MERCIALES, SALLY C. v. WONG TANG TAT

MERCIALES, SALLY C. v. WONG TANG TAT

The tribunal's finding that the statutory presumption of redundancy was rebutted on the balance of probabilities because the respondent's household required and engaged another helper whose duties were substantially similar (only de minimis differences) meant the dismissal was not by reason of redundancy; additionally the appellant's voluntary acceptance of alternative employment for higher wages constituted a consensual discharge of the contract, barring a claim for wages in lieu of notice.

Citation
MERCIALES, SALLY C. v. WONG TANG TAT
Parties
Claimant/appellant: Sally C. Merciales; Defendant/respondent: Wong Tang Tat
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 February 1997
Case Number
HCLA105/1996
Procedural Posture
Labour Tribunal Appeal (employment Dispute) / Judgment on Appeal (dismissed)
Outcome
Appeal dismissed
Legal Topics
Severance Pay, Redundancy, Wages in Lieu of Notice, Termination of Employment, Domestic Helper
Source Language
EN
Employment Law Labour Law Severance Pay Redundancy Wages in Lieu of Notice Termination of Employment Domestic Helper

Case Brief

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Parties

Sally C. Merciales

Claimant/appellant

Wong Tang Tat

Defendant/respondent

Procedural Posture

Labour Tribunal Appeal (employment Dispute) / Judgment on Appeal (dismissed)

Legal Issues

  1. 1 Whether dismissal was by reason of redundancy under section 31B(1)(a) of the Employment Ordinance
  2. 2 Whether the statutory presumption in section 31Q that dismissal is by reason of redundancy was rebutted
  3. 3 Whether the release letter constituted a written admission amounting to redundancy

Ratio Decidendi

The tribunal's finding that the statutory presumption of redundancy was rebutted on the balance of probabilities because the respondent's household required and engaged another helper whose duties were substantially similar (only de minimis differences) meant the dismissal was not by reason of redundancy; additionally the appellant's voluntary acceptance of alternative employment for higher wages constituted a consensual discharge of the contract, barring a claim for wages in lieu of notice.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Appellant's costs to be taxed in accordance with Legal Aid Regulations