Evelyn Semana Bachicha v. Poon Shiu Man Henry

DCCJ1546/99

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1546 OF 1999

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JUDGMENT

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1. This is a claim transferred from the Labour Tribunal. In this claim the Plaintiff a Filipino domestic helper claims the following against her former employer:-

1. Damages to be assessed on constructive dismissal.

2. Wages from 27th August to 8th September 1998.

3. An amount equal to the cost of passage from Hong Kong to her place of origin, including Airport Departure Tax, the cost of an unrestricted air ticket from Hong Kong to Manila, and the cost of conveyance from Manila to the place of origin, and her travel allowance.

4. Reimbursement of expenses under clause 8 of the contract of employment.

5. Reimbursement of the cost of passage from place of origin to Hong Kong, including the cost of conveyance from place of origin to Manila airport, the cost of the air ticket from Manila to Hong Kong, and her travel allowance.

6. The costs of these proceedings.

7. Interest pursuant to section 49 of the District Court Ordinance.

8. Further and other relief.

The Plaintiff's Evidence

2. The Plaintiff, a national of the Philippines entered into a contract of employment for domestic workers through Yarra International Recruitment Agency, an employment agency in the Philippines. The employment contract dated 30 September 1997 was produced marked Exh P3. The Plaintiff arrived in Hong Kong on the 20th February 1998. According to the contract, the monthly wages of the Plaintiff was HK$3,860.00 per month. The address where the Helper shall work and reside was stated in Clause 3 of the contract to be at G/F, 3B Lok Lo Ha Village, Fo Tan, New Territories.

3. The Plaintiff stated that she paid the sum of 35,000 pesos to her employment agency in the Philippines. This sum included payment for her air ticket from Manila to Hong Kong, for POEA and for processing fees. It did not include fees for medical examination which she had to pay for.

4. She stated that upon her arrival she had to pay the Hong Kong employment agency, namely Loyal Servant Agency one month's salary as their fee.

5. She stated that her employer and his wife had 2 children, one boy aged 9 and one girl aged 8. They also had two dogs as well as 20 boxes of pet mice. The animals were kept on the balcony.

6. Her female employer was always bad-tempered with her. Even for a small matter she would get angry with her, push her, shout at her and pull her hair. The two kids were always kicking her and punching her.

7. She had a lot of work each day. She woke up at 6 a.m. in the morning. Her work included taking the 2 dogs for walks 3 times a day; washing and cleaning 20 boxes wherein the pet mice were kept including putting in the feed and fresh water. Cleaning the balcony and things therein, taking the daughter to school from Fo Tan to Yau Ma Tei; washing clothes, ironing, cooking breakfast, lunch and dinner, general cleaning of the house; tidying up; helping the children to bathe; help the children with their home work; washing the dishes and pots and pans after meals. She had to cook for the two dogs in the evening and feed them before taking them out for a walk. She often found that she would not finish work until late into the evening because of the volume of work.

8. On her rest days, she was required to work from 6 a.m. until 10:30a.m. before she could go out. When she returned at 8:30 p.m. she had to work until mid-night. This is in breach of Clause 6 of the Employment Contract.

9. She stated that she was required to clean three other premises from time to time. The addresses were:-

1. Flat C, 10th Floor, Hope Yick Centre in Hop Yick Road, Yuen Long, N.T.

2. Flat E, 3rd Floor, Block E, On Ning Building, Shatin Centre, N. T.

3. Flat B4, 23rd Floor, in a flat in Pok Fu Lam near St. Paul's College.

In respect of above three premises she had to clean the floor, all the windows, cabinets, walls, kitchen and bathroom.

10. She was feeling very tired all the time. Of course, she was unhappy. She denied the allegation of the Defendant that she was slow in her work. She stated that there was just too much work to do.

11. In relation to the allegation of the Defendant that she had a poor sense of security on the basis that when she went out to clean the balcony of the 1st floor flat, she did not close the door, she said that there were 3 doors, one a screen door, one an iron door and lastly a glass door. As she was going in and out of the balcony when she was doing her work out there, it would take too much time if she had to close all three doors when she went in and out. She said that she locked the door after she finished the work.

12. As regards the incident when the Defendant's wife alleged that she was negligent in not preventing the daughter from crossing the road on her own, she said that the daughter saw her mother waiting on the opposite side of the street. They were on a bus which was too crowded. The daughter got off the bus before she could get off and the daughter rushed across the road before she could stop her. The Defendant's wife told her to write the letter dated 20th April at about 2 a.m. one night and forced her to sign. She was too tired to resist.

