DIVAKARA MOHATTALALAGE NISHAN L P v. WONG YEE

HCLA 15/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 15 OF 2012

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 950 OF 2012)

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D E C I S I O N

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1. This is an application for leave to appeal against the decision of Mr Raymund C W Chow, Deputy Presiding Officer of the Labour Tribunal given in claim no. LBTC 950/2012 on 11 September 2012 with reasons handed down on 25 October 2012.

Grounds of appeal

2. The applicant is the defendant in the claim before the Tribunal.  She was the employer of the claimant. 

3. She has given several grounds of appeal in her application. Her first ground is that the Presiding Officer erred in negating the amount of wages stated in the employment contract and included the bonus and allowance for extra work to calculate compensation.  Her second ground is that the Presiding Officer connived at the foreign domestic helper in using improper means to create this labour dispute which put her completely in a passive and helpless situation and that fortified the improper motive of the helper.  Her third ground is that the Presiding Officer had indulged the helper’s intent to overstay and ordered her to provide one more single trip plane ticket to the helper to suit the helper’s unilateral purpose.  Her fourth ground is that the order which required her to pay the helper 3.5 days pro rata holiday wages was wrongful as the domestic helper had already admitted of having taken holiday from 19 to 21 December 2011.  Her fifth and last ground is that the Presiding Officer had held that the domestic helper had not taken two weeks holiday in advance, but in contradiction ordered her to pay the helper food allowance for that period.

4. At the hearing of the application, the defendant further submitted that the decision of the President Officer was unfair.  The allowance referred to in her first ground was discretionary and she gave it to the claimant on the basis of trust.  There was an element of deception and the Presiding Officer did not handle the matter fairly.  She also submitted that there was no reason for the Presiding Officer to order her to pay for a second plane ticket as she had already bought a ticket for the claimant on 23 December 2011 and had told the claimant that he could change the departure date.

5. She also repeated her complaint against the order requiring her to pay food allowance.  She submitted that if the claimant was not on leave, he could have taken the food from her household and there was no reason for ordering her to pay him food allowance.  Hence, the Presiding Officer was contradictory in holding that the claimant was not on leave but at the same time requiring her to pay him food allowance.

6. She also added that it was wrong for the Presiding Officer to hold on the one hand that the provision for wages in the contract was ineffective but on the other hand that she had failed to perform the terms of the contract.  She therefore did not know where she stood.

7. She thought that she had been deceived, but the Presiding Officer did not understand or confirm this.  She wanted this issued to be adjudicated. 

8. She also repeated her evidence given at the Tribunal that there was an oral agreement that there would be a trying out period of 3 to 5 months, but then the Presiding Officer said that such oral agreement was of no effect.  However, the claimant’s oral assurance of working experience was upheld.

The respective cases at the Tribunal

9. At the Tribunal, it was the claimant’s case that the agreed wages were HK$8,500 per month though he signed the employment contract in blank and left the details to be filled in by the defendant.  He commenced employment on 16 July 2011.  He was paid HK$8,500 for the first two months. But the defendant did not pay him this amount from 16 September 2011 onwards. His employment was terminated on 21 December 2011 with wages in lieu of notice.

10. The defendant told the Tribunal that the claimant’s wages were at HK$3,740 per month.  She however agreed to pay him another sum of HK$4,760 as allowance only for his alleged 8 years experience as a gardener in a German hotel in Sri Lanka and 1 year driving experience in Hong Kong.

11. The defendant further said that the claimant’s performance was poor and he had failed to produce his past employment record. Hence, he should only be paid the basic salary of HK3,740 for his wages in lieu of notice.  The claimant’s poor performance was also the cause for the defendant to have deducted HK$1,500 from his allowance.

12. The defendant also said that the claimant was allowed a 2-week advance annual leave from 10 October to 24 October 2011 when the defendant was out of Hong Kong.  Since the claimant did not work in these 2 weeks, she deducted his salary for this period.

Findings of the Tribunal

13. Regarding the alleged oral agreement between the claimant and the defendant for a 3 to 5 months trying out or probation period, it was not mentioned in the written contract.  The contract was in a standard form provided by the Immigration Department.  Any such term of probation would be a deviation from the standard form.  The Presiding Officer, having considered the evidence, rejected the defendant’s version.  He found as a fact that there was no such oral agreement.

14. Regarding the amount of monthly wages, the claimant was receiving HK$8,500 from his previous employment.  The defendant in her initial statement given to the Tribunal also confirmed that she was willing to pay the claimant an allowance.  She did not mention in the statement that the allowance was subject to review.  Furthermore, allowance is treated as part of wages in section 2 of the Employment Ordinance, Cap 57.  

