CRISTINA DELA CRUZ v. YU WAI SAM

IN THE COURT OF APPEAL

1995, No. 259
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an appeal from a judgment of Jerome Chan J given on June 26 last year dismissing the appellant's appeal against a decision of the Labour Tribunal given on March 15 that year.

2. By a contract of service dated August 4, 1993, the appellant agreed to serve the respondent, and the respondent agreed to employ the appellant, as a domestic helper. It is convenient to refer to the appellant as "the helper" and to the respondent as "the employer".

3. The facts found by the Labour Tribunal may be outlined thus. The parties had been brought together by an employment agency. On April 27, 1994, the helper arrived in Hong Kong by air from the Philippines, and was put up in a boarding house by the employment agency. On the following day, she was given a medical examination arranged by the employment agency. And on the day after that, she was taken to the Immigration Department by the employment agency in order for her to apply for an Identification Card. However, instead of returning to the boarding house where she had been put up, she went off to the Mission for Filipino Migrant Workers. And she never took up her duties with the employer.

4. It was her case that she behaved as she did because a Ms Yip of the employment agency had tried to get her to give an IOU for $9,600 as if she had received a loan in that amount from the employer when in fact she had not. But the Labour Tribunal disbelieved the helper when she said that she had been asked to give an IOU, and believed Miss Yip when she denied having tried to get an IOU from the helper. The contract between the parties was, the Labour Tribunal concluded, wrongly terminated by the helper.

5. What the helper claimed is set out in the Labour Tribunal's Reasons for Decision thus:

6. And what the employer counter-claimed is set out thus in those Reasons:

7. The formal order of the Labour Tribunal as drawn up is in these terms:

"1) Claimant's claims for one month wages in lieu of notice, loss of earnings between 27.4.1994 and 25.10.94, travelling allowance and reimbursement of official document are dismissed.

2) Judgement entered in favour of the Claimant against the Defendant in the sum of $1,260.00 as claim for an open air ticket.

3) Judgement entered in favour of the Defendant against the Claimant in Counterclaim No. E3638/94 for $3,200.00 for one month wages in lieu of notice.

4) Defendant's claim for Agent's fee and medical check-up in Counter-claim No. E3638/94 are dismissed.

5) After set off, Claimant: Dela Cruz, Cristina C. to pay the Defendant: Yu Wai-sam, Una a sum of $1,940.00 Payment to be made into the Tribunal within 7 days.

6) No order as to costs."

8. Both parties were in person before Jerome Chan J. Neither from his judgment nor from any other source is it apparent precisely what the helper sought in the appeal to him. There is, however, a document dated May 26, 1995, prepared by her for the purpose of that appeal in which she sets out heads of claim totalling $51,912.70.

9. Anyway, the judge dismissed the appeal to him in toto.

10. It is possible to say a lot about the difficulties created by the documentation in this case. But it is best to cut through all of that and get to the heart of the matter.

11. Appeals to this Court from decisions of the High Court hearing an appeal from the Labour Tribunal lie only on questions of law of general public importance. Section 35A of the Labour Tribunal Ordinance, Cap. 25, so provides.

12. Given an adjournment during this hearing for the purpose of doing so, Mr Chang for the helper formulated in writing the following two questions as questions of law of general public importance for our decision in this appeal:

"1. Was the Presiding Officer right as a matter of law to grant the counterclaim of $3,200 to the [employer] when (a) there is no legal basis for him to do so under S. 8A of the Employment Ordinance or otherwise and/or (b) there is no factual basis to do so upon which to apply the law because (i) he failed to discharge his statutory duty to investigate adequately the facts leading up to the termination of the employment and/or (ii) he failed to discharge his duty to make sufficient findings of fact to make his award?

2. Was the Presiding Officer wrong in law when he set off the award to the [helper] in the sum of $1,260 for air passage against the award to the [employer] on her counterclaim of $3,200."

13. Part of the first question formulated by Mr Chang strays on to the facts in a way in which we cannot be concerned in such an appeal as this in which we are not free to revisit the facts.

14. The question of law which it raises turns on the true construction of section 8A(1) of the Employment Ordinance, Cap. 57, which reads:

"Without prejudice to section 9, 10 or 11(2), where a contract of employment is terminated otherwise than in accordance with section 6 or 7, a sum equal to the amount of wages which would have accrued to the employee during the period of notice required by section 6 shall be payable by the party terminating the contract to the other party."

15. If an employee is in repudiatory breach and the contract of employment is treated as at an end by the employer as a result ( that being the context which arises on the facts found by the Labour Tribunal here ( who is the party terminating the contract within the meaning of section 8A(1)?

16. In our view, the answer must be that it is the employee.

17. As pointed out in para. 37 - 134 at p. 801 of the Second Volume of the 27th ed. of Chitty on Contracts, termination of a contract of employment is not really a concept with a single clear meaning.

18. The meaning which we should give section 8A(1) cannot be concluded by things said in the context of a different statutory scheme. Nor can it be governed by the Common Law analysis of how and when contracts are discharged in the absence of a statutory context which may alter the Common Law position.

19. Here, Mr Chang accepts that the contract has been "terminated otherwise than in accordance with section 6 or 7". So the party terminating it must pay the other party. To hold that the party terminating it - and therefore the one liable to make payment - is the innocent party would reward the guilty at the expense of the innocent.

20. That would be absurd. And it would run counter to the language used by the Legislature, giving such language a fair reading.

21. As to the second question formulated by Mr Chang, there is no authority or principle which excludes the right to rely on a cross-claim to diminish or extinguish an award of a sum of money in respect of free return passage.

22. Can it be that an employee is entitled to not a sum of money representing an airline ticket but the very airline ticket itself?

23. We do not see that that result can be arrived at by way of the proper construction of the contract here in question, giving it a fair reading.

24. It might be added that such a construction would create great practical problems because the Labour Tribunal has no jurisdiction to make a mandatory order or to decree specific performance.

25. It could not therefore make such an order or grant such a decree requiring an employer to provide an airline ticket in specie.

26. The jurisdiction of the Labour Tribunal is set out in section 7(1) of the Labour Tribunal Ordinance, Cap. 25. And it is to "enquire into, hear and determine the claims specified in the Schedule". The Schedule does not specify any claim for a mandatory order or for specific performance. Quite clearly, what it permits are claims for sums of money.

27. Consistently with that, there is this procedural consideration. The contents of the claim before the Labour Tribunal must be, it is specified under section 12 of the Labour Tribunal Ordinance, in a particular form. And one of the things that the claim shall contain, it is provided in that section, is "the sum of money claimed".

28. In those circumstances, neither of the questions of law raised on behalf of the helper can be determined in her favour; and it is necessary therefore to dismiss this appeal, which we do.