13. On the 2nd Sept. 1998, at about 11:30 p.m. the Defendant's wife gave her a letter to read. The letter is marked Exh D2 giving her 1 month's notice of termination. This letter is dated 1st Sept. 1998. On that day, a Wednesday was her day off. She did not take the day off because she was sent to clean the house at Shatin on that day. At about 11:30 p.m. that evening the Defendant's wife, DW1, handed that notice to the Plaintiff. DW1 said to her that as it was late, the Plaintiff did not have to sign it. On the following day, DW1 did not ask her to sign it.

14. On the 6th Sept. 1998, DW1 asked the Plaintiff to sign it. She insisted that the Plaintiff signed it then. The Plaintiff refused. DW1 lost control because she was very angry with her. She pushed the Plaintiff and the Plaintiff fell and she hit against the metal arm of the sofa and her right rib got hurt. When the Plaintiff got up, DW1 pulled her hair many times and spat on her face. Then the Plaintiff told DW1 that she wanted to telephone the agency to ask if she signed the one month's notice or not. She did not tell the agency that DW1 had hurt her as DW1 was standing next to her. The agency told the Plaintiff to sign it. The Plaintiff signed it.

15. On the 8th Sept. 1998, DW1 went out in the afternoon. She telephoned home at about 5 p.m. and asked her to prepare the cleaning material to go to clean the flat in Shatin. The Plaintiff did not prepare the things because she had decided not to do that as the order was unlawful. It breached the terms of her contract as well as her visa conditions. She dialed 999. When 3 Policemen arrived, she informed the 3 Policemen that she was hurt by her employer on the 6th Sept. and that the employer had asked her to go to clean up another flat. The Police informed her that she should have reported the assault to the Police on the 6th Sept. and go for a medical check-up. As regards the order to clean another flat, she was informed to refer it to the Labour Department. She told the Policemen that she was very scared and asked whether the Policemen could help her to leave the flat. DW1 had by then returned home. The Policemen stated that they had given a warning to her female employer not to hurt her any more. The Plaintiff then went back to her employer's house.

16. After the Police left, DW1 scolded her for calling the Police and causing embarrassment to her in front of her neighbours who had observed the incident with the Police. She pushed the Plaintiff, pointing her finger on her cheeks. Then DW1 telephoned her husband the Defendant who spoke to the Plaintiff. The Defendant asked her to work to finish the one month's period of notice until 30th Sept. The Plaintiff was too scared to say no.

17. After this, DW1 was very angry at the Plaintiff. The Plaintiff was very scared and went out to dial 999 again. The Police came. They said the situation was not serious despite the fact that the Plaintiff stated she was scared as her female employer was angry. After the Police left, the Plaintiff was too scared to return to her employer's home and she left at between 6 - 6:30 p.m. to go to a shelter for domestic helpers run by the Philippines Consulate.

18. On the 9the Sept. the Plaintiff went to QEH because she felt pain at her right rib cage arising from the assault on the 6th Sept. She produced her medical report marked Exh P6. On the 11th Sept. she reported to the Yau Ma Tei Police Station that her female employer had hurt her. She gave a witness statement to the Police marked Exh P7.

19. On the 24th Sept. she went to Shatin Police Station because Police officer at Yau Ma Tei Police Station told her to make a report there as it was the nearest Police Station to her work place. She gave a statement about the incident on the 6th Sept. related to the assault and stated that she was asked to clean different houses. A copy of this English statement is marked Exh P8. She went to the Labour Department on the 20th Sept. as she was advised by the Philippines Consulate to do that.

The Defendant's Evidence

Evidence of DW1

20. The Defendant's wife, DW1, gave evidence related to the employment of the Plaintiff by her husband.

21. She stated that she instructed Loyal Employment Agency that she wished to employ a female domestic helper from the Philippines who had never worked in Hong Kong. The Plaintiff arrived on about the 26th February 1998. When the Plaintiff arrived she sent her to the Immigration Department to apply for an ID card. Some time later when she asked to look at the Plaintiff's ID card, she discovered that the Plaintiff had worked in Hong Kong before. DW1 stated that the Plaintiff informed her that her agency in the Philippines told her not to mention this fact to her employer as Hong Kong employers prefer a domestic helper who had never worked in Hong Kong before. The Plaintiff in her evidence denied that she had said this. DW1 felt that the Plaintiff had deceived her.

