MERCIALES, SALLY C. v. WONG TANG TAT

1996, No. 105

IN THE SUPREME COURT OF HONG KONG

LABOUR TRIBUNAL APPEAL

(CLAIM NO. E6002/95)

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REASONS FOR DECISION

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1. These are my reasons for dismissing the Appellant's appeal earlier on 21 February 1997.

2. The appeal is against the decision of the Labour Tribunal in dismissing the Appellant's claim against the Respondent for severance pay and 15 days' wage in lieu of notice of termination of employment. The Appellant was employed by the Respondent as a domestic helper from 3 February 1991 to 15 October 1995 and the amounts claimed were respectively $11,927.80 for severance pay and $1,875 for wages in lieu of notice.

3. On 15 September 1995 the Defendant's wife orally dismissed the Appellant with one month's notice to expire on 15 November. Between 1 and 31 October the Claimant worked for the household of the sister of the Defendant's wife at the request of the wife. The reason for this arrangement was because the sister's domestic helper, who happened to be the Claimant's daughter, had not arrived Hong Kong in time to take up her duties.

The claim for severance pay

4. Claim for severance pay is governed by section 31B(1)(a) of the Employment Ordinance, Cap.57. An employee who has been dismissed by reason of redundancy is entitled to severance payments. Further the Ordinance provides that if the dismissal is attributable wholly or mainly to the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished, then the dismissal is deemed to be by reason of riddance. This provision applies to an employee who is employed as a domestic servant by virtue of section 31B(3).

5. At the hearing the learned Presiding Officer held that the Respondent was able to rebut the statutory presumption and found that the dismissal of the Appellant was not by way of redundancy and therefore she was not entitled to severance pay.

6. Section 31Q of the Ordinance further provides that an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been dismissed by reason of redundancy.

7. The Appellant contends that the finding of the Tribunal is contrary to the weight of the evidence and the Presiding Officer had erred in law in failing to treat the contents of a letter of release dated 15 October 1995 as a written admission by the Respondent that the household work for which the Appellant was employed had ceased or diminished. The wording of the letter in question is :

" This is to be known that Sally C. Merciales had been employed by me since Feb. 3, 1991. She took good care of my 2 children who goes to school now the whole day. I don't need a helper anymore that's why I discontinue her contract with me..."

The Appellant submitted that the learned Presiding Officer failed to deal with the effect of this letter in her Reasons for Decision.

8. This is not a case where the Officer had failed to deal with the letter at all. In fact at paragraph 2 of her Reasons the learned Officer had referred to the letter in question as one of the undisputed facts of this case. It follows that she must have those facts, including the contents of the letter in her mind when she evaluated the evidence before her. Had there been no other evidence before the Tribunal apart from the letter, I have no doubt that she would have found for the Claimant based on the contents of the letter. But the evidence before the Tribunal was that the Respondent's household had the need to, and did in fact, engaged a Chinese amah after the Appellant had left.

9. In coming to her conclusions the learned Presiding Officer made a painstaking comparison of the duties of the Appellant and the Chinese amah and she found that there were eight items in the Appellant's work schedule which the Chinese amah did not have to perform. She arrived at this conclusion :

"However, comparing the substantial similarity of other work which the amah had to do, that was just 'de minimis' deviation from the usual duties of the Claimant."

Later at paragraph 18 she said :

"Considering all the evidence as a whole, I found that there had been no cessation or diminution in the requirements of the Defendant's household for an employee to carry out the duties usually done by the Claimant. What the Defendant and his wife said to Claimant upon termination, what was stated in the release letter and the request to Claimant to help sister were consistent with the intention of the Defendant and his wife to end the relationship amicably rather than to dismiss the Claimant for redundancy."

She went on to find that the Respondent had rebutted the statutory presumption on a balance of probabilities.

10. The Respondent had behaved in a manner which was befitting of any employer in terminating the Appellant's employment in an amicable manner. It would have been surprising to see a reference letter addressed to prospective employers of the Appellant stating bluntly the reasons for the Appellant's termination was because she was lazy and was not discharging her duties properly. Such a letter would have extinguished the Appellant's chance of seeking alternative employment in Hong Kong. Despite the Appellant's argument that the letter amounted to an admission in law, the learned Presiding Officer had quite correctly viewed the contents of the letter in the proper perspective and come to the conclusion as she did. I do not think that her findings could be faulted in any way.

11. As to the Appellant's claim for payment of notice, the grounds of appeal advanced were that the learned Presiding Officer erred in law in holding that the parties had discharged each other by consent and that the Appellant had waived her entitlement to payment in lieu of notice.

12. There was undisputed evidence before the Tribunal that the Appellant did work for the sister's household before her daughter's arrival in Hong Kong. The Appellant had done so for higher wages. The learned Presiding Officer found that this was not a case of constructive dismissal because the Appellant had willingly accepted the alternative employment for higher wages and she had not exercised her right to terminate her employment. It was an arrangement that both parties were happy to accept. This was the basis upon which the learned Presiding Officer found that the contract between the Appellant and the Respondent was discharged by consent and it was not open to the Appellant to claim payment in lieu of notice. Again the learned Presiding Officer was entitled to come to her conclusion as she did on the strength of the evidence and I can see no merits in this ground of appeal.

13. For the reasons given above this appeal is dismissed with costs.

14. The Appellant's own cost is to be taxed in accordance with Legal Aid Regulations.