PRIMNE, CRISTINA LLANDELAR v. WONG KA CHUN

HCME 2/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO 2 OF 2016

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS

ADJUDICATION BOARD CLAIM NO MB0365/2016(A))

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D E C I S I O N

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Introduction

1.  This is an application by the claimant for leave to appeal against the decision of the Minor Employment Claims Adjudication Board (the “Board”) dated 22 June 2016, pursuant to section 31(1) of the Minor Employment Claims Adjudication Board Ordinance, Cap 453.  The relevant parts of that subsection read:

“Any party who is aggrieved by a decision of the Board … on any ground involving a question of law alone … may, with leave to appeal granted by the Court of First Instance upon application, appeal to the Court of First Instance”.

2.  The part of the Board’s award by which the claimant is aggrieved is the dismissal of her claim for one month’s wage in lieu of notice.  The ground for this application set out in Form 13 is in short that the Board “failed to consider the violation committed by the defendant when he provided the claimant a makeshift room in the balcony which was exposed to all kinds of elements”.

Background

3.  The background leading to this application can be summarized as follows.

4.  The claimant was a Filipino domestic helper employed by the defendant.  She arrived in Hong Kong on 27 August 2015 and commenced working for the defendant on 1 September 2015 with monthly wages of $4,110.  The defendant lived with his wife, two children aged respectively 5 ½ years and 4 years, and a newborn baby. 

5.  On 3 May 2016, the claimant took one day’s leave and approached the Mission for Migrant Workers for assistance.  She then sent a message to the defendant to inform him that she would not return to work.  On 4 May 2016, the claimant went back to the defendant’s place to collect her belongings.  The claimant alleged that she was constructively dismissed on the ground of unsuitable accommodation which was a makeshift structure outside the flat.  She was worried that objects might fall from height and endanger her life if she continued staying in the room.  She claimed against the defendant for, inter alia, wages in lieu of notice.

6.  Because of the above complaints, the claimant considered herself to have been dismissed constructively.

The Board’s decision

7.  The Board was well aware of the claimant’s case of constructive dismissal; it was expressly so stated in the Notes of Proceedings.  The Board correctly summed up the legal test for determining whether the employer’s conduct amounted to constructive dismissal, and relied in particular on the legal principles set out in the Court of Appeal’s decision in Fong Mung Yan v ISS Hong Kong Services Ltd, CACV 344/2005 (Judgment dated 28 November 2007).

8.  For ease of reference, the said legal principles are quoted below:

“The law on constructive dismissal is clear: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed: Western Excavating (E.C.C.) Ltd. v. Sharp [1978] 1 QB 761 per Lord Denning MR”.

9.  The Board did not find that the defendant was guilty of any conduct which constituted constructive dismissal, and accordingly dismissed the claimant’s claim for wages in lieu of notice.  In essence, the Board made the following findings:

(1)  The room in question had door and window, and housed a single bed and a three-drawer cabinet.  It was equipped with light, socket, electric fan and air-conditioner.  The claimant was allowed to use a dehumidifier to dry up her room in times of wet weather.  By Hong Kong’s living condition, the room was adequately furnished.  The sleeping arrangement was decent and with sufficient privacy.  The Board found such arrangement not unreasonable; and

(2)  The defendant had suggested three alternative sleeping arrangements but the claimant turned down all of them on the ground of lack of privacy and that the baby would disturb her sleep.  The Board found the alternatives proposed by the defendant to be reasonable in view of the fact that the flat only had two bedrooms and that similar arrangement, ie sharing room with child/adult of same sex was one of the viable options allowed under the Schedule to the employment contract.

Discussion

10.  It is trite law that the fact-finding process is very much a function for the Board.  Provided the Board has not erred in applying the relevant legal principles, nor acted against the weight of the totality of the evidence, the conclusion it reached cannot amount to a question of law.

11.  In my view, it is well within the Board’s power to make the findings set out in paragraph 9(1) and (2) above.  Paragraph 9(1) and (2) above are thus not questions of law within the meaning of section 31(1), Cap 453.

Conclusion

12.  There being no valid question of law to be considered by the Court of First Instance, this application is refused.