MALLORCA JOENALYN DOMINGO v. NG MEI SHUEN

HCLA 17/2019

[2020] HKCFI 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 17 OF 2019

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 3464 OF 2016)

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D E C I S I O N
(Leave to Appeal)

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Introduction

1.  This Court had previously on 26 July 2018 handed down a judgment under HCLA 8/2017, [2018] HKCFI 1642, allowing the then appeal by the Claimant (“C”) against a decision of Tribunal dismissing C’s applications to transfer the proceedings to the Technology Court for C’s evidence to be given through video conferencing facilities  and to have an office bearer of a registered trade union to represent her in the proceedings, and thus C’s unsettled claims herein were struck out[1].  In the judgment, this Court allowed C’s appeal and directed that both C’s applications be remitted to the Tribunal to be heard before another presiding officer in the restored proceedings.

2.  Subsequently, by an order dated 19 February 2019, the Tribunal ordered, amongst other things, that the evidence of the trial be taken by way of television link and further allowed C to be represented by the Secretary of the Hong Kong Federation of Asian Domestic Helpers[2].

3.  The trial then took place in September 2019 before Ms Ho Wai Yang, Acting Principal Presiding Officer (“Presiding Officer”).   On 23 September 2019, the Presiding Officer dismissed C’s claim for wages in lieu of notice, annual leave pay and damages for breach of trust on the grounds that the defendant (“D”) had proved on a balance of probabilities that C’s conduct in hurting D’s daughter (“Hurting Allegation”) justified summary dismissal, awarding interest on the contractual entitlements payable to C from the date of award, and awarding no costs to C (“Decision”). The Presiding Officer handed down the reasons for its decision on 30 October 2019 (“Reasons”).

4.  C now applies for leave to appeal against the Decision.  The application for leave to appeal was set down for a hearing on 26 March 2020, but due to the Coronavirus, and with agreement of C, this Court directed that the application be dealt with on paper.  

5.  Ms Kareena Teh, Solicitor Advocate, represented C in making the submissions on paper.

C’s intended grounds of appeal

6.  The intended grounds of appeal have been summarised by Ms Teh as follows:

(i)  In finding that D had proved on a balance of probabilities the Hurting Allegation justifying C’s summary dismissal, the Presiding Officer erred in law by failing to have regard to and/or apply the correct burden and standard of proof and the correct test for assessing the credibility of the evidence, failed to have regard to relevant factors, had regard to irrelevant factors and arrived at a perverse and irrational finding (Grounds 1.1-1.5);

(ii)  In rejecting C’s alternative case that D waived her right to dismiss her summarily for serious misconduct (“Waiver Alternative Case”), the Presiding Officer erred in law by failing to have regard to and/or apply legal principles relating to waiver, construction and/or enforceability of contracts, and non est factum, and failed to have regard to relevant factors, and had regard to irrelevant factors and arrived at a perverse and irrational finding (Grounds 2.1-2.3);

(iii)  By the above errors of law, the Presiding Officer erred in law in rejecting C’s claims for one month’s wage in lieu of notice, pro rata annual leave (Ground 4), C’s claim for damages for breach of trust (Ground 5); and C’s claim for costs (Ground 6);

(iv)  The Presiding Officer erred in law in failing to award interest on C’s successful claims from the date when the cause of action arose (Ground 3).

Grounds 1.1 – 1.5

7.  It was stated in paragraph 38 of the Reasons by the Presiding Officer of the Hurting Allegation that “I do not accept there is recent fabrication as it can be seen the witness statements submitted had already covered the same in the  defendant’s witness statement as early as 31 October 2016 and in the daughter’s witness statement dated 2 November 2018”[3].

8.  As seen in the Chronology submitted by Ms Teh on behalf of C, D made her 1^st  statement  on 31 October 2016 (“D’s 1^st Statement”)[4] and her 2^nd statement on 4 November 2018 (“D’s 2^nd Statement”)[5].  There was a witness statement from one Ho Wing Kei (“Ho”) dated 30 October 2018[6] (“Ho’s Statement”)  and  a witness statement  of D’s daughter dated 2 November 2018[7] (“Daughter’s Statement”), both of which were filed in support of D’s case.

9.  There was no mention at all in D’s 1^st Statement of the Hurting Allegation.  The first time that the Hurting Allegation appeared to have been made would appear to be in Ho’s Statement, which was filed at end of October 2018.  Thus, what the Presiding Officer said about the Hurting Allegation was already covered in D’s witness statement as early as 31 October 2016 appeared to be incorrect.

10.  As submitted on C’s behalf, according to D’s evidence, the incidents of the Hurting Allegation allegedly occurred on 1 or 2 September 2016.  The daughter’s evidence was that she had gone to see the Government doctor twice and private doctor once[8]. There was however no medical evidence produced by D.  When D was asked by the Presiding Officer over this, D only said they went to a private doctor and that her daughter was given some medication.  When D was asked to speak louder, D then said the doctor they went to was downstairs but the doctor unfortunately moved[9]. D then went on to say had [the doctor] not moved, she would definitely ask for a doctor’s certificate or any kind of proof[10]. However, there seemed to be no explanation from D as to why a medical certificate from the Government doctors could not have been obtained.  Ms Teh submitted that there were also other inconsistencies between D’s evidence and her daughter’s evidence.