22. She found the Plaintiff's ability to understand her was very low. She found the Plaintiff was impolite because she did not greet her and her children "Good Morning" each morning. She felt that was the appropriate way for the Plaintiff as a domestic helper to behave. The Plaintiff stated that she did not intentionally fail to say "Good Morning" but she was usually very occupied with work and was so busy that she failed to say "Good Morning" only sometimes. DW1 also stated that she asked her daughter as to whether the Plaintiff smiled when she saw the daughter when picking her up from school and the daughter had informed her that she did not. DW1 stated that when they take the daughter to school together, when the Plaintiff got off the bus, the Plaintiff did not say goodbye to her.

23. DW1 stated that the Plaintiff was not security conscious. The Defendant's flat had full length glass windows leading to the balcony. The Plaintiff would open wide the glass window to go out to the balcony. The air conditioning of the living room would be on. The Plaintiff would not close the balcony window nor the iron gate. The Plaintiff gave her explanation for this in her evidence.

24. DW1 stated that the Plaintiff was disrespectful of DW1 and had confrontations with her daughter.

25. DW1 found that there were many problems with her work because her work was very slow. DW1 brought her to the agency to have them talk to her 4 - 5 times. The agency persuaded DW1 to continue employing her for the time being as it would take 4 - 5 months for a new domestic employer to come from the Philippines if she were to employ another. DW1 decided to instruct the agency to employ another domestic helper.

26. On the 26th August, the employment agency informed her that the new domestic helper would be arriving from the Philippines in early October as her visa was ready. On the evening of the 30th August 1998, DW1 gave the Plaintiff the letter which contained the notice of termination of employment marked Exh D2. The Plaintiff refused to sign that. DW1 telephoned the employment agency informing them that she was giving the letter with the notice of termination to the Plaintiff. The employment agency calmed her down by saying that if the Plaintiff did not sign the termination letter, DW1 could not force her to sign. The employment agency asked DW1 not to force the Plaintiff to sign the letter for if she did, something unpleasant may happen. DW1 asked the agency, what would happen if after the end of the 30 day period of notice the Plaintiff stated that she had not received the 1 month's notice and sue her for 1 month's wages in lieu of notice. As the agency could not help her, she spoke directly with the Plaintiff. On 6th Sept. in the afternoon, DW1 delivered the letter to the Plaintiff and requested her to sign. The Plaintiff requested to speak directly with the agency first. DW1 stated that the attitude of the Plaintiff towards her was poor. DW1 telephoned the employment agency and urged the employment agency to ask the Plaintiff to sign the letter. The employment agency asked the Plaintiff to sign the letter. After this the Plaintiff signed the letter. She told the Plaintiff that if the Plaintiff worked nicely, by the 30.9.98 when the Plaintiff completed her employment DW1 would give her a good release letter.

27. On the afternoon of the 8th Sept. at about 4:30 p.m., DW1 who was out telephoned the Plaintiff to enquire of the Plaintiff whether her son was doing his home work. DW1 stated that she would be back home in half an hour. At about 5 p.m., she returned home and found 3 to 4 Policemen standing outside her flat. She realized that the Plaintiff had dialed 999 to call the Police to complain that DW1 had called her to go to another flat to clean that flat. DW1 denied that she did so. She stated that the Police officers confirmed that as the Plaintiff was at the address stated in the contract there was no such thing and they ignored them and left. The Plaintiff requested the Police officers to take her away. The Police refused her and asked them to go to the Labour Department to report this matter.

28. After the Police left, DW1 made a telephone call to the employment agency telling them that the Plaintiff had called the Police. DW1 told the employment agency to ask the Plaintiff to work for her until the 30th Sept. as she needed the Plaintiff until the new domestic helper arrived. DW1 promised to give the Plaintiff a good release letter if she did so. The employment agency did so. Afterwards, DW1 blamed the Plaintiff for making a telephone call to the Police.

