Injury happened four days after worker’s start date
A District Court in Hong Kong recently dealt with a dispute over calculating an injured worker's earnings for compensation purposes.
The case raised important questions about how to fairly determine compensation when an employee has only worked for a short period before an accident occurs.
The worker argued that their brief employment history made it impossible to accurately calculate their earnings, and sought to compel their employer to provide additional financial information.
The dispute centred on the interpretation of Hong Kong's Employees' Compensation Ordinance, with both sides presenting differing views on how the law should be applied.
The case stemmed from a workplace accident that occurred on 15th March 2021. The employer, a construction company, claimed the worker had only been employed for four days before the accident, earning HK$1,200 per day.
This short employment period became a key point of contention in determining how to calculate the worker's compensation.
The legal proceedings began when the worker filed a claim for employees' compensation following the accident. In August 2023, the employer provided a list of the worker's earnings, stating they had worked for just four days - 10th, 11th, 12th, and 13th March 2021.
Following a court order in August 2023, the employer filed a fresh list of earnings in October 2023. This new document stated: "[The worker] started employment with [the employer] on 10th March 2021 and his earnings at the time of the alleged incident on 15th March 2021 was HK$1,200.00 per day."
In September 2024, the worker took legal action to compel the employer to file another list of earnings. The worker argued that due to the short employment period, it was impractical to compute their rate of remuneration based solely on those four days.
The worker cited Section 11(2) of the Employees' Compensation Ordinance, which states:
"Where by reason of the shortness of the time during which an employee has been in the employment of his employer or of the casual nature of the employment, or of the terms of employment, it is impracticable to compute the rate of remuneration of such employee at the date of the accident, regard may be had to the average monthly amount which, during the 12 months previous to the accident, was being earned by a person of similar earning capacity in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person of similar earning capacity in the same grade employed in the same class of employment and in the same district."
Based on this, the worker argued that the employer should provide the average monthly income of similar employees over the past year to ensure fair compensation. The worker said this approach would give a more accurate picture of their potential earnings had the accident not occurred.
The employer opposed the worker's request, arguing that they had already complied with their legal obligations by providing the actual earnings of the worker for the days worked. They said that the law did not require them to provide earnings information for other employees.
The court focused on a different part of the law - Section 11(8) of the Employees' Compensation Ordinance. This section reads:
"Within 14 days after the date of issue of a written request of the employee or of the Commissioner to the employer liable to pay compensation, that employer shall furnish in writing a list of the earnings which have been earned by that employee upon which the amount of the monthly earnings may be calculated for the purpose of this section."
The judge said that this section only requires the employer to provide earnings information for the specific employee making the claim, not for other similarly situated workers. The court explained:
"The phrase '[that employee]' or '該僱員' clearly refers to the employee who suffers injury in the accident and who has a claim against the employer. I cannot see how it can be said that section 11(8) empowers the court to compel [the employer] to provide a list of earnings in respect of other employees who are in a similar position as [the injured worker]."
The judge also noted:
"I do not lose sight that the courts have reminded practitioners acting for [workers] who are employed on a short-term basis that they should be aware of the evidence required under section 11(2)."
The court said that while the law doesn't require employers to provide comparative earnings data, workers and their representatives should be prepared to gather such evidence when necessary.
The court ultimately rejected the worker's request. The judge said:
"I dismiss [the worker's] summons filed on 19th September 2024."
The court further explained:
"Not an iota of the words in section 11 supports this construction. Despite my invitation under the directions dated 25th September 2024, [the worker's] legal representatives have been unable to cite any authority that supports [the worker's] argument."
However, the judge offered some practical advice for future cases:
"Whilst it is open to [the injured workers] to rely on the data published by the Government, they may also utilize other procedural mechanisms to seek relevant information and/or documents from [the employers]."
This decision highlights the importance of clear record-keeping, even for short-term employees. Employers should ensure they maintain accurate and detailed records of all workers' earnings, regardless of the duration of employment.
