CHEUNG KWOK KWONG v. SHUN SHING CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER

CHEUNG KWOK KWONG v. SHUN SHING CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER

The Tribunal erred by treating the per-floor remuneration as operative without any finding of agreement between the parties; because the change in remuneration was a decisive factor in classifying the Claimant as a subcontractor, lack of consensus vitiates that conclusion, entitling the appellant to have the lower decision set aside and the claim remitted for retrial.

Citation
CHEUNG KWOK KWONG v. SHUN SHING CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER
Parties
Claimant (appellant): Cheung Kwok Kwong; 1st Defendant (1st Respondent): Shun Shing Construction & Engineering Co. Ltd.; 2nd Defendant (2nd Respondent): Yat Kwai Construction Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 July 2004
Case Number
HCLA24/2003
Procedural Posture
Labour Tribunal Appeal / Appeal Judgment (high Court)
Outcome
Appeal allowed; order below set aside and claim remitted to the Labour Tribunal for retrial before another Presiding Officer
Legal Topics
Status of Worker, Employment V Subcontractor, Change of Remuneration, Repudiation and Acceptance, Retrial
Source Language
EN
Employment Law Contract Law Labour Tribunal Procedure Status of Worker Employment V Subcontractor Change of Remuneration Repudiation and Acceptance Retrial

Case Brief

Summary, issues, holding and outcome

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Parties

Cheung Kwok Kwong

Claimant (appellant)

Shun Shing Construction & Engineering Co. Ltd.

1st Defendant (1st Respondent)

Yat Kwai Construction Company Limited

2nd Defendant (2nd Respondent)

Procedural Posture

Labour Tribunal Appeal / Appeal Judgment (high Court)

Legal Issues

  1. 1 Whether the Tribunal correctly found the Claimant became a subcontractor from November 2000
  2. 2 Whether there was an agreement to change remuneration from $800 per day to $2,400 per floor
  3. 3 Whether a unilateral change and alleged acceptance of repudiation could alter employment status

Ratio Decidendi

The Tribunal erred by treating the per-floor remuneration as operative without any finding of agreement between the parties; because the change in remuneration was a decisive factor in classifying the Claimant as a subcontractor, lack of consensus vitiates that conclusion, entitling the appellant to have the lower decision set aside and the claim remitted for retrial.

Court Disposition

Appeal allowed; order below set aside and claim remitted to the Labour Tribunal for retrial before another Presiding Officer

Orders

  • Order allowing the appeal and setting aside the order of the Tribunal below
  • Claim remitted to the Labour Tribunal for retrial before another Presiding Officer