RUIZ BERNARDITA M. v. XIAO YOU

1997 L.T.A. No. 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This is an appeal against the decision of the Presiding Officer dismissing the Claimant, Bernardita Ruiz's claim for wages in lieu of notice and medical expenses except a small sum of $463.25.

2. The Claimant was employed by the Respondent Ms. Xiao You as a domestic helper as a monthly salary of $4,750.

3. The Claimant took leave to return to the Philippines between 27th December 1996 and 2nd January 1997. She did not return to Hong Kong until 18th February 1997. There was do direct contact between the Claimant and the Respondent after her return to Hong Kong until 8th June 1997.

4. It was not disputed that the Claimant had a traffic accident in late December 1996 as a result of which she was quite seriously injured. She was admitted into hospital twice between 31st December 196 and 5th January 1997 and on the 11th and 12th of January 1997.

5. After the accident, the Claimant did not get in touch with the Respondent directly. Instead she did it through a Mr. Wong who was the relative of the Claimant's previous employer. In fact Mr. Wong also knew the Respondent through a mutual friend.

6. As a result of the inquiries made by the Respondent, Mr. Wong told her that the Claimant would return to Hong Kong on 17th February 1997. When the Claimant failed to show up, the Respondent wrote to the Director of the Immigration Department on 20th February 1997, asking for the termination of the contract of employment with the Claimant.

7. The first issue for the Presiding Officer to decide was whether the summary dismissal was justified.

8. The Presiding Officer accepted that the Claimant was injured. She also accepted that the Respondent should wait for the return of the Claimant on 17th February 1997. However she took the view that when the Claimant was unable to resume work then, she should at least get in touch with the Respondent to explain to her the situation and ask for leave. The Claimant did not do it and chose to be completely in-accessible for another three months.

9. The Presiding Officer concluded that the conduct on the part of the Claimant justified summary dismissal.

10. To some extent, I do have sympathy for the Claimant. She was quite seriously injured in a traffic accident. She clearly was unable to resume work even though she was able to return to Hong Kong on 18th February 1997. But should she not have contact directly with the Respondent to inform her of the situation?

11. Originally she should return to Hong Kong on 2nd January 1997 and she did not. She did not try to contact the Respondent directly by telephone or by letter when she was aware of both the address and telephone number of the Respondent. For no apparent reasons, she chose to go through a third party, Mr. Wong.

12. Even after her return on the 18th of February 1997, she made no successful attempt to get in touch with the Respondent until 8th of June 1997.

13. I accept the Presiding Officer's findings that the Claimant had the duty to contact the Respondent and to seek leave for not being able to resume work because of her injuries and it was not the Respondent's duty to try to get in touch with the Claimant in the circumstances of the case.

14. The Presiding Officer was also right to take into consideration that the Respondent has three young children to take care of and she was rightly concern when the Claimant did not return either on 2nd January or 17th February 1997 as she had promised. Although the Respondent had heard of the accident to the Claimant through a third party, Mr. Wong, the Claimant had never got in touch with her directly until 8th June 1997.

15. The Respondent could not be expected to wait for the Claimant for an indefinite period of time, particularly when there was an earlier incident when the Claimant only return to the Respondent's home one week after her return to Hong Kong and the Respondent had no knowledge of her whereabouts at all.

16. Section 9 of the Employment Ordinance empower an employer to dismiss an employee without notice or payment in lieu if an employee misconducts himself such conduct being inconsistent with the due and faithful discharge of his duties or on any other ground on which he would be entitled to terminate the contract without notice at common law.

17. On the facts as found by the Presiding Officer, I am also satisfied that the Claimant had misconducted herself such conduct being inconsistent with the due and faithful discharge of her duties and that the Respondent was also entitled to terminate the contract without notice at common law.

18. On the question of the summary dismissal of the Claimant, the Presiding Officer came to a correct decision.

19. As for the medical expenses, there was no dispute that the Respondent was liable to pay for the medical expenses incurred by the Claimant. The only issue was whether the Claimant could prove such expenses.

20. The Claimant said she had incurred a total of $12,188.85 as medical expenses both in the Philippines and in Hong Kong. In support such claim, she had produced a number of documents including 2 bills issued by the Mercado General Hospital Inc for 21,358 pesos, about 30 documents issued by the same hospital most of which were described as sales invoice and some were described as receipt totalling over 4,000 pesos.

