PAJEL JEONA ANN CALANTES v. LO WING CHUN

HCME 7/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD

APPEAL NO 7 OF 2014

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS

ADJUDICATION BOARD APPEAL NO MB 0349 OF 2014(B))

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D E C I S I O N
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Background

1.  The claimant (“the employee”) was the domestic helper of the applicant (“the employer”).  This is the employer’s application for leave to appeal against MECAB’s award.

2.  The employee tendered a letter of resignation on 18 March, to take effect on 17 April 2014.  The employer claimed that she had waived the one month’s notice and the parties mutually discharged each other.  She paid the employee arrears of wages and travel allowance.  There was dispute as to whether or not she had provided the employee with an air ticket which the employee failed to collect from the agent.

3.  The employee sought payment of wages in lieu of notice (“WILON”), air passage, travelling allowance and bus fare totalling $5,605.

4.  The adjudicator made, in the absence of the defendant, an award in May 2014 (“the May award”) in favour of the employee.  On the employer’s application, and upon the employer’s payment of security of $6,000, the May award was ordered to be reopened in July 2014. 

5.  After a hearing, the adjudicator set aside the May award on 13 November 2014 (“the November order”), but entered judgment against the employer on the item of air passage of $1,500 “by admission”.  Such sum was to be deducted from the deposit in MECAB. 

6.  According to his Decision, the adjudicator considered it unfair to deem the claim as abandoned just because the employee was not yet able to come back to Hong Kong to restore her claims.  Hence he ordered in the first instance on 13 November that the claims for WILON, travelling allowance and bus fare be adjourned sine die and the remaining deposit of $4,500 shall be refunded to the employer after 3 months unless the employer sought to restore the case before that.

7.  The employer applied to review the November order.  At the same time, the adjudicator reviewed the November order on his own motion for no apparent reason. 

8.  It was not clear if the employee had restored the claims in the meantime.  Anyhow, it appeared on 25 November 2014, that the reviews and a hearing took place but the employee was absent.  The employer asked for refund of the security of $6,000 and to have the claims struck out. 

9.  On 1 December 2014, the adjudicator delivered its written award (“the December award”), setting aside the November order and reinstating the May award.  He ordered costs/interest against the employer, being cost of passage and incidental board and lodging expenses which never appeared in the May award. 

10.  The employer seeks leave to appeal against the December award. 

The intended grounds of appeal

11.  Under section 31 of the Minor Employment Claims Adjudication Board Ordinance, Cap 453 (“the Ordinance”), the applicant has to show that the adjudicator has erred on a question of law alone.

12.  At the hearing today, Mr Lau, counsel for the employer, produced a handwritten set of 9 draft grounds of appeal.  In summary, they queried whether there had been a fair trial and whether sufficient reasons have been given for:

(1) A finding of “admission” as to the air ticket; 

(2) Reviewing on the adjudicator on his own motion and whether the employer had been given an opportunity to respond to the same.

13.  The employer also challenged the awards of travel allowance, bus fare and the quantum of costs/interest as being made without or without sufficient evidentiary bases.

14.  I find all of these grounds to be arguable.  I therefore give leave to the applicant to argue the 9 grounds.  Costs of the leave application are reserved.

15.  The hearing bundle for this leave application shall be kept by the judge’s clerk and the applicant shall update it with necessary documents for the appeal.

16.  I thank Mr Lau for his assistance.