ALCANTARA, EVELYN RUEME v. NGAI CHAU KAM ROSITA

HCME14/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO. 14 OF 2010

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS

ADJUDICATION BOARD CLAIMS NO. 1430/2010(F) & 1665/2010(F))

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BETWEEN

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DECISION

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1.  The applicant applies for leave to appeal against an award dated 8 November 2010 of the Minor Employment Claims Adjudication Board (“the Board”) made in two claims. By the award, the applicant was to pay the respondent $4,500 in full and final settlement of the two claims. The applicant had paid the amount on the same day.

The claims

2.  The respondent was a foreign domestic helper employed by the applicant under a contract dated 13 March 2010.  It is the applicant’s case that she terminated the contract on 4 August 2010 by giving the respondent one month’s notice.  The respondent, on the other hand, said that the applicant terminated the contract on 4 August 2010 without notice.  It is, however, common ground that a dispute arose between them and the applicant made a report to the police.  In the presence of the police officer, the applicant wrote out a document, which stated that the respondent’s employment was terminated on 4 August 2010 and the salary and air ticket would be collected from the agent’s office.  Both parties signed on the document. Thereafter, the respondent left the claimant’s home.  On the same day, the applicant notified the Immigration Department in writing that the respondent’s contract was terminated on 4 August 2010 for five reasons specified therein, all of which related to the conduct and performance of the respondent.

3.  On 7 September 2010, the respondent brought a claim against the applicant, claiming for arrears of salary for the period from 29 July to 4 August 2010, one month’s wages in lieu of notice, annual leave pay on pro rata basis for the period from 28 April to 4 August 2010, air passage and allowances for returning to Manila, totalling $5,827.64.

4.  On 9 October 2010, the applicant issued proceedings in the Board, claiming for one month’s wages in lieu of notice in the sum of $3,580, on the basis that the respondent had left her employment without notice.

5.  On 8 November 2010, the parties attended before the Board for a second hearing of their claims.  They entered into and signed a Settlement Agreement, under which the applicant agreed to pay the respondent, and the respondent agreed to accept, $4,500 in full and final settlement of their respective claims.  They also agreed not to have further claims against each other.  The Settlement Agreement was read and explained to the parties by the Deputy Registrar of the Board, through the interpretation of two interpreters.  The Board approved the Settlement Agreement and, on the basis of it, made the award in question.  The award is therefore an award by consent.

The intended appeal

6.  Section 31(1) of Minor Employment Claims Adjudication Board Ordinance, Cap. 453, provides:

“Any party who is aggrieved by a decision of the Board-

(a) on any ground involving a question of law alone; or

(b) on the ground that the claim was outside the jurisdiction of the Board,

may, with leave to appeal granted by the Court of First Instance upon application, appeal to the Court of First Instance.

7.  Accordingly, leave to appeal will only be granted if the applicant can show that her intended appeal involves a question of law or the claim is outside the jurisdiction of the Board, and that the intended appeal is reasonably arguable.

8.  In applying for leave to appeal, the applicant raised a number of points.  First, she complained that the Adjudicator did not properly understand her case and had misunderstood the documents.  In particular, the applicant said she had not asked the respondent to leave her home immediately and that the notification she sent to the Immigration Department should not be read against her.  Second, the applicant complained that the Adjudicator had made accusations against her profession as a nurse and criticised her personal decision.  Third, the applicant claimed that the Adjudicator had remarked that if the claims were not compromised, there would be more hearings and attendances before the Board, and that even if she were to appeal to the High Court, the Court would lean in favour of the weak minorities in the community, including the respondent.

Reasons for decision

9.  The award of 8 November 2010 is an order by consent.  It was based on the Settlement Agreement entered into by the applicant and the respondent.  The Settlement Agreement is a contract between the parties, creating legal obligations that are binding on them.  As a matter of fact, the parties had already performed and acted upon the Settlement Agreement: the applicant had paid the agreed sum to the respondent and both their claims had been disposed of. 

10.  The circumstances in which a judgment or order by consent may be set aside are limited.  It has to be shown that there are grounds invalidating a compromise that is not contained in a judgment or order: Halsbury’s Laws of England (Fifth Edition) vol.12 para.1143.

11.  The applicant’s complaints against the Adjudicator do not amount to any ground for overturning the award.  It is important to note that, because of the Settlement Agreement, there was no adjudication by the Board on the merits of the two claims.  There was no finding as to whether it was the applicant who had terminated the contract without notice or it was the respondent who left the employment without notice.  It follows that whether the Adjudicator had properly understood the applicant’s case and any views the Adjudicator’s may have on the effects of the applicant’s notification to the Immigration Department (or even the document the applicant wrote out in the presence of the police officer), have no bearing on the validity of the Settlement Agreement and the award.  

12.  As to the applicant’s complaints about the remarks made by the Adjudicator, the first point to note is that the transcript of the hearing before the Board is not available to this Court and the Adjudicator has not been given the opportunity of responding to the applicant’s assertions.  This Court is therefore not in a position to conclude whether the Adjudicator had indeed made the remarks complained of. 

13.  Assuming, however, that the Adjudicator did make the remarks complained of, this does not by itself afford a basis for overturning the award.  Admittedly, the applicant was on 8 November 2010 not yet ready for trial.  That being the case, any observation that there had to be further hearings and attendances by the parties if the claims were not compromised was neither erroneous nor improper.  Further, while it would be an inappropriate remark, had it been made, to say that the Courts would harbour certain bias in its adjudication, it is another thing to say that the applicant was pressurized or misled by such remark into compromising the claims.                                 

Conclusion

14.  For the above reasons, the applicant has not shown that her intended appeal involves any reasonably arguable question of law or that the claims fall outside the jurisdiction of the Board.   Leave to appeal is accordingly refused.