of the Labour Tribunal against the 2nd Claimant set aside
  • The 2nd Claimant's claim for holiday pay and annual leave pay to be remitted to the Labour Tribunal for retrial before another Presiding Officer to quantify amounts taking contractual commission into account