TAGUIANG JULITA CASTILLO v. ULRICH GEISSLER

HCME 2/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS TRIBUNAL NO. 2 OF 2006

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS ADJUDICATION
BOARD APPEAL NO.MB2150 OF 2005(C))

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J U D G M E N T

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1.  This is an appeal from a dismissal of a claim by the Minor Employment Claims Adjudication Board.

2.  The claimant used to be a domestic helper of the respondent.  Her service was terminated during the seventh month of her second contract with the respondent.  She was given one month’s wages in lieu of notice of termination. 

3.  She claimed that before entering into the second contract, another expatriate had offered to employ her at $4,000 per month.  The respondent therefore promised to raise her wages to $3,670 per month in the second contract.  Despite what she said, the written contract only provided for $3,270 per month as her wages. 

4.  There was no dispute that she was paid $3,540 per month which was made up of $3,270 plus $270.  The $270 were for some other purposes and there was no dispute as to this sum.

5.  Regarding the alleged balance of ($3,670 - $3,270 =) $400 per month, the claimant said that the respondent had agreed to open a bank account for her and he would deposit $400 into this account for her every month.  She was, however, never given any document about this bank account.  When her service was terminated in August 2005, she was not given this $400 per month for her seven months’ service.  The wages in lieu of notice also did not include this $400.  She therefore made a claim against the respondent for ($400 x 8 =) $3,200.

6.  The respondent’s case was that the claimant all along had financial problems.  When he renewed her contract, he only promised that if the claimant should complete the second contract satisfactorily, she would be paid a discretionary bonus calculated on the basis of $400 per month for the period of the second contract.

7.  The matter was tried by the Board on 1 December 2005.  After questioning the parties for a while, the adjudicating officer adjourned the hearing for the parties to produce further evidence. 

8.  The hearing continued on 13 January 2006.  The adjudicating officer confirmed with the claimant that the contract only stated the monthly wages at $3,270 and that the Commissioner for Labour had not consented to any variation of any term in the contract.  The claimant then sought a further hearing so that she could produce some records from the bank to prove the receipt of her wages.

9.  I do not understand why the claimant needed this adjournment.  There was no dispute on what she had been paid.  The dispute was on what she had not been paid.  Such disputed sum would not appear in her bank account record.  Though she alleged that the respondent had promised to open an account for her and to deposit $400 per month into this account for her, she had never been given any paper about this account.  Even if such an account did exist, she would not be able to say anything about it.  It goes without saying that she would not have been able to produce any record of this account.  The adjudicating officer also did not question her on what bank record she was going to produce or what she wanted to prove with such records.  The adjournment as sought would appear to be unnecessary as the claimant had not shown that it would facilitate and/or be beneficial to the adjudicating process.

10.  In any case, the adjudication officer allowed the claimant’s application to adjourn.  He further imposed a condition that the claimant should deposit a security of $3,000 into the Board within seven days before the next hearing would be fixed.  He relied on section 29 of the Minor Employment Claims Adjudication Board Ordinance, Cap. 453.  It reads:

“29.      The Board may at any time, either of its own motion or on the application of any party, adjourn the hearing of proceedings on a claim on such terms as it may think just.”

11.  The adjudicating officer said that he imposed the payment condition in order not to allow the claimant to abuse the proceedings.  He also said that the security also served a useful purpose of ensuring that a sum of money would be available to pay the costs to be awarded to the respondent in the event the claimant should fail to prove her case.

12.  The claimant did not pay this sum into the Board and her claim was dismissed on 20 January 2006 for this failure.  She said this morning that she did not have the money to comply with the payment condition.

13.  I do not think the adjudicating officer should have allowed the adjournment as it would not have served any useful purpose.  If there were no adjournment, the claim would not have been dismissed without adjudication on its merits.  However, the payment condition was even more problematic.  It resulted in the dismissal of the claim before the adjudication was completed.

14.  I suggest that adjudicating officers should satisfy themselves that any adjournment of a hearing would facilitate and/or be beneficial to the adjudicating process before allowing it.  Otherwise, it would only produce wastage of resources and inconvenience to the parties.

15.  In granting adjournments, I appreciate that there are situations where it is not only reasonable but also necessary to impose a payment condition under section 29 of the Ordinance.  The purpose may be to prevent abuse and/or to ensure that money would be available to pay the costs of the other party if that party should be successful in the end.

16.  If the purpose is to ensure that there would be money available to pay the costs of the other party, the adjudicating officer should first consider what sum is reasonably necessary for such purpose.  The amount to be fixed should not exceed this sum.  He should then consider the means of the party required to pay.  The amount to be paid should not be beyond the means of this party.  Otherwise, the claim or the defence would be stifled by impecuniosity.  This is particularly important for cases involving foreign domestic helpers as most of them only have limited financial resources available locally. 

17.  The exercise of the discretion by the adjudicating officer would have to depend on the facts of each particular case.  It is possible that after considering all the facts of the case including the means of the paying party, the sum to be fixed in the order may be less than the reasonable sum required for paying the costs of the other party. 

18.  Coming back to this appeal, the claim was a simple one and the facts quite straightforward.  There were already two hearings and it was unlikely that it would go beyond a third one.  To require the claimant to pay $3,000 to the Board as security appears to be excessive.  The adjudicating officer did not explain why he thought $3,000 were reasonable and appropriate.  Even if the claimant should lose the claim at the end, I do not think the total amount of costs payable to the respondent for three short hearings should amount to $3,000. 

19.  On the facts of this case, I do not think any reasonable adjudicating officer properly exercising his discretion would have made such an order.  In imposing an excessive payment order which was beyond the means of the claimant and without any proper justification, the adjudicating officer has made an error of law.

20.  Since I have come to the conclusion that the adjudicating officer has erred in law in requiring the claimant to pay $3,000 before another hearing would be fixed for the adjudication of her claim, I shall allow this appeal.  I also remit the claim back to the Board for a trial de novo before another adjudicating officer.  Since the claimant’s service had been terminated in August 2005 and she has been out of work since then, I also direct that this claim shall be tried at an early date.

21.  Finally, I would not make any order of costs for this appeal.  The reason being that the ultimate cause for this appeal was the claimant’s application for an adjournment, which was unnecessary.