29. The Plaintiff took the 2 dogs out to do their excrement. 15 minutes later, the Police came to the Defendant's home again as the Plaintiff had dialed 999. This time, the Plaintiff complained that her employer had assaulted her. Then the Police officer asked DW1 if this happened. The Police told the Plaintiff to go for a medical check up and the Plaintiff refused. DW1 told her again that if the Plaintiff worked for her until the 30th Sept and caused no more trouble, all the reports to the Police would be forgotten and she would give her a good release letter. The Plaintiff however was unwilling to return to her home. DW1 could do nothing except to ask the Plaintiff for the house keys.

30. In relation to the allegation that she sent the Plaintiff to work in other houses, DW1 said that the Plaintiff agreed to do it. In relation to the flat on Hong Kong Island, this flat fell vacant and she was renting it out. Before that she together with her children and a friend went to the property with the Plaintiff. She had made an appointment with an estate agent to meet them there. When they entered they found the floor of the premises was very dirty. The Plaintiff who was responsible for looking after the children could not manage the children who were running around. DW1 would have cleaned the flat but instead she asked the Plaintiff to do that so that DW1 could take care of the children. She gave the Plaintiff some tips or gifts in return. This the Plaintiff denied that. The Plaintiff denied DW1's version of facts and stated that the flat was in fact very dirty and DW1 asked her not only to clean the floors but the walls, the ceilings, the windows, the kitchen and the cabinets and DW1 asked her to wash the curtains.

31. In relation to the flat in Shatin, the case is similar to the Pok Fu Lam property. DW1 said the Plaintiff agreed to clean the property and cleaned the floors instead of looking after the 2 children who took their home work there. The Plaintiff stated that she had to do general cleaning in the flat including the bathrooms, the kitchen, the living room etc.

32. In relation to the premises in Yuen Long, DW1 stated that it was their holiday place and they took the Plaintiff there on Sundays when they went for an outing. The Plaintiff cleaned that place instead of the flat in Fo Tan. The Plaintiff stated that upon return from the Yuen Long flat she had to work in the Fo Tan flat as well as bathe the children and take the dogs out.

Evidence of the Defendant

33. The Defendant stated that he is the husband of DW1. He signed the employment contract with the Plaintiff. Because of work, he often did not reside at home. He stated that the Plaintiff had not complained to him that she had been abused by DW1 or that she had been asked to work at other addresses. However, when he was at home he did not find much problem with the Plaintiff apart from being rather slow at work and slow in learning. The Plaintiff's version was that she was too scared of DW1 to complain to him of the abuses. The Plaintiff put to the Defendant in cross-examination that when she cleaned the flat in Shatin, on one occasion, he was there and he saw it. The Defendant did not deny that but said that he could not remember.

Credibility of witnesses

34. I found from the evidence of DW1 that she had been a very difficult employer to work for, and was bad tempered. From her account of the incident of the 6th Sept. 1998 she admitted she telephoned the employment agency complaining that the Plaintiff would not sign the termination letter. She admitted that the agency had to calm her down. Despite the advice of the agency that she should not force the Plaintiff to sign the termination letter, she did everything she could to put pressure on the Plaintiff to sign the termination letter. She showed thereby to be a very controlling woman who wanted her own way.

35. Her complaints about the Plaintiff not saying good morning to her and asking her daughter of 8 years old as to whether the Plaintiff smiled at her when collected her from school demonstrates her to be someone who was fault-finding and difficult. The complaint about the Plaintiff having little sense of security because she left the balcony door open when she was working on a 1st floor balcony in the day time appear to me again to be fault-finding. I cannot possibly see how the security of the premises could have been compromised if the Plaintiff was working in the balcony or nearby in the day time with the doors open when the flat was on the 1st floor.

36. I am of the view that the incident in June 1998 when DW1 alleged that her daughter was nearly knocked down by a car was an exaggeration of what actually happened.

37. I totally disbelieve the attempts by DW1 to explain why the Plaintiff was asked to clean the premises in Pok Fu Lam, Shatin and Yuen Long. They were very poor excuses to justify clear breaches of the terms of the employment contract. I was of the view that what DW1 said were lies.

38. From the list of the work duties stated by the Plaintiff, it seemed to me that the work load of the Plaintiff was exceptionally heavy. It would not be easy to finish the list of duties which she had to do without having to work long hours at it. I therefore am of the view that the Plaintiff was not slow at work but that the work duties were heavy.

39. I found the Plaintiff's evidence credible. I found her evidence of the events on the 2nd Sept., the 6th Sept. and the 8th Sept. to be credible. DW1 stated that the Plaintiff on the 8th Sept. asked the Policemen to take her away. It seems to me that she must have been very frightened of the reaction of DW1. That was why she enlisted the help of the Police officers to take her away.

