WONG CHUI v. GLOUCESTER RESTAURANT

DCCJ001400A/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO 1400 OF 1969

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BETWEEN :
	Wong Chui	Plaintiff
	AND
	Gloucester Restaurant	Defendant

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Coram: W.S. Collier, in Court.

Date of Judgment: 26 August 1969

 

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JUDGMENT UPON APPLICATION FOR REVIEW

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1. Mr. Arculli, of counsel, in the first instance, took the point that my judgment herein was wrong in that the Employment Ordinance was a codifying enactment and that the common law was thereby ousted. However, in the course of his argument he said that, nonetheless, certain restrictive covenants could attach to a contract of service under the Employment Ordinance. In my judgment once that is admitted, that is the end of the argument that the Employment Ordinance is a codifying enactment.

2. It is common practice in Hong Kong for the contract of service of a foreman mechanic of a garage to provide that he shall not set up in business on his own in the immediate vicinity nor solicit customers of his employer upon termination of his contract. I cannot find anything in the Employment Ordinance which deals with such covenants. It is only right and proper that such restrictive covenants should be part of the terms of such a contract and I am therefore comfirmed in my original view that the Employment Ordinance and the common law can both apply to one contract of service.

3. Perhaps observing that his argument on this point was not being received with much favour, Mr. Arculli then said that he was going to take a point that would result in the plaintiff in this case succeeding, but on grounds somewhat different from those in my judgment. He submitted that because the defendant had purported to dismiss the plaintiff under item (b) of section 8 of the Employment Ordinance, but failed, that the common law only applied to the contract of employment and that the plaintiff was entitled to common law damages, which would amount to the said sum awarded as the result of my judgment. His purpose in so doing was that he could therefore, if successful, advise his clients that in future they should purport to dismiss under item (a) of section 8 by merely handing over "wages" within the meaning of the Employment Ordinance, under section 5 thereof.

4. Whether he would succeed or not in those circumstances is not a matter for me to decide, because, in my view, there is no substance in his submission.

5. In my judgment, the reference to the common law in sections 8 and 9 was a convenient method by which the draftsman could bring the common law grounds for termination of employment within the Ordinance without having to spell them out. In those circumstances one wonders why it was necessary to set out items (i), (ii) and (iii) in section 8, and (a) and (b) in section 9. To the best of my knowledge those are equally grounds for termination at common law.

6. However, in my judgment, a purported termination at common law does not thereby take the contract of employment out of the provisions of the Employment Ordinance.

7. Accordingly, I see no reason to alter my judgment herein.

8. It is indeed unfortunate that the Employment Ordinance does not deal with the hotel and restaurant trade, especially in view of the large number of workers employed therein. It would appear that a waiter is a manual worker, but is a chef a manual worker? It is apparently the practice to pay low "wages" in this industry. If I am wrong in my judgment, workers in this industry are afforded little protection by the Employment Ordinance.

 

 

 

DCCJ001400/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1400 OF 1969

-----------------

BETWEEN
	WONG CHUI	Plaintiff
	AND
	GLOUCESTER RESTAURANT	Defendant

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Coram: W.S. Collier, D.J.

Date of Judgment: 28 June 1969

 

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JUDGMENT

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1. The defendant company, which operates a restaurant, admitted during the course of the trial, that the plaintiff had been wrongfully dismissed, and that he was accordingly entitled to wages, equivalent to one month's wages, in lieu of notice. The defendant agreed that this would include wages and commission because both came within the definition "wages" in the Employment Ordinance, Cap.57.

2. Now the plaintiff was "employed", in the most vague sense of that word, for the extremely low wage of $35 per month. In common with other employees, he received a share of 5% of the gross takings of the restaurant, amounting, on average, to $153 per month, making a total of $188.

3. However, the plaintiff's solicitor contended that the greater part of the plaintiff's income came from "tips" given by customers, his share of which brought his total income per month, on average, to $600. I was asked to decide that the "tips" were "wages" under the Employment Ordinance.

4. During argument, I expressed the view that it appeared as through part of the plaintiff's contract of service with the defendant was within the Ordinance and part of it fell to be determined by the common law.

5. The plaintiff's solicitor, while not abandoning his original submission, also adopted that view.

6. The defendant's solicitor contended that the Employment Ordinance was a codifying Ordinance and that once any part of the terms of service of an employee fell within the provisions of that Ordinance, the common law was ousted.

7. It was agreed that if the common law did apply, the "tips" would be recoverable as damages for wrongful dismissal and for dismissal without notice. (Manubens v. Leon⁽¹⁾)

8. I am satisfied that the "tips" do not fall within the definition "wages" in the Employment Ordinance. That definition reads as follows :-

' "Wages" means all remuneration, earnings or allowances, however designated or calculated, capable of being expressed in terms of money, payable to an employee in respect of work done or to be done under his contract of employment, but does not include -

	(a)	the value of any accommodation, education, food, fuel, light, medical care or water provided by the employer;
	(b)	any contribution paid by the employer on his own account to any pension fund or provident fund;
	(c)	any travelling allowance or the value of any travelling concession;
	(d)	any sum payable to the employee to defray special expenses incurred by him by the nature of his employment;
	(e)	any gratuity payable on completion or termination of a contract of employment; or
	(f)	any annual bonus, or any proportion thereof, which is of a gratuitous nature or which is payable only at the discretion of the employer.'.

The "tips" with which I am concerned are gratuities given by customers of the restaurant for service received and, although they may be in the notional custody of the defendant until they are shared out each day, they do not emanate from the defendant.

9. It seems to me that that is not the end of the matter. The defendant clearly cannot operate a restaurant without, inter alios, waiters (one of which was the plaintiff). In this case, in my judgment, there was a contract between the plaintiff and the defendant for the plaintiff to work as a waiter for the defendant and that the defendant was liable to pay him only a nominal wage and a share of commission which was low, a "wage" which was not a living wage. It was in contemplation by both parties that the significant part of the plaintiff's income would be in the form of gratuities for satisfactory service. Thus, in return for working for the defendant the plaintiff had a right to a share of gratuities. There was, accordingly ample consideration to support that agreement.

10. The plaintiff's claim was drafted by himself before he instructed a solicitor. In that claim he claims for "damages" for being dismissed without notice. That, in my judgment is sufficiently wide to allow him to recover wages in lieu of notice under the Employment Ordinance and damages at common law for dismissal without notice.

11. I am satisfied that the Employment Ordinance is not, and nor was it intended to be, a codifying enactment. Further, it clearly did not have in contemplation a state of affairs such as that in the present case where "wages" are so low as not to afford the wherewithal to support a worker with or without family commitments.

12. The final point that arises is: "what is the necessary notice to determine the contract as concerning work done, entitling the plaintiff to a share of "tips"? There was no dispute that wages were payable monthly. In my judgment, although the contract of service was partly within and partly without the provisions of the Employment Ordinance, this was one contract and was determinable in its entirety by one month's notice on either side.

13. It follows, therefore, that the plaintiff is entitled to judgment in a further sum being the monthly average of "tips" received.

 

 

	(sd.) W.S. Collier
	District Judge
	28/6/1969.

 

Representation:

H.M. So (H.M. So & Co.) for plaintiff.

K.K. Chu (Lau, Chan & Ko) for defendant.

 

(1) (1919) 1 K.B.