XCHRX CASTRO, LYLE DARYNE PANIS v. HONG EUN YEUNG, TERESA

HCLA 10/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 10 OF 2000

(On appeal from Labour Tribunal Claim No. LBTC 11063 of 1999)

____________

_______________

D E C I S I O N

_______________

1. This is an application by the Claimant for leave to appeal against an order made by a Presiding Officer of the Labour Tribunal on 6 January 2000 granting leave to the Claimant to withdraw all her claims and with no order as to costs. At the conclusion of the hearing, I dismissed the application and gave brief oral reasons for my decision. I now reduce the reasons into writing.

Background

2. The Claimant was employed by the Defendant under a foreign domestic helper contract ("the Contract"). The Claimant claimed that she commenced working for the Defendant on 19 July 1999. The Claimant was dismissed by the Defendant with immediate effect on 21 October 1999.

3. The Claimant claimed that the Defendant was liable to pay her 1 month wages in lieu of notice, wages in arrears, annual pay leave, damages on loss of earnings, food and travelling expenses and allowance.

4. The Defendant's case is that the Claimant was summarily dismissed for misconduct, and that the parties had reached a full and final settlement in the Labour Department.

5. The parties first came before the Labour Tribunal on 6 January 2000 during which the Presiding Officer referred to the settlement reached in the Labour Department and the receipts signed by the Claimant. It was explained to the parties that before the settlement agreement was set aside, the Labour Tribunal could not entertain any claim involving the parties and arising out of the same dispute. The Presiding Officer pointed out to the Claimant that the power to set aside a settlement agreement and the power to award damages for loss of earnings lie outside the jurisdiction of the Labour Tribunal. Eventually, after some attempts at negotiations by the parties, the Claimant indicated that she was prepared to withdraw her claim for damages for loss of earnings, thereby bringing her claim to under $8,000.00. The Presiding Officer then informed her that because of the reduced amount, the claim fell within the jurisdiction of the Minor Employment Claims Adjudication Board ("MECAB"). The Presiding Officer further told the Claimant that after she had successfully set aside the settlement agreement, she could then file a claim in MECAB. Thereafter, the Claimant signed a withdrawal form withdrawing her claim in the Labour Tribunal. The Presiding Officer accordingly made the order granting leave for the claim to be withdrawn.

Grounds of Application for Leave to Appeal

6. In the written Application for Leave to Appeal, the Claimant relied on the ground that the order is erroneous in point of law. It was stated that the Presiding Officer granted leave to withdraw the claim when the Claimant did not apply for such leave. The Claimant also stated that she would rely on such other grounds as may appear from the notes of proceedings for which she had applied for to the Tribunal.

7. At the hearing, the Claimant did not rely on any other new ground. She only indicated that she never wanted to drop her claim against her employer and she wanted to carry on with her claim. She said that she did not know what to do next after the attendance at the Labour Tribunal.

8. According to the Claimant, when she signed the receipts at the Labour Department, she did not know that this was final and conclusive. She thought she was merely acknowledging receipt of a payment from the Defendant in respect of $300 which the Defendant had over-deducted from her salary as compensation for damages to a washing machine.

Reasons for Refusal of Leave

9. In an application for leave to appeal, the Appellant has to show that the appeal involves a point or points of law which is or are arguable.

10. There can be no doubt that the Claimant's appeal has no arguable ground, let alone any arguable point of the law. The Presiding Officer's view of the lack of jurisdiction on the Tribunal's part to set aside the settlement agreement cannot be faulted. It follows that his order granting the Claimant leave to withdraw her claim cannot be said to be erroneous. Had the Claimant not signed the withdrawal form, it will be open to the Presiding Officer to order a transfer of the entire claim to the District Court for disposal. This course would have been more time and costs saving. In any case, it is still open to the Claimant, after withdrawing her claim in the Tribunal, to institute a fresh claim in the District Court seeking an order to set aside the settlement agreement and other relief.

11. The Claimant has clearly misunderstood the effect of the order of the Presiding Officer, which is merely procedural. There has yet been no adjudication on the merits of the Claimant's claim against the Defendant. The Claimant is therefore not barred from bringing a new claim solely by reason of her withdrawal.

12. For these reasons, the application for leave to appeal must be dismissed. When dismissing the appeal, I had explained to the Claimant, and I repeat it here so that she will not misunderstand the matter again, that, if she is minded to pursue her claim against the employer, it is for her to either commence an action in the District Court seeking an order to set aside the settlement agreement and other relief, or bring a second claim in the Labour Tribunal seeking these order and relief and requesting for an order transferring the claim to the District Court.