车辆租赁申请者须知事项.doc

- 28 -ABCDEFGHIJKLMNOPQRSTUVABCDEFGHIJKLMNOPQRSTUVDCEC314/2007IN THE DISTRICT COURT OF THEHONG KONG SPECIAL ADMINISTRATIVE REGIONEMPLOYEES COMPENSATION CASE NO. 314 OF 2007-BETWEENWONG WAI MING KEN ApplicantandFTE LOGISTICS INTERNATIONAL LIMITED Respondent-Coram:H H Judge Marlene Ng in Court Date of Hearing:25th August 2008Date of Handing Down Judgment:27th August 2008-JUDGMENT-I.Introduction1. The Respondent carried on business of express delivery service (“Business”). The Applicant claimed that on 18th May 2005 he was employed by the Respondent as an express delivery worker. At the material time, he was also the registered owner of a motorcycle bearing registration number LT1784 (“Motorcycle”).2. The Applicant claimed that in the morning of 18th May 2005 he drove the Motorcycle to work at the Respondents station office at Chun Tin Street, Hung Hom (“Hung Hom Station”). The Respondent assigned him to deliver documents from the Hung Hom Station to a customer in Yuk Yat Street, Tokwawan (“Destination”). At about 11:45am, the Applicant was riding the Motorcycle along the 1st lane of the eastbound carriageway of Bailey Street. He turned left into the 2nd lane of the northbound carriageway of Sung On Street towards Tokwawan. At that time a private vehicle bearing registration number LS3830 (“Car”) was travelling along the 1st lane of the opposite carriageway. Upon nearing Bailey Street, the Car made a U-turn into the opposite carriageway (ie the Applicants path) without ensuring clearance of its offside, and stopped in front of the Motorcycle. The Applicant immediately applied brake, but it was too late and a collision occurred between the Motorcycle and the Car (“Accident”). The Applicant fell to the ground and sustained injuries. He was taken to the accident and emergency department (“AED”) of Queen Elizabeth Hospital (“QEH”) for treatment.3. The Applicant claimed employees compensation for personal injuries that arose out of and in the course of his employment with the Respondent as a result of the Accident. 4. The Applicant also appealed against the assessment of 3% loss of earning capacity permanently caused by his injury (ie “right knee injury resulting in pain, stiffness and weakness”) in the Certificate of Review of Assessment dated 19th September 2007 (“Form 9”). I was informed by Mr Gidwani, counsel for the Applicant, at the trial that the Applicant would no longer pursue such appeal. Since no formal application was made to withdraw the Notice of Appeal filed on 31st January 2008, the same fell to be dismissed and I do so now.5. The Respondent did not dispute that the Applicant suffered personal injuries as a result of the Accident, but claimed the Applicant was its independent contractor and not its employee. It was said that on or about 16th January and 21st February 2005 both parties entered into 車輛租賃申請者須知事項 and 車輛租賃合約 respectively, which agreement was terminated on 18th May 2005. The Respondent claimed that pursuant to車輛租賃申請者須知事項 and 車輛租賃合約, (a) the Respondent rented the Motorcycle at a monthly rental payment (ie not monthly earnings) of HK$10,000.00, (b) the Applicant was an independent contractor or self-employed person, and not an employee of the Respondent, (c) the Employment Ordinance Cap.57 did not apply to the agreement between the parties, and (d) each party could give the other party 3 working days notice or 3 days rent in lieu of notice to terminate the agreement. In contra-distinction to the Applicant, the Respondent would enter into 僱傭合約 (“Employment Contract”) with its employees. 