LOPEZ, MARITES E. v. SO, MUN YING TERESA

LTA No.70 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. The Applicant, Marites E. Lopez, commenced employment for the Respondent on 9 December 1994. The Applicant's employment ceased on 22 January 1995. On 22 March 1995, she made a claim to the Labour Tribunal for various sums to be paid by the Respondent including a month's wages in lieu of notice. The claim that was filed with the Labour Tribunal, and which was served upon the Respondent, did not set out the grounds upon which her claim was based. It merely itemised the various amounts she was claiming, the relevant claim for this appeal being one month's wages in lieu of notice.

2. The Applicant filed two statements with the Labour Tribunal. The first related to the circumstances or the events that occurred on 22 January which gave rise to her departure from her employment. There is a letter of resignation, which is Exhibit D2 submitted by the Respondent, which was signed by the Applicant and it reads as follows :-

"I regret to inform you that I will be resigning from the position of Domestic Helper in your household with immediate effect starting today, January 22, 1995. I want to go immediately without notice and be helpers' one month notice in lieu will be deducted from her salary to date."

This letter was signed by the Applicant and witnessed by Evelyn Soliven. A calculation of payment due is contained in the same letter.

3. The Applicant's case was that she was coerced into signing this letter, that she did not do so of her own free will, and that she was effectively terminated without notice by the Respondent. She filed a second statement which, however, was never forwarded to the Respondent which put forward an alternative claim. The alternative claim is that if the Court were to come to the view that the letter was signed by her of her own free will, she was entitled to leave without giving her employer any notice because the employer was guilty of misconduct which amounted to constructive dismissal.

4. At the hearing before the learned Presiding Officer, it was the letter of resignation and the circumstances in which it was written that was the focus of the inquiry. After hearing evidence from the Applicant and the Respondent, as well as from their witnesses, the learned Presiding Officer came to the view that the Applicant was not a truthful witness. Having rejected the Applicant's evidence and that the letter was signed by her of her own free will, the learned Presiding Officer did not then go on to deal with the alternative allegation.

5. The Applicant applied for legal aid which was refused. She appealed against that refusal which was scheduled to be heard before a Master on 13 December. This appeal first came before me on 7 November. It was adjourned so as not to deprive the Applicant of the possibility of obtaining legal representation although it was of great inconvenience to the Respondent. The appeal against refusal of legal aid was dismissed. Apparently the Defendant failed to appear at the hearing before the learned Master. She therefore appears in person today.

6. The appeal that comes before me today is based essentially on the ground that the learned Presiding Officer ought to have enquired into the allegations which constituted this alternative ground. There is no appeal regarding the other sums that were adjudicated upon by the learned Presiding Officer. The question before me is, therefore, whether the learned Presiding Officer ought to have considered the alternative submission of constructive dismissal.

7. It appears to me that the alternative plea is inconsistent, and certainly does not sit happily, with what had been found to be an act of her own free will, that is voluntary resignation and the circumstances in which that came about. It appears to be a case of the Applicant wanting to have it both ways. Be that as it may, I will consider now whether the allegations made by the Applicant, as a matter of law, can constitute constructive dismissal.

8. The allegation comes to this: the Respondent failed to grant rest-days to which the Applicant was entitled under the provisions of the Employment Ordinance; that there were "illegal" requirements made of her to work on her rest-days, such "illegal" requirements being a requirement to work from six to nine in the morning and to report back to work by 9:30 pm on that rest-day. However, she gave no particulars of the "work" she was allegedly required to do.

9. In all, the Applicant had worked for six weeks for the Respondent. Under the provisions of the Ordinance, she would have been entitled to six rest-days. The Applicant's allegation is that she had only three rest-days during the time she worked for the Respondent, namely on 25 December 1994, 4 and 11 January 1995. It follows from her allegation that her case is that she was required to work and not given three of the rest-days to which she was entitled. In addition, she says, the 25 December was a statutory holiday - that was a Sunday which was her rest-day, therefore, she ought to have been entitled to another day off which she was never granted.

10. I have reviewed the evidence in the form of exhibits that were before the learned Presiding Officer. There is evidence and clear evidence that the Applicant, when she commenced her employment, agreed that by mutual agreement she would work on a rest-day and be paid a pro rata wage for that, being $125.00 for the day. There is a document headed "Worksheet" dated 9 December 1994 which clearly specified which day she was to have off during the week. This was changed on 25 December to Wednesdays. It was specifically provided that she could stay at home during her days off and take a rest without having to work and if she happened to work as mutually agreed, compensation would be HK$125.00 for each day. This document was signed by the Applicant.

11. Exhibit D2 is a record of payments that had been made to the Applicant, it shows very clearly that she was paid for 23 days for the month of December, at $125.00 a day and in addition, she was paid compensation for 10 December and 17 December, being rest-days at $125.00 per day. This document was signed by the Applicant. The salary record is clear proof that of the six rest-days to which she was entitled during her employment, she had agreed to work on two of them and had been duly paid by the Respondent.

12. On her own evidence, she has taken three other rest-days. That leaves only one rest-day rather than four rest-days that could conceivably support her allegation of conduct that amounted to constructive dismissal. The day that is in dispute is 18 January. It is the Respondent's case that the Applicant had that day off. The Applicant appears to suggest that she was not given the day off.

13. On the question of entitlement to a statutory holiday on 25 December, I think the position is that under the provisions of the Employment Ordinance, she was entitled to a day off. But had she taken such a day off, not having worked for the statutory 3 months, she would not have been entitled to any pay for that day: see section 40 of the Employment Ordinance. The evidence is that she was paid for that day, so I do not think it now lies in her to make any claim in respect of her entitlement to the statutory holiday.

14. Having regard to the evidence that I have reviewed, and assuming in her favour that she was required to do some work on her rest-day, I do not see that there are sufficient facts that could conceivably support and substantiate a claim of constructive dismissal at law. Even if the learned Presiding Officer ought to have considered this point, it would have made no difference in the result.

15. The learned Presiding Officer had the benefit of seeing the witnesses. He was best placed to form a view as to their veracity. I see no basis for disturbing his holding that the letter of resignation was signed on a voluntary basis and that the Applicant was not coerced into doing so by the Respondent. In my view, it is quite clear that the reason why the Applicant left her employment was not because of the so-called acts giving rise to constructive dismissal. This was an after-thought. The allegation was wholly devoid of merit.

16. For the reasons that I have stated, this appeal fails.

17. There is really only one matter outstanding. There is an issue of fact as to whether or not the Applicant did have a rest-day on 18 January. Although the Applicant has not made a claim in respect of wages for that day had she worked and not taken the day off, the Respondent, on an ex gratia basis, is willing to pay the Applicant $125.00 and undertakes to do so. In the circumstances, I see no reason for remitting any part of this case back to the learned Presiding Officer. I hereby dismiss this appeal.