QUERUBIN ALONA RAMOS v. CHUNG SHIU-WAH ANGELA

HCME 6/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD

APPEAL NO. 6 OF 2004

(On appeal from Minor Employment Claims Adjudication Board

Claim No. MB701of 2004(F))

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DECISION

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1.  This is the defendant’s application for leave to appeal against the decision of the Adjudicating Officer of the Minor Employment Claims Adjudication Board made on 21 June 2004 entering judgment for the claimant for, among other items of claim, one month wages in lieu of notice.

Background

2.  The claimant was employed by the defendant under a domestic helper contract commencing 13 August 2003.  The employment was subsequently terminated.

3.  On 14 April 2004, the claimant brought a claim in the Minor Employment Claims Adjudication board against the defendant for: (1) one month wages in lieu of notice, (2) statutory holiday pay, (3) airfare for returning to the Philippines, and (4) bus fare.  The defendant agreed to pay for the last two items of claim.  The only dispute requiring adjudication was the first two items of claim.

4.  It is common ground that the defendant, not happy with the claimant’s performance, had on 15 December 2003 given the claimant a letter, which the defendant had described in the caption of the letter as a “Written Warning Letter”.  On 21 January 2004, the defendant asked the claimant to leave the house and terminated her contract.  The defendant also gave the claimant two cheques.  The first was to cover the untaken holiday pay and the salary for the period from 1 to 21 January 2004.  The second was to pay for the air ticket to return to the Philippines.

5.  Subsequently on 26 January 2004, the claimant requested and the defendant agreed to allow the claimant to return to stay in the defendant’s house temporarily.  Eventually on 22 February 2004, the defendant asked the claimant to move out.  On that occasion, the defendant issued two cheques to replace the two cheques that were given to the claimant in January 2004.  The defendant however held back the cheque for the air ticket for the reason that the claimant had agreed to fix the kitchen door lock that had been damaged.

6.  The Adjudicating Officer found as a fact that the employment came to end on 21 January 2004.  On this basis, she dismissed the claimant’s claim for statutory holiday pay for 3 holidays after the termination.  On the claim for wages in lieu of notice, the Adjudicating Officer rejected the defendant’s defence that the employment had been properly terminated by the 15 December 2003 letter.  She held that the letter did not constitute a proper notice of termination and the defendant was liable to pay the claimant one-month wages in lieu of notice.

7.  Subsequently, the defendant applied for a review, which was granted on condition that the defendant made a payment into court in the sum of $5000.  The defendant did not make payment in and further withdrew the review application.

The application for leave to appeal

8.  On 2 July 2004, the defendant applied for leave to appeal.  The defendant only appeals against the part of the decision that she is liable to pay the claimant wages in lieu of notice.

9.  Under section 31 of the Minor Employment Claims Adjudication Board Ordinance, cap. 453, appeal from decisions of the Board can only be brought on grounds involving a question of law or
on the ground that the claim was outside the jurisdiction of the Board.  Accordingly, the defendant must satisfy the court that her intended appeal involves an arguable point of law or jurisdiction in order that leave to appeal can be granted.

10.  Principally, the defendant has three grounds for her intended appeal.  Firstly, it is said that the Adjudicating Officer did not afford her an opportunity to present her case.  Secondly, the defendant says that she is entitled to summarily dismiss the claimant without notice under section 9 of the Employment Ordinance because the claimant had wilfully damaged her properties.  Thirdly, the defendant states that it was because she was on business visit outside Hong Kong that she did not terminate the employment upon the expiration of the one-month period mentioned in the 15 December 2003 letter.

11.  On the first ground, the defendant’s complaint is that she had been prevented from discrediting the claimant through cross-examination, and from going into the details of the damage to the kitchen door.  She also said she did not have an opportunity to explain how it was that she only came to terminate the claimant on 21 January 2004. 

