Hong Kong Case Law: Decisions & Judgments

Topic

Continuous employment

Legal area

Court

22 Jun 2010

FONG ANNE v. HONG KONG ADVENTIST HOSPITAL

Citation

FONG ANNE v. HONG KONG ADVENTIST HOSPITAL
Court

Court of First Instance
Case number

HCLA33/2009

Court held that the Presiding Officer erred in law by treating unpaid voluntary stand-by as contractual hours and by applying paragraph 3(2)(b) without evidence of a global contract/mutuality; the Hospital discharged its burden to show six weeks of unexplained absence (three within the crucial 24 months) thereby breaking continuity and disqualifying the claimant from statutory severance although the finding of dismissal by redundancy was supported by evidence; claims on hours requiring detailed factual findings (annual leave, holiday pay, sickness allowance) were remitted to the Labour Tribun…
18 Oct 2006

WONG MAN SUM v. WONDERLAND SEA FOOD RESTAURANT O/B LONG YIELD CO LTD

Citation

WONG MAN SUM v. WONDERLAND SEA FOOD RESTAURANT O/B LONG YIELD CO LTD
Court

Court of Appeal
Case number

CACV241/2005

Appeal allowed: where successive fixed-term contracts are separated by a break and there is no mutual arrangement or employer conduct treating the employee as continuing in employment during the break, the period does not count as continuous employment under s31B and the severance award cannot stand; a promise or settled expectation to re-employ is insufficient without mutual recognition that employment continued during the break.
10 Jun 2005

WONG MAN SUM v. WONDERLAND SEA FOOD RESTAURANT O/B LONG YIELD CO LTD

Citation

WONG MAN SUM v. WONDERLAND SEA FOOD RESTAURANT O/B LONG YIELD CO LTD
Court

Court of First Instance
Case number

HCLA133/2002

Where a short intermission between successive fixed‑term contracts exists, continuity will be preserved and severance remain payable if the tribunal is satisfied the break was part of an employer scheme or mutual arrangement to avoid statutory liabilities; the tribunal's factual findings on that point are decisive and will not be disturbed on appeal.
5 Nov 2004

REYES ELENA E v. UNITED STATES MARINE CORPS, MARINE SECURITY GUARD DETACHMENT, AMERICAN CONSULATE GENERAL, HONG KONG

Citation

REYES ELENA E v. UNITED STATES MARINE CORPS, MARINE SECURITY GUARD DETACHMENT, AMERICAN CONSULATE GENERAL, HONG KONG
Court

Court of First Instance
Case number

HCLA87/2004

Leave to appeal was granted because it was reasonably arguable that the Tribunal's finding that individual service members were the employers (and not the Defendant) was unsupported or based on a misapprehension of key exhibits (C-7, C-8, C-10) and therefore constituted an error of law; additionally the time-bar defence was defeated by the Commissioner for Labour's extension under Section 31N and the issue of continuity of employment was at least arguable.
10 Jul 2004

POON SIU KUEN AND OTHERS v. PINE CORPORTION LTD

Citation

POON SIU KUEN AND OTHERS v. PINE CORPORTION LTD
Court

Court of First Instance
Case number

HCLA71/2001

The Presiding Officer erred in treating absence of mutuality of obligation at Freedland's second level as fatal to finding a contract of service for each specific engagement; for each engagement mutuality is satisfied by the obligation to perform work for remuneration (first level) and control considerations determine whether that contract is a contract of service; mutuality on the second level is only decisive where a claimant must rely on a global/umbrella contract to meet statutory continuous employment thresholds under the Employment Ordinance.
4 Aug 2003

FONG\'S NATIONAL ENGINEERING CO LTD AND OTHERS v. WONG WAI YUK AND ANOTHER

Citation

FONG\'S NATIONAL ENGINEERING CO LTD AND OTHERS v. WONG WAI YUK AND ANOTHER
Court

Court of First Instance
Case number

HCA573/2003

Court found a serious question to be tried and prima facie prospects of success: evidence established continuity of employment governed by the Letter of Appointment; quoted customer-specific pricing plausibly amounts to confidential information equivalent to trade secret; alleged diversion of a maturing business opportunity engaged fiduciary duties; balance of convenience favoured granting interlocutory injunctions to prevent irreparable harm; injunctions granted subject to undertaking and speedy trial.
16 Jan 2003

MOHAMMAD JAVID v. MADA CONSTRUCTION & ENGINEERING LTD.

Citation

MOHAMMAD JAVID v. MADA CONSTRUCTION & ENGINEERING LTD.
Court

Court of First Instance
Case number

HCLA47/2002

The Presiding Officer erred in law by resolving material factual disputes (whether absences were authorised and whether employment subsisted) on the basis of documents without hearing evidence or permitting cross-examination; consequently the appeal is allowed and the matter is remitted to the Labour Tribunal for retrial before another Presiding Officer.
14 Jul 1995

LEUNG WAN KEE SHIPYARD LTD v. LIK SHAU FOO AND OTHERS

Citation

LEUNG WAN KEE SHIPYARD LTD v. LIK SHAU FOO AND OTHERS
Court

Court of First Instance
Case number

HCLA3/1995

The Presiding Officer failed to apply the statutory concept of "continuous contract" as defined by the Employment Ordinance (notably the 18-hour per week requirement and enumerated exceptions), thereby misdirecting himself; accordingly the appeals concerning the 2nd and 3rd respondents are allowed and those matters are remitted to the Labour Tribunal for proper findings, while the appeal relating to the 4th respondent is dismissed.
24 May 1995

LUEN HING ENGINEERING CO. v. LAM CHO KWAN and Others

Citation

LUEN HING ENGINEERING CO. v. LAM CHO KWAN and Others
Court

Court of First Instance
Case number

HCLA15/1995

Given the defence admitted employment over 4 or more weeks, the employer's conduct (agreement to pay holiday leave and mediated settlement) was inconsistent with one-day contracts; there was no express agreement to limit contracts to one day; therefore the Presiding Officer properly treated the contracts as continuous and correctly applied s6(2)(a) to award one month (26 days) wages in lieu of notice; the appeal was dismissed.
6 Jun 1984

YEE LEE SEA-LAND FORWARDING CO LTD v. YIP LING TO AND OTHERS

Citation

YEE LEE SEA-LAND FORWARDING CO LTD v. YIP LING TO AND OTHERS
Court

Court of First Instance
Case number

HCLA13/1984

Leave to appeal was granted because the question of the legal meaning of "continuous" employment under the Ordinance and attendant burden of proof was arguable and properly the subject of appellate determination; permission was also granted to seek remission to the tribunal for reassessment of the severance amount; the factual finding that the claimants were employees was abandoned as a ground and left undisturbed.