21. There was also a receipt for consultation fee for 8,700 pesos. There were also some receipts issued by Parklane Medical Practice for $500 and by the Hospital Authority for $88. Some of the documents issued in the Philippines were addressed to the Claimant and some were addressed to "C".

22. The Claimant said sometimes it was her family members who paid the fees for her.

23. On the medical expenses, the Presiding Officer said the following:

"I have held that the termination date was 20th February 1997. The Defendant (Respondent) should not be responsible for any medical expenses incurred after that date. As for the others, I am puzzled by some of them. The hospital in the Philippics obviously had something called "official receipts". If Claimant or her family members had really paid the amounts charged by the hospital, they should have issued receipts instead of just the sales invoices. As to the unidentified documents, I cannot even be sure what was stated on it and that the figures thereon represented amount paid. As to the hospital bills, there is nothing to show that they had been settled. I cannot just accept Claimant's word that she could not be released from the hospital without settling those bills. I am prepared to give the term "registered medical practitioner" in Clause 9(a) a wide interpretation to cover those in the Philippines. I accept that there might be some difficulties for Claimant to call the doctor and I may rely on medical receipts though strictly speaking they are hearsay in the present case. However, the best I can do is to act on the documents I find reliable. I am only prepared to award medical expenses to Claimant on items (i) and (v) in ...... I do not know what the consultation fee of 8,700 pesos was for. I am not satisfied with the explanation of Claimant. In fact Claimant herself was not clear as to the nature of that. I am not satisfied that it was for medical treatment while she was incapacitated. The total amount is 1,853 pesos. Adopting the agreed exchange rate of HK$1 to 4 pesos, the total award for (d)(medical expenses) is $463.25. I dismiss the balance for item (d)."

24. It may not be due to any fault on the part of the Claimant as sometimes it is common for doctor to write in a way which is quite illegible, I share the concern of the Presiding Officer about some of the documents produced by the Claimant. Nevertheless, in my view the Presiding Officer had adopted a very harsh approach towards the claim for medical expenses by the Claimant.

25. The matter must be considered in the light of the undisputed facts that the Claimant was seriously injured and she had been admitted into hospital in the Philippines for treatment. The Claimant had also produced photographs to show that there had been very serious injuries to her ankles.

26. I do not agree with the view expressed by the Presiding Officer that the Respondent should not be responsible for any medical expenses incurred after the termination of the contract of employment, namely 20th February 1997. The important date was the date of the injuries and whether the medical expenses were incurred in respect of injuries to the Claimant before the termination of the employment.

27. The contract of employment stipulates that the Employer shall provide free medical treatment to the Helper while she is incapacitated. The contract did not state that the Respondent should only be paid on an reimbursement basis. The question should be whether the expenses had been incurred and not whether they had been paid.

28. At the commencement of the appeal, the Claimant with the leave of the court produced a certificate issued by Dr. Edwin M. Mercado, an Orthopaedic Surgeon of the Mercado General Hospital to the effect that the Claimant sustained injuries in a motorcycle accident on 31st December 1996 and had to be admitted to the hospital on that day and again on 11th January 1997. The certificate detailed the treatment received by the Claimant and confirmed that a total sum of 36,804.95 pesos had been incurred and had been paid by the Claimant.

29. I appreciate that such certificate was not before the Presiding Officer or else she might not have come to the decision as she did.

30. In my view, the Claimant should be awarded the medical expenses set out in the certificate issued by the Mercado General Hospital plus the further medical expenses incurred in Hong Kong if such expenses were properly documented. In my view the sum of $588 was properly proved.

31. Adopting the agreed exchanged rate of HK$1 to 4 pesos, the total medical expenses awarded to the Claimant should be 36,804.95 x 1/4 + $588. a total sum of $9,789.

32. In the circumstances, the appeal by the Claimant must be allowed. The order of the Presiding Officer is set aside. There will be judgment for the Claimant against the Respondent in the sum of $9,789 and interest thereon at the rate of 10 % per annum from the filing of the claim, namely 30th July 1997. The Respondent of course is also obliged to supply to the Claimant an air ticket from Hong Kong to Manila.

33. I make no order as to cost.

(Wally Yeung)

Judge of the Court of First Instance