6. The Respondent was previously legally represented, but acted in person since 15th May 2008. The Respondent was absent at trial. According to the affirmation of service filed on 21st August 2008, my order dated 20th May 2008 which set the case down for trial to be heard before me on 25th August 2008 was served on the Respondent in June 2008. There was no reason not to proceed with the trial.II.Issues7. There can be no dispute that the Accident happened as described in paragraph 2 above. Police records revealed that on 29th November 2005 the driver of the Car (“Car Driver”) was convicted of careless driving in relation to the Accident after trial (“Magistracy Trial”), and fined HK$1,200.00. The Applicant gave evidence at the Magistracy Trial, and his evidence as to how the Accident occurred was accepted by the learned magistrate.8. I also accept that at the time of the Accident the Applicant was in the course of delivering documents from the Hung Hom Station to the Destination (see the Applicants statement to the police dated 3rd June 2005). When the Applicant gave evidence at the Magistracy Trial, he also confirmed he commenced his motorcycle trip from the Respondents office.9. I also make the following findings of fact which did not appear to be disputed :(a) At the time of the Accident, the Applicant was 26 years old.(b) The Applicant received education up to secondary school level, and could read, write and understand Chinese and punti language.(c) The Applicant obtained his driving licence in 1997, and at the time of the Accident he had 5 years experience of riding motorcycles.10. The main issue on liability in this case is whether the Applicant was an employee or independent contractor of the Respondent at the time of the Accident. The Applicant gave evidence on this issue and adopted his witness statement as part of his evidence-in-chief.III.Legal principles11. In Poon Chau Nam v Yim Siu Cheung (t/a Yat Cheung Airconditioning & Electric Co) 2007 2 HKC 135, 144-145, the Court of Final Appeal held that the modern approach to the question of whether one person was anothers employee was to examine all the features of their relationship against the background of the indicia developed in the case law with a view to deciding whether, as a matter of overall impression, the relationship was one of employment, bearing in mind the purpose for which the question was asked. It involved a nuanced and not a mechanical approach (see Hall v Lorimer 1992 1 WLR 939, 944).12. Ribeiro PJ cited Ready Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance 1968 2 QB 497, 515 where MacKennaJ identified 3 conditions for the existence of a contract of employment as follows: “(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the others control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.”13. But Poon Chau Nam at pp.143-144 said the courts had increasingly turned to the economic or commercial aspects of the relationship as more suitable guides. A reservation of right to direct or superintend the performance of the task could not transfer a contract of service what in essence was an independent contract.14. Ribiero PJ next cited the well-known test by Cooke J in Market Investigations Limited v Minister of Social Security 1969 2 QB 173 :“The fundamental test to be applied is this : Is the person who has engaged himself to perform these services performing them as a person in business on his own account? If the answer to that question is yes, then the contract is a contract for services. If the answer is no then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of the considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”15. Ultimately, the question whether a person was an employee or independent contractor was a question of fact to be determined by the trial court (see Chitty on Contracts 29th ed, Vol.2, paras.39-010 - 39-028 at pp.943-955 which set out some helpful considerations).IV.Liability(a)Evidence16. According to the Respondents 人員需求申請書dated 20th December 2004, internal approval was given for putting up an advertisement to recruit 2 “外包電單車” for the Hung Hom Station to “擴大編制” and “辭職補充”. As to the requirements for the persons to be recruited, it was stated inter alia that “員工薪金” would be “10000/month”.17. On 14th January 2005, the Applicant filled in and signed 職位申請表 for the position of “司機(包車)” and attended an interview for the post of “包車電單車”. The Applicant claimed the position was for an express delivery worker whose job was to deliver documents as assigned by the Respondent, and one of the conditions of his employment was that he must have a motorcycle for work purpose. The職位申請表 also specified the Applicants “薪金” would be HK$10,000.00 and he would be immediately available.18. From the work history as stated in 職位申請表, the Applicant worked as driver for 順風速遞and 振雄貨運 in 2000-2003 and 2003-2005 respectively. The Applicant claimed he was an employee of these 2 companies, but he did not need to use the Motorcycle for work purpose whilst so employed. 