12.  The Adjudicating Officer’s Notes of Proceedings are before this court.  It shows that the trial took place on 2 days, during which both the claimant and the defendant had given evidence, being asked questions by the other side and the Adjudicating Officer and also made short speeches after the evidence was taken.  In particular, the defendant had raised a number of questions for the claimant.  In the end, the Adjudicating Officer did find the evidence of the claimant confusing and make factual finding against her.  As to the damage to the kitchen door and the performance of the claimant during employment, the defendant had given an account of those in the defence statement, and they were before the Adjudicating Officer.  But in the light of the defendant’s case presented at the trial, a matter that I shall elaborate further below, these are immaterial to the issue that the Adjudicating Officer had to decide.  The same goes for the reason for not ending the employment upon the expiration of the one-month period from the giving of the 15 December 2003 letter. The defendant’s complaint that the trial was unfair because she could not fully present her case is unsubstantiated.  I should add that although proceedings before the Board are intended to be informal, due observance of procedure and control as to the order of giving evidence and speech must still be observed to ensure that the hearing is conducted orderly and efficiently.  It therefore falls upon the Adjudicating Officer to regulate the parties and ensure that the evidence, questioning and speeches are confined to relevant matters.

13.  As to the second ground relating to the right to summary dismissal, the defendant explained at the hearing before this court that when she returned home late on 20 January 2004, she found the kitchen door and door lock damaged, and her son told her it was because the claimant had accidentally locked the kitchen door and had to force open the door to gain entry. 

14.  The defendant had mentioned the incident in her defence statement, but not in the context of the claim for wages in lieu of notice.  She mentioned this as explaining why she had withheld the cheque for the air ticket. It is her case that the claimant had agreed to fix the damage, but did not honour the promise, and the cheque was withheld pending the repair to the kitchen door.  The defendant’s defence to the claim for wages in lieu of notice was that she had by the 15 December 2003 letter given warning that the employment would be terminated if the claimant showed no improvement in the next one-month period, and that she had on 21 January 2004 formally terminated the employment.

15.  Given that summary dismissal was never raised at the trial, the Adjudicating Officer cannot be expected to make any finding in this regard.  It is not an Adjudicating Officer’s duty to explore and investigate each and every possible ground in support or against the claim, however remote and irrespective of whether it is capable of rising on the parties’ case.  Her duty is only to examine and consider issues and evidence that are properly before the Board and to adjudicate the claim on the basis of the parties’ case as presented to her.   It is the parties’ responsibility to present the case properly and fully to the Board.

16.  In my view, there is no failure on the part of the Adjudicating Officer in not considering summary dismissal.  Additionally, it is too late and also unfair to the claimant for the defendant to seek to raise a completely different and new ground of defence to the claim at the stage of an appeal. 

17.  On the third ground, the defendant had not mentioned in her defence statement or at the trial that she was away from Hong Kong and therefore could not terminate the employment immediately upon the expiration of the one-month period mentioned in the 15 December 2003 letter.  An appeal does not operate as a re-trial.  It is not open to the defendant to adduce fresh evidence on an appeal.  In fact, the defendant had been afforded an opportunity to put in new materials when she applied for a review.  It was her decision not to pursue the review.

18.  Even if there is evidence supporting her case that she was outside Hong Kong on around 14 January 2004, it does not assist the defendant’s case.  The 15 December 2003 letter, for all intent and purposes, is not a notice of termination on one month’s notice.  It is in substance and as its caption indicates, a warning letter.  It does set out to terminate the employment after the one-month period.  It is, as the defendant herself had said and understood, a warning against the possibility of termination in the event there was no improvement.  It therefore entails another act of termination should the claimant really failed to improve.

19.  Further, had the letter been intended and understood to be a termination letter, the claimant would have to leave the employment immediately after 14 January 2004.  The evidence does not show that the claimant was told not to work after 14 January 2004.  On the contrary, the evidence shows that the claimant had continued to work until 21 January 2004, as manifested by the fact that she was paid up to 21 January 2004.

20.   The defendant explained at the hearing before this court that the letter was given to the claimant not on 15 December 2003 but afterwards.  Again, this was not raised before the Board and cannot now be received on appeal.  The defendant also said that she was unaware of what to prepare and present at the trial because she did not have legal assistance.  Legal representation is not allowed at the Board.  The claimant and the defendant are in the same position.  There is thus no unfairness.  After all, these are all factual matters that do not really involve legal advice.   

Conclusion

21.  For the reasons indicated above, the defendant has failed to demonstrate that her intended appeal involves any arguable point of law or jurisdiction.  The application for leave to appeal is therefore refused.