MEISYANA KRISTIANI v. LAM KWAN FEI

HCME 1/2019

[2019] HKCFI 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO 1 OF 2019

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS
ADJUDICATION BOARD APPEAL NO MB 44 OF 2019)

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D E C I S I O N

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The application for leave

1.  This is the claimant’s (applicant) application pursuant to section 31 of the Minor Employment Claims Adjudication Board Ordinance, Cap 453 (the “Ordinance”) for leave to appeal against the Decision of the Minor Employment Claims Adjudication Board dated 13 February 2019 (the “Decision”) dismissing her claim against her ex-employer (“Lam”). Although the Reasons for Decision (“Reasons”) given by the Board is in Chinese, the Form 13 filed by the applicant for the present application is in English.  Further, the hearing of this application is upon the choice of the applicant conducted in English with the assistance of an Indonesian/English interpreter.  In the circumstances, I have decided to deliver my decision in English.

Background facts

2.  The applicant was from Indonesia.  She used to be employed as a foreign domestic helper by Lam.  The contract of employment (the “Employment Contract”) was made on 1 February 2018.  The monthly salary was HK$4,410.  The terms were standard.  I reproduce the following clauses for ease of reference:

“ 7. (a) The Employer shall provide the Helper with free passage from his/her* place of origin to Hong Kong and on termination or expiry of this contract, free return passage to his/her* place of origin.

(b) A daily food and travelling allowance of HK$100 per day shall be paid to the Helper from the date of his/her* departure from his/her* place of origin until the date of his/her* arrival at Hong Kong if the travelling is by the most direct route. The same payment shall be made when the Helper returns to his/her* place of origin upon expiry or termination of this contract.

…

10. Either party may terminate this contract by giving one month’s notice in writing or one month’s wages in lieu of notice.

11. Notwithstanding Clause 10, either party may in writing terminate this contract without notice or payment in lieu in the circumstances permitted by the Employment Ordinance, Chapter 57.

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*   Delete where inappropriate.   ”

3.  The employment commenced on 21 May 2018.

4.  On 16 December 2018, the applicant submitted to Lam a standard Notice of Termination of Employment Contract with Foreign Domestic Helper (“Notice of Termination”) dated the same.  The contract termination date stated thereon was 15 January 2019.  The reason for termination was stated to be “Helper personal reason.”

5.  Despite that Notice of Termination and the contract termination date stated thereon, the employment was subsequently terminated on 25 December 2018.  The parties’ cases differed as to why that was so.  The applicant claimed that she was dismissed by Lam on that day.  Lam’s evidence however was that on that day, she told the applicant that she could allow the applicant to leave her employment that day, but that she would only pay her salaries up to then (ie 25 December 2018). Lam said that the applicant agreed to that by saying “OK”.  Salaries up to 25 December 2018, annual leave, and allowance under clauses 7(a) and 7(b) in the sum of HK$2,000 were paid.  A receipt was signed (the “Receipt”).  On the Receipt it was said that the applicant “resign my job as personal reason at the date 25 December 2018”.   

6.  In respect of that sum of HK$2,000, there was no dispute that immediately after payment, the applicant returned HK$1,000 to Lam.  The reason was that the applicant did not intend to return to Indonesia after the termination, but would only go to Macau before starting her new job in Hong Kong.  The applicant did so voluntarily.

7.  On 18 January 2019, the applicant filed her claim against Lam.  Her claim was for (1) 20 days of payment in lieu of notice, and (2) one day of travelling allowance in the sum of HK$100.  In respect of (1), the basis of her claim was that as she was dismissed with immediate effect on 25 December 2018, she became entitled to payment in lieu of notice covering the period up to 15 January 2019. In respect of (2), the applicant said after her return of the sum of HK$1,000 (out of the HK$2,000) to Lam, the balance somehow did not cover any travelling allowance payable under clause 7(b) of the Employment Contract.

8.  Having heard evidence and after trial, the Board dismissed the applicant’s claim.  The Board did not find the applicant to be an honest witness[1].  The Board observed[2]that throughout the entire trial, the applicant had never indicated that she had been forced by Lam to sign the Notice of Termination or the Receipt; nor did the evidence adduced suggest that the applicant had been forced to agree to an earlier termination of her employment. The Board accepted instead Lam’s evidence. 

9.  Specifically in respect of the applicant’s claim for payment in lieu of notice, the Board found on the evidence that the termination had been consented to by both the applicant and Lam[3]. Such mode of termination was permissible under section 8(a) of the Employment Ordinance[4]. Lam was not liable to pay any payment in lieu of notice. 

10.  In relation to the applicant’s claim for travelling allowance, the Board, relying on Lorenzo Buenavilla v Lam Yau Man HCLA 8/2013 (8 July 2013), held that as she did not go back to her place of origin, she had no claim under clause 7(b)[5].

11.  The Board found that on 25 December 2018, the applicant had received all payments which she was entitled to[6].

12.  On 18 February 2019, the applicant filed her Form 13. The grounds she seeks to rely on are:

“ 1.   Required wages according to the government issued contract remain unpaid

2.   The travel reimbursement paid is below market standart [sic]

3.   My boss force me to sign release letter for early dismissal againt [sic] my will without compensation”

Appeal only permissible on points of law

13.  Section 31 of the Ordinance stipulates that leave to appeal may only be granted:

“(a)  on any ground involving a question of law alone; or

(b)  on the ground that the claim was outside the jurisdiction of the Board”.

14.  The jurisdiction of the Court of First Instance is further limited by section 32(2) of the Ordinance, that:

“   On an appeal for which it has granted leave under section 31,the Court of First Instance may—

(a)  draw any inference of fact; and

b)  make such order as to costs and expenses as it may think fit,

but may not—

(i)  reverse or vary any determination made by the Board on questions of fact; or

(ii)  receive further evidence.”

The hearing

15.  During the hearing, I explained to the applicant the effects of sections 31 and 32(2) of the Ordinance.  I then read out in court for the applicant’s reference her grounds on the Form 13.

16.  The applicant made submissions to me through an interpreter. She primarily simply asserted and repeated that Lam had failed to pay her sufficient payment in lieu of notice.  She also repeated that Lam did not pay the travel allowance.  She said that Lam calculated the payment in her own way without any input from her agent.  She said that Lam had played tricks on her.  She said that the money she was seeking was a large sum for her.    

Discussion

17.  The Board has rejected the applicant’s evidence.  She has been found not to be an honest witness.  Lam’s evidence has been accepted instead.  On the evidence, the Board found that the earlier termination was with the consent of both parties, and the applicant had received all she was entitled to.  These are all findings of fact.  Paragraph 1 of the applicant’s Form 13 discloses no point of law.

18.  Whether the travel reimbursement was, as suggested by the applicant at paragraph 2 of her Form 13, below market standard is completelyirrelevant.  Paragraph 2 of the applicant’s Form 13 discloses no point of law.

19.  Paragraph 3 of the applicant’s Form 13 is entirely factual.  As I have set out above, the Board has in any event observed that throughout the entire trial, the applicant had never indicated that she had been forced by Lam to sign the Notice of Termination or the Receipt, and that the evidence adduced did not suggest that the applicant had been forced to agree to an earlier termination of her employment.  No additional evidence can be received.  No point of law is involved.  Paragraph 3 is without basis.

20.  The applicant has failed to raise any permissible basis upon which leave may be granted.

Disposition

21.  For the reasons set out above, the applicant’s application is dismissed.

22.  I make no order as to costs.