19. The Respondents internal record titled任用通知單 showed that approval was granted in respect of the Applicants aforesaid application with inter alia the following particulars :(a) “項事通知” : “R初任核薪” and “以上生效日 : 05年1月15日”;(b) “原任” : “單位 : Hung Hom Station”, “稱職: 電單車包車” and “總薪 : $10,000”.20. On 16th January 2005, both the Applicant and the Respondent entered into and signed 車輛租賃申請者須知事項as follows :“承租單位:Hung Hom Station。工作時間:MON.-FRI. 8:00 19:00 SAT. 8:00 16:00。工作休息日:A。假期日:法定假期 (勞工假)。超時工作:無加班費。租賃車輛類型:電單車。工卡:按規定每日上班及下班均須打卡，若員工忘記打卡，請找承租單位主管簽名作實，每月只可簽卡三次，倘若上班或下班沒有打卡及沒有承租單位主管簽署將作曠工論。租賃條款 :1. 承租公司願意以下列條件支付租賃費用給予租賃公司 / 自僱人士上車輛 :a.本公司每日 / 每月租賃車輛費用為 10000月。b.每月租賃費用是不包括承租方派送所支付的隧道費及停車場費，其餘費用一律由租賃公司 /自僱人士自付。c.本公司只屬於租賃貴公司 / 自僱人士車輛之性質，租賃工作期間內若車輛發生機械故障及一切意外或自然損毀，一概與本司無關。d.交通罰款 : 本公司只負責每月第一次違例泊車的告票，同月第二次及以後的違例泊車告票將按租賃車輛負擔罰款的30%，承租公司支付其餘的70%，其他違例罰款由租賃車輛自付。2. 租賃公司 / 自僱人士必須符合下列條件並提供良好之服務予承租公司 :a.承租公司要求租賃車輛在租賃期間貼上承租公司的圖樣及名字以利識別，一切製造費用由承租公司支付。b.租賃車輛工作時間由上午08:00開始至收派及承租公司理貨作業完成為止。c.出席率將依據租賃車司機在承租公司的打卡記錄為準，如有缺席，租賃費用將依據工作缺席日數按比例扣除。例一 : 例二 : d.如交收之貨件有遺失、短缺或派送錯誤，承租公司將以每日 / 月租賃費用扣除合理的款項作為賠償，(最高為承租公司賠償客戶之款項)。 e.在工作期間內租賃車司機必需配合承租公司的調度要求，如未能給予配合，將立刻終止租賃車輛合約。f.租賃車司機有責任協助收派、點貨及上下貨作業，以提高收派件效率，若未能給予配合，將立刻終止租賃車輛合約。g.租賃車司機有責任配合承租公司的要求，須穿著整潔正規的公司制服(需扣上鈕扣、嚴禁改裝制服)，需穿不露腳趾 / 腳跟的鞋及長褲 (嚴禁穿拖鞋、涼鞋及短褲)及不准染髮與紋身、(頭髮前面不得蓋著眼睛、後面頭髮不可過肩或用橡筋束起)及嚴禁穿戴耳環，如發現屢次違反者，可以立刻終止租賃車輛戶合約。3. 租賃服務 / 自僱人士須知 :a.根據勞工法例租賃服務 / 自僱人士並不受(僱傭條例)保障。b.閣下並非承租公司員工，若雙方任何一方終止租賃服務，雙方只需給予對方3天工作通知期 / 補回相等於租賃3天金額作為補償代通知金。c.若租賃公司 / 自僱人士違反2e. / 2f. / 2g.的服務條件，承租公司將立刻終止租賃車輛合約而不作3b所列之補償。d.每逢農曆新年長假期的月份，承租公司將按當月租賃車輛所工作日數給予租賃費用。例 : 承租公司及租賃公司 / 自僱人士雙方均清楚明白以上的各項內容，並同意在以下簽名作實。租賃車司機簽署:Applicants signature承租公司負責人簽署 signature日期 :16/1日期16.01.05公司印鑑 :blank承租公司印鑑 :stamp21. On 21st February 2005, both the Applicant and the Respondent entered into and signed 車輛租賃合約as follows :“Respondent(簡租承租公司)現與租賃公司 / 自僱人士訂立本租賃合約 :租賃公司/自僱人士:Applicant租賃車司機姓名 :Applicant商業登記號碼 :blank租賃車司機身份證號碼:identity card number租賃車牌號碼 :LT1783租賃車司機聯絡電話:number (住宅)number (手機)租賃車輛類型:電單車租賃條款 :承租公司 / 租賃公司 / 自僱人士雙方均清楚明白以上的各項租賃條款及服務內容，並同意在以下簽名作實。租賃車司機簽署:Applicants signature承租公司負責人簽署:chop日期 :21-2-05日期:2005年2月18日公司印鑑 :blank承租公司印鑑 :stamp此合約為一式兩份，僱主及租賃公司 / 自僱人士雙方均保存一份以作日後參考”“租賃條款” in 車輛租賃合約 are the same as those found in 車輛租賃申請者須知事項 except that clause 2(g) provided that “租賃車司機有責任穿著整齊制服及端莊儀表並配合承租公司的要求，如發現屢次違反者，可立刻終止租賃車輛合約”.22. The Applicant admitted he signed and understood the contents of車輛租賃申請者須知事項 and 車輛租賃合約. He realised that such documents described him as 租賃公司 / 自僱人士 and the Respondent as 承租公司. Although he regarded himself as an employee of the Respondent, he still signed such documents because at the material time he had not read the documents carefully and he had to take up the job to earn his living.23. The Applicant claimed that in the course of his work, he had to clock his time card each work day, and leave days (事假 or 請假) as well as rest days (休息) were marked on the same. When he received his monthly remuneration from the Respondent, he signed receipt for the same. The receipts dated 4th February and 7th June 2005 for his remuneration for January and May 2005 respectively described the sums were for “一月份包車費” and “5月包車” whilst the receipts for February, March and April 2005 were silent on the purpose of the payments. The Respondent also disclosed various internal schedules which set out “包車租金” from January to May 2005 listing all the Respondents “包車” and gave particulars of inter alia vehicle registration numbers, names of the workers, “支薪單位” (eg Hung Hom Station), “職位” (ie different