23 Feb 2021
Leave to appeal was refused because the applicant failed to identify any legal error or jurisdictional excess by the Labour Tribunal; the Tribunal's factual findings, including adverse credibility findings against the claimant and acceptance of the employer's documentary and witness evidence, were valid bases for its decision that the contract expired and no dismissal occurred.
13 Apr 2005
Leave to appeal was refused because the central issue—whether para 5 applies on the death of a sole proprietor—was fact‑sensitive in this case and did not raise a question of law of general public importance for the purposes of s.35A Labour Tribunal Ordinance.
24 Nov 2004
The court held that on the facts the business of the father had been transferred to the son for the purposes of paragraph 5 of the First Schedule to the Employment Ordinance, and that paragraph 5 continues the contract of employment for all benefits of employment (including statutory holidays and annual leave), not merely long service payment.
9 Dec 2003
Leave to appeal is granted only on the narrow ground that the Presiding Officer may have failed to consider apparent gaps in continuity of employment shown in specified exhibits; other grounds fail because the Presiding Officer lawfully exercised his discretion in refusing an adjournment, properly weighed the evidence, and complied with the Tribunal's duty to proceed expeditiously.
9 Jul 2003
The court held that Paragraphs 2 and 3 must be read together: continuity is broken if in any week (Sunday–Saturday) the employee worked under 18 hours unless an exception applies; Yam J's 4-week non-working formulation was obiter and not authoritative on the point. Applying that test the Presiding Officer erred in law in reasoning, but on the evidence the court drew the permissible inference of a tacit/global re-engagement and concluded the alleged short break was an artificial device to avoid Part VIA liabilities and therefore the employment was regarded as continuous; accordingly the Labour…
26 Aug 2002
Leave to appeal was granted because the Presiding Officer's decision disclosed arguable errors of law and inadequate fact‑finding: failure to apply para 3(2)(b) to continuity, failure to investigate the nature of the absences, and failure to consider evidence that employment subsisted on 15 October 2001, thereby justifying appellate consideration.
6 Mar 1995
On the facts the more probable inference was that the father's business was transferred to the son’s company: the businesses were same trade, same name, son worked as manager, father ceased trading soon after; therefore claimants' prior service counted for continuity; claimants were employees not independent contractors; the Presiding Officer erred in law and failed adequately to investigate dismissal; appeal allowed and matter remitted for retrial.
27 Oct 1989
The Court held that the statutory definition of 'associated company' in section 31K is exhaustive and mere close commercial operation or informal affiliation is insufficient to import continuity of employment; however, given factual indicia suggesting deeper links and transfers, the award was set aside and the matter remitted to the Labour Tribunal for further factual inquiry into association, transfers, implied terms, estoppel or transfer of business.
15 May 1985
Court upheld the Labour Tribunal: factual findings that management acquiesced in employees attending consultations meant there was no strike or wilful refusal to work, continuity was not broken, the dismissals were attributable to redundancy and the presumption under s.31Q was not rebutted; accordingly wages for the disputed period and severance payments awarded by the Tribunal were upheld and the appeal was dismissed.
30 Mar 1978
There was no transfer of a trade, business or undertaking from the subcontractor to the principal because there was no sale or transfer of premises, goodwill or stock-in-trade; the appellant simply re-employed the workforce to finish a project, so continuity of employment under paragraph 5 was not established and the Labour Tribunal's award of wages in lieu of notice against the appellant was erroneous in law and must be set aside.