Originally published December 10, 2010

Keywords: employment contract, applicant, respondent, contractors, employees' compensation, contract of employment

EC insurers are invariably faced with claims where contractors claim to be employees so as to be entitled to employees' compensation. In a recent case under Action No.1277 of 2008 in which our firm acted for the Respondent, the Court found no employment relationship between the Applicant and Respondent. Hence, the Applicant's application for employees' compensation was dismissed with costs.

In this case, the Respondent (the Insured) hired a contractor to renovate his home. The Applicant contended that the contractor had absconded with the money paid for renovation. The Respondent therefore hired him to complete the unfinished works during which he allegedly fell from a ladder and sustained injuries. He therefore demanded employees' compensation from the Respondent. It was essentially a dispute on evidence.

In finding that a contract of employment did not exist and preferring the evidence of the Respondent, the Court took into account the following factors:

  1. The Form 2 completed by the Applicant stating that the "employer" was the main contractor rather than the Respondent.
  2. The police report filed by the Respondent indicating that the Applicant was not employed by him.
  3. The inconsistency between the Applicant's alleged earnings given during trial vis-à-vis the earnings stated in the pleadings.
  4. The failure to subpoena the appropriate witnesses by the Applicant's solicitors.

The above demonstrates that the Court will take into account contemporaneous evidence, inconsistencies in the Applicant's evidence and the absence of appropriate witnesses in determining the credibility of a party's evidence.

In this case, we were successful in dismissing the Applicant's claim for employees' compensation with costs.

Learn more about our Hong Kong office, Insurance & Reinsurance and Employment practices.

Visit us at www.mayerbrownjsm.com

Copyright 2010. JSM, Mayer Brown International LLP and/or Mayer Brown LLP. All rights reserved. Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: JSM, a Hong Kong partnership, and its associated entities in Asia; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and Mayer Brown LLP, a limited liability partnership established in the United States. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.