DELA CRUZ, CRISTINA C. v. YU WAI-SAM, UNA

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

LABOUR TRIBUNAL APPEAL NO. 34/95

(CLAIM NO. E3491/94, C/C E3638/94)

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R E A S O N S  F O R  J U D G M E N T

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1. This is an appeal from the decision of the learned Presiding Officer making an award in favour of the defendant employer against the claimant employee on the ground that the claimant was in breach of her contract of employment in failing to report for work. It is not in dispute that the claimant never commenced working for the defendant at all. Very briefly, the background leading to the dispute between the parties is as follows.

2. The claimant arrived at the airport with no one to meet her. She ultimately managed to get in touch with the agent in question who was supposed to arrange for her employment in Hong Kong. She was put up by the agent in a boarding house pending obtaining medical certificate and identification card before sending her to the employer to commence her employment. It was alleged by the claimant that during the one or two days she spent with the agent, the agent through one Miss Yip asked her to sign an "IOU" acknowledging indebtedness of HK$9,600 to the prospective employer. The reason given was that she was supposed to receive less salary than that stated in the employment contract, and this difference would add up to the HK$9,600. It would appear that the allegation is that by this scheme, the employer would be entitled to pay her less than the contracted sum stipulated by the Hong Kong Government as the minimum wage for domestic helpers from abroad. This appears to be a scheme to defeat the Government policy.

3. She said she refused to sign this because she never owed this sum of money to the employer. In fact, she had never even met the employer before. She was then taken by the agent to the Immigration Department to apply for an identity card, notwithstanding her refusal to sign on the "IOU". She was told to wait there whilst the agent's representative went off, apparently to attend to other business. The arrangement was that she would be collected later on after she finished processing her application for the identity card. While she was there at the Immigration Department, she met a fellow countryman who had a discussion with her which resulted in her going to the mission for migrant domestic workers. She sought shelter there. She alleged she had a telephone conversation with the defendant or a lady whom she understood to be the defendant. The defendant said she was too busy to deal with her and asked her to sort the matter out with the agent.

4. In her evidence at the hearing before the Tribunal, as well as her subsequent statement filed with the High Court to support her application for leave, she never mentioned specifically that she was told by the employer that she would no longer be employed. This allegation that she would not be employed appeared to be contrary to what she had always been saying, that the employer told her to deal with the agent direct and not to bother her. The only occasion where she made this allegation about the employer telling her that she would not be employed any more appeared as a handwritten addition to the typed statement she tendered to the Tribunal Officer. When her application for leave to appeal came before the court, she was absent. Leave was granted in her absence. According to the record of the learned Deputy Judge who granted her leave, he proceeded on the basis of what he described as undisputed facts. One of the undisputed facts that he had listed was the allegation by the claimant that the employer told her that she would no longer be employed. It would appear to me that there was a misunderstanding by the learned Deputy Judge as to what was controversial and what was not controversial in the proceedings before the Labour Tribunal. This allegation (that the defendant told the claimant that the claimant would no longer be employed) was very much in dispute between the parties. At all times, the defendant denied ever cancelling the contract with the claimant. It has always been the case of the defendant that the claimant never turned up for work. On that very basis, the defendant counterclaimed against the claimant for payment in lieu of notice. And on that basis, she was awarded one month's wages in lieu of notice, and that was the very award against which the claimant is now appealing. It was wrong for the learned Deputy Judge to find that it was undisputed that the defendant did tell the claimant that she would no longer be employed.

5. It is trite law and very clearly stated in the statue that the Appellate Court cannot vary or alter or overrule findings of facts of the Labour Tribunal. The learned Presiding Officer in his decision clearly considered fully the evidence before him. In his reasons for decision, he clearly set out the evidence of both parties in detail. He analysed the evidence, came to the conclusion that the defendant was telling the truth and the claimant wasn't. He gave cogent reasons for coming to that conclusion.

6. I cannot find fault at all with the reasoning given by the learned Presiding Officer as to why he came to the findings of facts as he did. It was clearly open to him to find that the claimant's evidence should be rejected and the defendant's evidence to be preferred. For the reasons given, it is now not open to the claimant to complain that her evidence on this allegation (that she was told by the employer over the phone she would no longer be employed) should be accepted by the Court. That being the position, the whole foundation upon which leave was granted to the appellant to appeal could not have existed. Leave was granted on the point of law that whether there has been a constructive dismissal by the employer based on the alleged telephone conversation. I fail to see any basis for constructive dismissal when the claimant's case was disbelieved. She was not believed on this allegation about the "IOU" nor was she believed on the allegation about being told over the telephone by the employer she would no longer be employed. That effectively put an end to this appeal. I am not able to notice any other grounds of appeal upon which the appellant can stand any chance of success at all. I have taken the liberty of trying to go through the papers in an attempt to see whether there could exist any other grounds of appeal in view of the fact that both parties are appearing in person and without the assistance of legal advice. For the reasons given, the appeal is dismissed. I will now hear parties on the question of costs of their appeal.