Wong Chui v Gloucester Restaurant

CourtDistrict Court (Hong Kong)
Judgment Date28 Jun 1969
Judgement NumberDCCJ1400/1969
SubjectCivil Action
DCCJ001400/1969 WONG CHUI v. GLOUCESTER RESTAURANT

DCCJ001400/1969

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, 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
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