In the recent judgment of Lee Wai Kei Wicky v. World Family Ltd. [2017] HKEC 2109, the Plaintiff who was an education consultant of the Defendant company, argued that he was an “employee” instead of an “independent contractor”.

The Court of First Instance rejected the Plaintiff’s appeal on the decision from the Labour Tribunal. The Court held that, due to the fact that (1) the Plaintiff enjoyed high degree of flexibility on his working hours, methods of promotion and sales target; (2) the Plaintiff needed to share advertising costs; (3) the Plaintiff needed to shoulder the expense of secretary salary, gifts for clients and uniforms etc., and (4) the Plaintiff’s commission payment was heavily related to his performance, the arrangement between the parties was an independent contractor one.

It can be seen as a rare case that the court finds an employment arrangement to be an independent contractor one, but it also shows that the court is ready to take into account the overall picture and circumstances when deciding a case. Employers are advised to review the whole employment arrangement with care in order to fit the designated label.