YUM SIU WAH v. AUTO ITALIA LTD

YUM SIU WAH v. AUTO ITALIA LTD

Tribunal's factual findings were supported by the evidence: clause 5 did not by its terms extinguish rest day rights and fell within consensual arrangements under EO s20; commission entitlement accrues on completion of transaction absent express contractual provision to the contrary; where deposits were refunded the defendant derived no benefit and no commission accrued; alternative implied term and equity arguments were unrealistic; therefore appeal dismissed.

Citation
[2020] HKCFI 2965
Parties
Claimant (appellant): Yum Siu Wah; Defendant (respondent): Auto Italia Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
27 November 2020
Case Number
HCLA14/2018
Procedural Posture
Labour Tribunal Appeal (employment Dispute) / Judgment on Appeal (court of First Instance)
Outcome
Appeal dismissed in its entirety
Legal Topics
Rest Day Entitlement, Commission Accrual, Implied Terms, Statutory Interpretation of Employment Ordinance Ss17/70, Appeal Standard From Labour Tribunal, Costs
Source Language
EN
Employment Law Labour Law Contract Law Civil Procedure Rest Day Entitlement Commission Accrual Implied Terms Statutory Interpretation of Employment Ordinance Ss17/70 +2 more

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Parties

Yum Siu Wah

Claimant (appellant)

Auto Italia Limited

Defendant (respondent)

Procedural Posture

Labour Tribunal Appeal (employment Dispute) / Judgment on Appeal (court of First Instance)

Legal Issues

  1. 1 Whether clause 5 of the employment contract purported to extinguish or reduce statutory rest day rights under Employment Ordinance s17 and was void under s70
  2. 2 Whether commissions for 31 cancelled contracts had accrued before termination or were payable despite subsequent cancellation
  3. 3 Whether an implied contractual term should require employer to use best endeavours to complete contracts post-termination so as to vest commission

Ratio Decidendi

Tribunal's factual findings were supported by the evidence: clause 5 did not by its terms extinguish rest day rights and fell within consensual arrangements under EO s20; commission entitlement accrues on completion of transaction absent express contractual provision to the contrary; where deposits were refunded the defendant derived no benefit and no commission accrued; alternative implied term and equity arguments were unrealistic; therefore appeal dismissed.

Court Disposition

Appeal dismissed in its entirety

Orders

  • Appeal dismissed on all grounds
  • Costs to defendant including reserved costs and costs of defendant's summons filed 15 March 2019 and hearing of 30 April 2019