40. If the Plaintiff were such a poor worker as DW1 made out, it would have been strange that DW1 repeatedly persuaded the Plaintiff to continue working until 30th Sept. I formed the view from all the evidence that the Plaintiff was consistently telling the truth and DW1 was untruthful.

41. The evidence of the Defendant could not add much to the Defence case.

Finding of Facts

42. In view of the aforesaid, I accept all the evidence of the Plaintiff and reject the evidence of DW1 and that of the Defendant where it conflicts with that of the Plaintiff. It would seem that the Defendant employed the Plaintiff as a domestic helper for his family and had delegated the supervision of the Plaintiff and authority as employer to his wife, DW1, who on behalf of the Defendant gave instructions to the Plaintiff for work. This is so because the Defendant stated that for reasons of work he seldom stayed home. I find that DW1 first handed the termination letter marked Exh D2 to the Plaintiff on the 2nd Sept. 1998. In doing so, she acted as the agent of the Defendant. It would seem from the facts of the case that the Defendant had delegated authority to his wife, DW1 to give the termination letter to the Plaintiff as according to the Plaintiff, on the 8th Sept. 1998, DW1 telephoned the Defendant to ask him to speak to the Plaintiff to persuade the Plaintiff to work until the 30th Sept. 1998. It would therefore seem that the Defendant well knew about the termination letter and had authorized it. The period of notice for termination should be 1 month's notice. Hence the period of notice should not expire until 2nd October 1998. On the basis of the evidence of the Plaintiff that DW1, the wife of the Defendant had caused the Plaintiff to work in addresses other than the Fo Tan address and on the 8th Sept. 1998 had again requested her to do so, the Defendant had evinced an intention not to abide by clause 3 of the contract of employment. It is clear from the evidence that the Defendant well knew of this practice of DW1 and had endorsed this. In view of the fact that DW1 consistently caused the Plaintiff to work between the hours of 6 a.m. to 10 a.m. and from 8:30 p.m. to midnight on her rest days, the Defendant had evinced an intention not to abide by clause 6 of the contract of employment and had repudiated the terms related to rest days therein. I also find that the Defendant must have known of this and had authorized this. The Plaintiff had on the 8th Sept. 1998 accepted such repudiation by leaving the premises of the Defendant.

Items of Claim

1. Damages for Constructive Dismissal

43. The Plaintiff claims damages for constructive dismissal for loss of earnings arising from constructive dismissal. In Chitty on Contract 27th Edition paragraph 37-141 at page 807 of the Vol. on Specific Contracts, it states;

"Damages for loss of earnings following wrongful dismissal. The remedy of an employee who has been wrongfully dismissed is an action for damages. The normal measure of damages is the amount the employee would have earned under the contract for the period until the employer could lawfully have terminated it, less the amount he could reasonably be expected to earn in other employment."

44. In the recent House of Lords decision of Malik and Bank of Credit and Commerce International S.A. [1997] I.C.R.606, in my view supports the application for damages for financial loss continuing beyond the normal measure of damages referred to above which flow from the conduct of the Defendant's wife endorsed by the Defendant giving rise to the constructive dismissal. The facts of the cited case are different from this case but it is the principles stated in the cited case which apply. In the cited case the applicants were employees of the Respondent bank. Provisional liquidators were appointed for the bank in July 1991. Shortly afterwards, it became widely known that the regulatory authorities considered that the bank's business had for a number of years been carried out fraudulently. In October 1991 the provisional liquidators terminated the contracts of employment of the applicants on the ground of redundancy. Both the applicants had difficulty in finding employment in the financial services industry for a number of years, allegedly because of the stigma attached to them of having worked for the respondent. The applicants submitted a proof of debt to the liquidators including substantial damages for this loss. The proofs were rejected by the liquidators and the applicants appealed to the judge who held on the basis of an agreed statement of facts that each claim failed to disclose a reasonable cause of action or a sustainable claim for damages. The appeal to the Court of Appeal was dismissed. The decision of the Court of Appeal was overturned by the House of Lords. They held that the applicants were entitled to damages for continuing financial losses sustained arising from the breach of an implied obligation on employer not to carry on a dishonest or corrupt business and further that it was reasonably forseeable that in consequence of such corruption there was a serious possibility that the employee's future employment prospects would be handicapped.

