CHAN KA PO v. YAN WING GARMENT MANUFACTORY LTD.

CHAN KA PO v. YAN WING GARMENT MANUFACTORY LTD.

The appeal is allowed because the Presiding Officer, despite finding the number of days worked and unpaid wages, failed to investigate and make a necessary finding whether the employee's absences were due to lack of work (a lay off under ss.31B and 31E) or due to her own reasons; absence of that finding vitiates the award and requires remittal for retrial on that issue.

Citation
CHAN KA PO v. YAN WING GARMENT MANUFACTORY LTD.
Parties
Claimant/respondent: Chan Ka Po; Defendant/appellant: Yan Wing Garment Manufactory Ltd.
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 March 1996
Case Number
HCLA166/1995
Procedural Posture
Labour Tribunal Appeal No. 166/1995 / Judgment on Appeal; Award Set Aside and Remitted for Retrial
Outcome
Appeal allowed; award of $35,295.00 set aside; matter remitted to the Presiding Officer for retrial on whether respondent's absence was due to lack of work or private reasons; no order as to costs
Legal Topics
Severance Pay, Lay Off, Wages in Lieu of Notice, Statutory Interpretation of S.31 B and S.31 E, Tribunal Fact Finding Duty
Source Language
EN
Employment Law Labour Law Procedure Severance Pay Lay Off Wages in Lieu of Notice Statutory Interpretation of S.31 B and S.31 E Tribunal Fact Finding Duty

Case Brief

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Parties

Chan Ka Po

Claimant/respondent

Yan Wing Garment Manufactory Ltd.

Defendant/appellant

Procedural Posture

Labour Tribunal Appeal No. 166/1995 / Judgment on Appeal; Award Set Aside and Remitted for Retrial

Legal Issues

  1. 1 Whether the employee was 'laid off' within the meaning of s.31E of the Employment Ordinance and thus entitled to severance payment under s.31B
  2. 2 Whether the Presiding Officer erred by failing to investigate and make a finding on whether absences were due to lack of work or the employee's own reasons
  3. 3 Whether the attendance records accurately reflected availability of work or were manipulated

Ratio Decidendi

The appeal is allowed because the Presiding Officer, despite finding the number of days worked and unpaid wages, failed to investigate and make a necessary finding whether the employee's absences were due to lack of work (a lay off under ss.31B and 31E) or due to her own reasons; absence of that finding vitiates the award and requires remittal for retrial on that issue.

Court Disposition

Appeal allowed; award of $35,295.00 set aside; matter remitted to the Presiding Officer for retrial on whether respondent's absence was due to lack of work or private reasons; no order as to costs

Orders

  • Appeal allowed
  • Award set aside