11.  Suffice to say, the daughter was only about 7 years at the time of the alleged incidents in 2016 and about 9 years old in 2018 when she gave her witness statement, as she was said to be 10 years old when she gave oral evidence before the Presiding Officer in September 2019. There was no report to the police by D at the time of the alleged incidents which the daughter said she had reported to D, there was no summary dismissal of C’s employment, and as mentioned earlier, the Hurting Allegation was made by D about 2 years after the alleged incidents and after C had lodged her claims herein.  As also mentioned, there was no supporting medical evidence. Further, Ho’s evidence is hearsay. 

12.  The Hurting Allegation was a serious allegation, and the burden of proof was on D to prove the allegation.  Having considered Ms Teh’s submissions, I am of the view that Grounds 1.1-1.5 are arguable.

Grounds 2.1 – 2.3 

13.  There was no dispute that C’s employment was terminated on 22 September 2016 without payment in lieu of notice.

14.  The Presiding Officer seemed to be of the view that C had raised inconsistent claims in relation to her dismissal and raised the Waiver Alternative Case late[11]. As I see it, C’s claim has always been that she was wrongfully dismissed, ie terminated without notice, without payment in lieu of notice and without proper grounds for immediate dismissal. At present, I do not quite understand the Presiding Officer’s reasoning as to C’s inconsistent claims.

15.  Insofar as the Waiver Alternative Case was concerned, there was also no dispute that D signed two documents on 22 September 2016:

(i)  In one document, D’s name was written out and C’s name was written out with the contract number and the words “terms of agreement” were written, and it stated that D was going to compensate C and that D terminated C’s contract with the month of payment one year advance and she was going to get C an air ticket to get back home.  This document was signed by both C and D (“Settlement Agreement” )[12];

(ii)  The other document was signed by D only and stated that she employed C as a domestic helper from 9 June 2016 to 22 September 2016 and that D released C due to her financial problem, and that during her work with D in her house, C was good and C had a good performance (“Letter of Reference”)[13].

16.  In the Reasons, the Presiding Officer came to the view that there was no enforceable settlement agreement reached on payment of one month’s wages as submitted by C,  referring to C’s own evidence and that the terms of the Settlement Agreement were ambiguous as to what compensation D was supposed to make to C, the amount of the compensation and when payment was to be made[14].

17.  As said earlier, there was no dispute that D had signed the Settlement Agreement and the Letter of Reference.  Although the Presiding Officer stated that there was doubt as to whether D truly understood the contents of the 2 documents and whether the police were able to translate the contents to D properly, there seemed to be no clear finding by the Presiding Officer as to whether she accepted D’s evidence that she did not know what was written in the 2 documents, ie non est factum or not.

18.  Anyway, the Presiding Officer had found that it was evident that the parties had not come to any concrete agreement on compensation at the time.  This is correct since no amount of compensation was stated in the Statement Agreement.  Then, after dealing with C’s account of events, the Presiding Officer then said taken at its highest, the purported Settlement Agreement was only a letter setting out what D intended to do, but even then it was not entirely clear what D had promised to do.  She then said the terms were ambiguous and unclear on the parties’ respective obligations[15].

19.  The Presiding Officer then went on to reject C’s reliance on the Settlement Agreement to establish any waiver, and said waiver must be unequivocal and that she did not find that D had unequivocally waived her right to summarily dismiss C.

20.  As seen in paragraphs 63-80 of Ko Hon Yue v Chiu Pik Yuk [2017] 5 HKLRD 510, an employer may be regarded as having waived the right to summarily dismiss the employee, if she has elected to terminate the contract with payment in lieu of notice instead.

21.  As said earlier, the Presiding Officer had said, that taken at its highest, the purported Settlement Agreement was only a letter setting out what D intended to do, but even then, it was not entirely clear what D promised to do[16]. However, it seemed that having said this, the Presiding Officer did not then go on to consider or make any finding as to whether an expression of intention to compensate C could constitute wavier of D’s right to summary dismissal. 

22.  Having considered the above, I have come to the view that Grounds 2.1 -2.3 are also arguable.

Ground 3

23.  Ms Teh submitted that C was successful in her claims for her contractual entitlements of food and travelling allowance and air ticket totalling HK$970, but the Presiding Officer only awarded interest on HK$970 to be calculated from date of award until full payment in paragraph 63 in the Reasons.  The award of interest was said to be made under s 39(3) of the Labour Tribunal Ordinance.

24.  Ms Teh criticized the Presiding Officer for not having given an reasons/explanations why she only awarded interest from the date of award.  However, there was no claim by C in the Amended Claim Form (Form 2) for pre-judgment interest[17]. Further, insofar as I can see, there were no submissions made in C’s Closing Submissions for pre-judgment interest before the Presiding Officer.  I do not find this ground is arguable.  

Ground 4

25.  In my view, Ground 4 will depend on whether C succeeds on Grounds 1 and/or 2.

Ground 5

26.  This is a claim under Item F of C’s Amended Claim Form, for damages for breach of trust in the sum of HK$80,107.56.  It would appear that the Presiding Officer simply dismissed C’s claim under this head and no reasons were given.  I am of the view that Ground 5 is also arguable. 

Ground 6

27.  The claim for costs will depend on whether the appeal is successful.

Conclusion

28.  For the above reasons, I am of the view that C has arguable grounds for an appeal.  I grant leave to appeal on the Grounds, save for Ground 3.