45. The principles on which the decision was based in the leading judgment of Lord Nicholls of Birkenhead are in my view clearly applicable to this case. The relevant principles are clearly stated under headings in the leading judgment of Lord Nicholls of Birkenhead beginning at page 610. I will adopt the same headings for ease of reference.

A dishonest and corrupt business

46. The bank operated its business dishonestly and corruptly. Against this background, an innocent employee of the bank who learned of the true nature of the bank's business was entitled to say, "I wish to have nothing more to do with this organization" and therefore leave the organization at once. This is because in any contract of employment no employee could be taken to have agreed to work in furtherance of a dishonest business.

47. In this case, the employer had not operated a dishonest and corrupt business. However the employer had consistently caused the Plaintiff to act in such a way as to breach the conditions stay of the Plaintiff issued by the Immigration Department by causing her to clean the 3 premises other than the address at which the Plaintiff was employed to work as a domestic helper. The employer had caused the Plaintiff to offend against section 41 of the Immigration Ordinance which states;

"Any person who contravenes a condition of stay in force in respect of him shall be guilty of an offence and shall be liable on conviction to a fine at level 5 and to imprisonment for 2 years."

48. The Defendant through his agent, DW1 had caused the Plaintiff to breach the law with its possible consequences.

An implied obligation

in the 2nd paragraph under this heading at page 610 of the judgment Lord Nicholls states,

"...the bank was under an implied obligation to its employees not to conduct a dishonest or corrupt business. This implied obligation is no more than one particular aspect of the portmanteau, general obligation not to engage in conduct likely to undermine the trust and confidence required if the employment relationship is to continue in the manner the employment contract envisages. . . . The trust and confidence required in the employment relationship can be undermined by an employer, or indeed an employee, in many different ways. I can see no justification for the law giving the employee a remedy if the unjustified trust-destroying conduct occurs in some ways but refusing a remedy if it occurs in others. The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances."

49. In my view the conduct of the Defendant through DW1 in this case is conduct which would destroy the confidence and trust which is a necessary ingredient of the relationship of employer and employee.

Breach

50. At page 611 of the judgment under this paragraph, it states;

"A breach occurs when the proscribed conduct takes place."

In this case a breach had repeatedly taken place.

Remedies (1) acceptance of breach as repudiation

The Plaintiff had done that on the 8th Sept. 1998.

Remedies (2) damages

51. In relation to the damages which are recoverable for a breach of this term, under the head of Premature termination losses, at page 612 of the judgment in my view, these are the same measure of damages described as normal damages in the passage cited from Chitty on Contract above.

52. Apart from that at page 612 of the judgment, Lord Nicholls of Birkenhead refers to Continuing financial losses. Under this head he states;

"Exceptionally, however, the losses suffered by an employee as a result of a breach of the trust and confidence term may not consist of, or be confined to, loss of pay and other premature termination losses. . . . an employee may find himself worse off financially than when he entered into the contract. The most obvious example is conduct in breach of the trust and confidence term, which prejudicially affects an employee's future employment prospects. The conduct may diminish the employee's attractiveness to future employers."

Further down in that section the judgment continues;

"There is here an important point of principle. Are financial losses of this character, which I shall call "continuing financial losses," recoverable for breach of the trust and confidence term? This is the crucial point in the present appeals. In my view, if it was reasonably foreseeable that a particular type of loss of this character was a serious possibility, and loss of this type is sustained in consequence of a breach, then in principle damages in respect of the loss should be recoverable."

In the middle of the 3rd paragraph at page 613, Lord Nicholls states;

"Although the underlying purpose of the trust and confidence term is to protect the employment relationship, there can be nothing unfairly onerous or unreasonable in requiring an employer who breaches the trust and confidence term to be liable if he thereby causes continuing financial loss of a nature that was reasonably foreseeable. Employers must take care not to damage their employees' future employment prospects, by harsh and oppressive behaviour or by any other form of conduct which is unacceptable today as falling below the standards set by the implied trust and confidence term."

53. Further down at page 615 of the judgment in referring to the case of Addis v Gramophone C. Ltd. Lord Nicholls of Birkenhead states that that case was decided before the implied term was adumbrated that the employer would not by conduct destroy or damage the trust and confidence of the employer employee relationship. He stated;

"Now that this term exists and is normally implied in every contract of employment, damages for its breach should be assessed in accordance with ordinary contractual principles. This is as much true if the breach occurs before or in connection with dismissal as at any other time."