types of “包車”), monthly rental, other deductions and amount of rental payments.24. The Applicant claimed the Respondent determined his working hours and work procedures, and assigned the delivery jobs to him and other workers. The Applicant had to abide by and carry out the Respondents instructions. The working hours specified by the Respondent were from 8am to 7pm, and normally the workday ended when he finished all the delivery jobs assigned to him. If he wished to take leave, he had to apply to the Respondent for permission. The Applicant did not earn any profits or bear any loss of the Business, ie he did not carry any business risk. 25. Immediately after the Accident, the Applicant telephoned to inform the Respondent he was injured. The Respondent sent a colleague to pick up the document which the Applicant was to deliver to the Destination from the Motorcycle, and such colleague completed the delivery. 26. After receiving treatment and ascertaining his condition, the Applicant telephoned to inform the Respondent that he would not be able to return to work for a while. He was told to take some rest. 27. The Respondents internal record titled任用通知單 showed that application was made on 18th May 2005 for termination of 車輛租賃合約with the following particulars :(a) “停薪通知” : “R該員已奉准離職” and “截止計薪日 : 05年5月18日”;(b) “新任” : “單位 : Hung Hom Station”, “稱職 : 外包電單車” and “總薪 : $10,000/月”.28. The Applicant gave evidence (which I accept) that he never resigned from his position as the Respondents express delivery worker. He explained that about 2 months after the Accident the Respondent enquired whether he could return to work. When he told the Respondent he was unable to do so due to his injuries, he was informed “唔使返嚟”. The timing of such conversation was roughly consistent with the date of the Respondents internal record 終止租賃車輛服務, namely, 6th July 2005 (ie about 1 months after the Accident). Such document stated that the reason for termination of the Applicants “電單車包車” was “受傷、離職” and that “最後工作日5月18日，6月30日站主管才通知此包車已離職，此文件不用寄台灣，只作行政室保存”. Since the Respondent told the Applicant he need not return to work, the Applicant did not submit his sick leave certificates to the Respondent.29. The Respondent did not submit any Form 2 to the Labour Department. So on 9th June 2006, the Applicant submitted 工傷意外通知書 to the Labour Department stating that the Respondent was his employer and that he suffered injury on duty as a result of the Accident.30. On 12th June 2006, the Labour Department wrote to the Respondent requesting for their response to the Applicants allegation. On 19th June 2006, the Respondent sent its written reply to the Labour Department referring to車輛租賃申請者須知事項 and 車輛租賃合約, and denying that the Applicant was its employee. The Respondent also stated that the Applicant did not submit any sick leave certificate or ask the Respondent to report any work injury since he knew he was a self-employed person. The Respondent claimed the Applicant ceased to provide services for the Respondent on 19th May 2005 as he was unable to deliver such services, and the Applicant told the then supervisor in charge of the Hung Hom Station that he would terminate 車輛租賃合約.(b)Analysis31. There is no dispute that (a) the Applicant understood and signed車輛租賃申請者須知事項 and 車輛租賃合約 and (b) provided his Motorcycle as equipment for performance of his work as express delivery worker pursuant to his agreement with the Respondent.32. It also cannot be disputed that :(a) various parts of 車輛租賃申請者須知事項 and 車輛租賃合約 described the Applicant as “租賃公司/自僱人士” and “租賃車司機”, the Respondent as “承租公司” and “承租方”, the Motorcycle as “租賃車” and “租賃車輛”and the payments to the Applicant as “租賃費用”;(b) the provisions in clauses 1(c), 3(a) and 3(b) of車輛租賃申請者須知事項 and 車輛租賃合約 stated that the Applicant was not an employee of the Respondent, but an independent contractor and/or self-employed person who did not come within the protection of the Employment Ordinance Cap.57;(c) certain payment receipts signed by the Applicant referred to “包車” and “包車費” (see paragraph