Kwong Hoi Kin And Others v Kam Shing Metal Manufactory

Court:District Court (Hong Kong)
Judgement Number:DCCJ597/1970
Judgment Date:29 Apr 1970
DCCJ000597/1970 KWONG HOI KIN AND OTHERS v. KAM SHING METAL MANUFACTORY

DCCJ000597/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 597 OF 1970

BETWEEN
Kwong Hoi Kin, Kwan Yan Nam and Yee Lai Ngan Plaintiffs
AND
Kam Shing Metal Manufactory Defendant

Coram: D. Cons D.J.

Date of Judgment: 29 April 1970

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JUDGMENT

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1. The two remaining plaintiffs had been employed by the defendant firm for some four months before the occurrence of the incidents which give rise to the present action. Their original engagements had been very informal, with no discussion of terms except as to the daily rate of pay, which in practice they received at half monthly periods, although it was calculated down to the actual number of hours worked. It was open to the plaintiffs to report for work or not as they wished, while on the other hand the defendant firm could ask them "to rest" if work was in short supply. Prior to the passing of the present Employment Ordinance (Chapter 57) in 1968 this action would have been completely misconceived, for until then a casual worker had no right to the provision of work further than that which was actually given to him and the question of a period of notice is not appropriate to such a form of employment.

2. Section (4) (1) of the Ordinance, however, provides:-

"Every contract of employment, which is a continuous contract, shall, in the absence of any express agreement to the contrary, be deemed to be a contract for one month renewable from month to month."

The meaning of "continuous contract" is tied to that of "continuous employment" and is eventually to be found in the Schedule, paragraph 2 of which provides:

"Subject to the following provisions, where at any time an employee has been employed under a contract of employment during the period of four or more weeks next preceding such time he shall be deemed to have been in continuous employment during that period."

Although the paragraph refers to "any time", so far as litigation is concerned no particular time is material until some incident occurs which is said to be a breach of the contract of employment, in the present case, the refusal of the defendant firm to supply the plaintiffs with work as from the 27th and 17th January, respectively. Then the Court must looked backwards from the last...

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