XCHRX GLORIA VILLAMAN v. DURGA DEVI TILLANI

1997 L.T.A. No. 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. The Applicant lodged various claims in the Labour Tribunal. Some of those claims were allowed. Others were dismissed. The claims which were dismissed were claims for (i) wages in lieu of notice, (ii) underpayment of wages, (iii) statutory holiday pay, and (iv) severance pay. She now applies for leave to appeal against the dismissal of those claims.

2. Her claims for wages in lieu of notice and severance pay were dependent on her having been dismissed. She had been working as a domestic helper. At the time her employment ended, she signed a letter addressed to the Immigration Department which had been drafted by her employer. In it, she informed the Immigration Department that she would no longer be working for her employer, and requested the termination of her contract. A similar letter was written by her employer. However, the Applicant claimed in the Tribunal that she had not left her employment willingly, and that she had only signed that letter because she would otherwise not have been given a release letter from her employer enabling her to obtain employment elsewhere.

3. The Presiding Officer found that these letters showed that there had been a mutual agreement to terminate the employment, and that therefore the Applicant had not been dismissed. However, a mutual agreement to terminate the employment does not necessarily mean that the employee was not dismissed. If an employer puts pressure on an employee to agree to the termination of the employment, the termination may nevertheless be a dismissal. Whether it will or not depends on all the circumstances of the case. I think that it is arguable that the Presiding Officer did not address this question, but treated the letters which evidenced a mutual agreement to terminate the employment as decisive of the issue whether the Applicant had been dismissed. I therefore give the Applicant leave to appeal against the dismissal of her claim for wages in lieu of notice.

4. However, if the Applicant was dismissed, she was not dismissed by reason of redundancy, nor was she laid off. She was dismissed because her employer believed that she had stolen some money. In these circumstances, her claim for severance pay was bound to fail, and I refuse to give her leave to appeal against the dismissal of that claim.

5. The claim for underpayment of wages was dismissed by the Presiding Officer on the basis that he rejected the Applicant's evidence that she had been underpaid in the past. That was an issue of fact. There was evidence before the Presiding Officer on which it was open to him to make the finding of fact which he did. That evidence consisted of the evidence of another domestic helper, Usha, who claimed that she had also been working for the employer. Since appeals lie only on questions of law, it should follow that leave to appeal against the dismissal of this claim should also be refused.

6. However, the Applicant claims that, since the hearing, Usha has told her that the employer had threatened to cancel her visa if she did not give the evidence which she gave, and that her evidence had been untrue. If that is correct, that would be a ground for setting aside the dismissal of the claim on the ground that it had been obtained by fraud, namely perjured evidence. But since section 35(2) of the Labour Tribunal Ordinance (Cap. 25) prohibits the court from receiving further evidence on an appeal, the evidence of what Usha told the Applicant is not something which the court can take into account on the hearing of the appeal. Accordingly, leave to appeal against the dismissal of this claim must be refused.

7. The claim for statutory holiday pay was based on the Applicant's assertion that the only statutory holidays which her employer gave her were Christmas Day and New Year's Day. The claim was dismissed by the Presiding Officer on the basis that he rejected the Applicant's evidence on the issue. He found as a fact that she had been given all the statutory holidays to which she was entitled. There was evidence before the Presiding Officer on which it was open to him to make the finding of fact which he did. Again, since this was an issue of fact, I refuse to give the Applicant leave to appeal against the dismissal of this claim.

(Brian Keith)

Judge of the Court of First Instance