15. The defendant also alleged that one of the reasons for her to deduct the allowance was because the claimant had failed to provide her with proof of his previous employment.  But she was disbelieved by the President Officer on this allegation as a matter of fact. 

16. The President Officer, after reviewing the evidence, found as a fact that there was no agreement between the claimant and the defendant that the allowance of HK$4,760 per month was subject to the defendant’s review.  He also found as a fact that the claimant’s monthly wages were at HK$8,500 and such was not subject to any right of the defendant to make deduction. 

17. If the claimant’s wages should be at HK$8,500 per month, his wages in lieu of notice should be calculated on the same basis.

18. Regarding the order requiring her to pay wages for 3.5 days pro rata annual leave, she said in the fourth ground of appeal that the claimant had already taken leave from 19 to 21 December 2011.  But she overlooked the fact that the President Officer had already deducted three days of full wages from the claimant’s claim of underpayment of wages to reflect his absence on these three days.  This ground of appeal is therefore without basis.

19. Regarding the alleged two weeks advance annual leave that the defendant alleged that the claimant had taken, the evidence of recorded conversation produced to the Tribunal showed that the defendant had asked the claimant to take no pay leave during this period.  Hence, the defendant had fabricated her evidence of the alleged advance annual leave and had therefore lied to the President Officer.  The President Officer also found as a fact that the claimant had not agreed to take the no pay leave.  Since the claimant could not be forced to take no-pay leave, the defendant was ordered to pay the claimant wages for this period.  As the claimant was on forced no-pay leave during those two weeks, he was also not provided with food by the defendant during that period.

20. Since the President Officer regarded it right that the defendant should pay back the claimant his wages for these two weeks, it was only right that he should also order the defendant to pay the claimant food allowance for the same period.

21. The defendant argued that it was contradictory for the Presiding Officer to firstly hold that the claimant was not on no pay leave and then to order her to pay the claimant food allowance for the same period.  She submitted that if the claimant was not on leave, he could have consumed the food available at her premises. 

22. This argument is without merit and unreasonable.  The Presiding Officer did not decide that the claimant was not on leave.  The Presiding Officer decided as a matter of fact that the claimant had two weeks no pay leave wrongfully imposed on him by the defendant.  Hence, the defendant should pay the claimant for the loss of wages during this period.  The defendant cannot twist the finding of the Presiding Officer and then seek leave to appeal on the basis of the twisted finding.

23. Finally on the plane ticket, the defendant terminated the claimant’s employment purportedly with wages in lieu of notice on 21 December 2011 and then procured a plane ticket for his journey home to depart on 25 December 2011.  Eventually, the ticket was extended to 30 September 2012.  Since the claimant had legitimate claims against the defendant, the Presiding Officer regarded it right for him not to use the ticket on 25 December 2011.

24. Though the ticket would only expire on 30 September 2012, the claim in the Tribunal was only concluded on 11 September 2012 and the parties’ right of appeal would not be exhausted so soon.  The parties also had on-going litigation at the Small Claims Tribunal.  The Presiding Officer therefore rightly took the view that the plane ticket provided by the defendant did not have a long enough expiration date and ordered her to pay the claimant a sum of money for another ticket to be purchased by the claimant.  I see nothing wrong in this.

25. From the above, it is clear that the defendant’s grounds of appeal are basically directed at the Presiding Officer’s findings of fact.  I would therefore refer to section 32(1) of the Labour Tribunal Ordinance, Cap 25 which provides:

“(1) If any party is dissatisfied with an award, order or determination by the tribunal on the grounds that the award, order or determination is-

(a) erroneous in point of law; or

(b) …

such party may, within 7 days after the date on which the award, order or determination was served on him, or within such extended time as may be allowed by the Registrar of the High Court on good cause, apply to the Court of First Instance for leave to appeal and the Court of First Instance may grant such leave.”

Decision

26. Since the attacks by the defendant on the judgment of the Presiding Officer are not based on points of law, the defendant cannot be granted leave to appeal.  I therefore dismiss her application for leave to appeal.

27. I would also mention that the defendant in her application had repeatedly hinted that she had been deceived by the claimant. But the evidence only shows that she had been inconsistent in her case and had lied to the Tribunal.  I do not think she had been deceived by the claimant at all.

28. The defendant at some stage had sent the claimant to live at her guesthouse.  The claim at the Tribunal also involved matters like the defendant requiring the claimant to collect rent and utility charges from the defendant’s tenants to off-set wages due from the defendant to the claimant and the defendant’s attempt to make the claimant pay for a share of the utility charges purportedly attributed to the claimant.  These matters have not been raised on the application for leave to appeal and I do not propose to go into them.  I would only say that the canvassing of these issues by the Presiding Officer has put the defendant in poor light.