The courts had to determine as a preliminary issue whether he was working as an employee under a contract of service. The applicant was a stone mason who was working for a subcontractor on a construction site in Hong Kong. He used tools supplied by the subcontractor and his work was inspected periodically, but not supervised, by the main contractor s foreman. Depending on the nature of the work he had to do he was paid either a piece-work rate based on the amount of concrete chiselled or, occasionally, a daily rate based on an 8am to 5pm day. He sometimes worked for other contractors but gave priority to urgent work of the subcontractor.
Employee is defined in the Ordinance and includes a person who works under a contract of service .
The definition also includes casual workers and also employees who have entered into concurrent contracts of service with two or more employers. On his application, the judge dismissed the claim holding he was not an employee. The Court of Appeal upheld that decision. There are two points worth commenting on in this case. Firstly, the statement by Lord Griffiths on p.382 of his judgment regarding the English common law standards to apply in order to determine whether someone is an employee or an independent contractor.