54. In this case, the DW1 had treated the Plaintiff in a harsh and oppressive manner. The Defendant had also breached clause 3 of the employment contract. The conduct in breaching Clause 3 of the employment contract caused the Plaintiff to breach her condition of stay and to breach section 41 of the Immigration Ordinance. In so doing the Defendant breached the implied term that he as an employer would not either by himself or his agent, DW1, conduct themselves as to destroy the relationship of confidence and trust with the Plaintiff. The Plaintiff had accepted such repudiation of the contract by the Defendant in breaching clause 3 of the contract of employment and the implied term referred to above. Breach of Clause 3 of the Employment Contract inevitably was a breach of the implied condition to maintain a relation of trust and confidence. As a result of this breach, the Plaintiff was worse off financially than when she entered into the contract of employment. She states that the Immigration Department has only in June given her permission to seek a new contract of employment because she was required to stay in Hong Kong to give evidence in respect of a murder trial. The Defendant had never given her an offer of settlement which was a sum inclusive of all the heads of damages and loss she was entitled to at law. Therefore, the Plaintiff was justified to pursue her claim in the Labour Tribunal and in this Court. The Plaintiff's the ability to enter into the job market to mitigate her loss was curtailed as it is not easy to obtain the Immigration Department's approval to process any contract of employment which she may enter into whilst she is staying in Hong Kong in order to await the outcome of her action until such time as her case is completed. This was reasonably forseeable by the Defendant as the policy of the Immigration Department which renders it difficult to for a foreign domestic worker to process a contract of employment in Hong Kong under circumstances as in this case is generally known. Although the Plaintiff states that she has since June been permitted by the Immigration Department to seek employment in Hong Kong owing to the fact that she has been called as a witness in a criminal trial and has to remain in Hong Kong until then, she states that she had not been able to find alternative employment until now. She states that it is not easy for domestic helpers to find work in the job market in the summer when children are on holiday. Furthermore, it is highly probable that her job prospects would be affected with a court case hanging over her as prospective employers would not always be happy to employ a foreign domestic helper who had run into problems in a previous employment, at least until that is resolved. This would be reasonably forseeable by the Defendant. I therefore am of the view that the Plaintiff is entitled to her claim for continuing financial loss arising out of the repudiation of the contract by the Defendant. I am of the view that she is entitled to damages in the sum of her monthly wages from the 8th September 1998 being the date of her acceptance of the repudiation of the employment contract by the Defendant or his agent, to today's date namely the 10th September 1999. This comes to the sum of $46,577.00. I grant this despite the failure on the part of the Plaintiff in her Particulars of Claim to plead the breach of the implied term on the part of the Defendant by himself or his agents not to conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The existence of such an implied term between a domestic helper and her employer is clear. It is clear that when the Defendant by himself and his agent DW1, breached Clause 3 of the Contract of Employment this implied term was breached thereby. As the Plaintiff was not legally represented, I am of the view that in the interests of justice the failure to plead this should not be an obstruction to her claim under this head.

2. Wages from 27th August to 8th September 1998

This sum is outstanding and the Plaintiff is entitled to this in the sum of HK$1,672.00

3. Return airfare from Hong Kong to Manila including airport departure tax and travel allowance. The Plaintiff produced a price list related to the Philippines Airline and from that price list referred to the price of a one way ticket in the sum of HK$1,250.00. The Plaintiff claims HK$1,305.00. I accept this item of claim in the sum of $1,305.00.

4. Reimbursement of medical examination fee which is claimed under clause 8 of the contract of employment. I accept the Plaintiff's evidence that she had to pay this herself in the sum of 2,000 pesos equivalent to HK$400.

5. Reimbursement of the price of the air ticket from Manila to Hong Kong paid by the Plaintiff when she tendered her agency fee to her agent in the Philippines. The price stated in the air ticket marked Exh P2 was US$211. The HK$ equivalent for that is $1,645. She is also entitled to a travel allowance of $30 per day. The total is HK$1,675.00

55. In view of the above I give judgment as follows:-

Judgment for the Plaintiff against the Defendant in the sum of HK$51,629.00 with interest on the sum of HK$5,052.00 from the date of writ to date of judgment until payment together with fixed costs in the sum of HK$896.00.