TANGSRISAKULTHAI NISACHOL v. LEUNG KAM

[English Translation – 英譯本]

HCME 3/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO. 3 OF 2007

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS ADJUDICATION BOARD CLAIM NO. 504 OF 2007)

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BETWEEN

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Dates of Hearing: 23 August & 10 September 2007

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REASONS FOR JUDGMENT

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1. The Defendant herein applies for leave to appeal against the orders made by an Adjudication Officer of the Minor Employment Claims Adjudication Board on 21 May 2007.

2. The hearing of the application for leave was fixed for 23 August 2007. At the hearing, the Defendant was accompanied by her son who provided her with assistance as necessary. Towards the end of the hearing, upon suggestion of her son, the Defendant sought an adjournment of the hearing so as to enable her to instruct a lawyer and seek legal advice. I therefore adjourned the hearing to 10 September. On 7 September 2007, the Defendant wrote to the Court indicating that she would not attend the hearing on 10 September.

3. On 10 September 2007, in the absence of the Defendant, I dismissed her application for leave. I now set out the reasons for my decision.

Factual background

4. The Claimant was a domestic helper from Thailand. She was employed by the Defendant as from 21 November 2006.

5. Subsequently, the Claimant tendered resignation and left the Defendant’s employ on 15 February 2007.

6. On 28 March 2007, the Claimant instituted proceedings before the Minor Employment Claims Adjudication Board (hereinafter “the Board”), claiming against the Defendant:

(1)   $1,200 being airfare from Hong Kong back to her home country of Thailand; and

(2)   $100 being transportation allowance.

7. On 11 April 2007, the Defendant filed a Defence, putting forward the following grounds of defence:

(1)   As a result of employing the Claimant, the Defendant has paid agent referral fees, government levy and labour insurance premium.

(2)   As the Claimant worked for the Defendant for less than 3 months, it is unreasonable to require the Defendant to pay for the whole of the airfare.

(3)   The Claimant’s reason for resigning was that she had to return to her home country to complete her studies, but this was something that the Claimant should have envisaged and arranged for before she signed the employment contract. The Defendant pleaded that the Claimant was being dishonest and fraudulent.

(4)   The Defendant is senile, physically weak and in poor health. The Claimant resigned when the Defendant managed to form a rapport with her, and her resignation was a blow to the Defendant and has caused her trouble and economic loss.

8. The Defendant also indicated willingness to pay to the Claimant $63, calculated as follows:

Period of employment 21/11/2006 – 15/2/2007: less than 3 months

$1,300 x 3/24 =                                                                       $163.00

14/2/2007 transportation allowance already paid           -$100.00

                                                                                                $63.00

9. The case was heard before the Board on 30 April 2007. At the hearing, the Defendant pointed out that the Claimant had said that the Defendant did not have to purchase an air ticket for her. The Defendant also said she had paid to the Claimant $1,000 salary in advance to enable her to buy an air ticket. The Defendant also called her daughter to give evidence. Her daughter said that, when the Claimant tendered the letter of resignation, she told the Claimant that she and the Defendant had spent a lot of money on the Claimant’s employment and yet the Claimant only worked for two odd months, and that if the Claimant left their employ, they would only pay her wages and not any other amount. The Defendant’s daughter said that the Claimant agreed to the above. In her closing submissions, the Defendant reiterated that the Claimant had only worked for two odd months, that the Defendant would not pay for the Claimant’s airfare, and that the Claimant had said that the Defendant did not have to purchase an air ticket for her. The Claimant did not agree with what the Defendant said and denied having indicated that the Defendant did not have to purchase an air ticket for her.

10. Having evaluated the evidence adduced by both parties, the Adjudication Officer concluded that the Claimant’s evidence was more credible and rejected the Defendant’s evidence. The Adjudication Officer observed that the fact that the Claimant had to obtain part of her salary in advance for the purpose of purchasing an air ticket was an indication of her desperate need for an air ticket back to Thailand, and that she would not have easily waived her entitlement as an employee by saying that the Defendant did not have to provide her with an air ticket. The Adjudication Officer also held that, in the absence of consent of the Commissioner for Labour, the Defendant was not entitled to unilaterally vary the employment contract or, by agreement with the Claimant, discharge herself from her contractual obligation to provide an air ticket to enable the Claimant to return to Thailand. The Adjudication Officer pointed out that the employment contract conferred upon the Claimant the right to terminate the contract by giving notice to the Defendant and that the Defendant could not refuse to provide the Claimant with an air ticket simply because she resigned before the expiry of the 2-year term of the contract. The Adjudication Officer further stated that, even if the Claimant had agreed that the Defendant did not have to provide an air ticket for the reason that the Claimant had only worked for two months, the agreement would also have been void under section 70 of the Employment Ordinance as it reduced the Claimant’s rights under the Ordinance. For all the above reasons, the Adjudication Officer held that the Defendant was liable to pay to the Claimant the airfare of $1,200.

11. The Adjudication Officer also allowed the claim for transportation allowance of $100, on the ground that the Defendant had neither raised doubts about the Claimant’s evidence in that respect nor adduced evidence that the Defendant had paid the $100 to the Claimant.

The Defendant’s application for review

12. On 6 May 2007, the Defendant applied for review of the Adjudication Officer’s decisions. On 10 May 2007, the Board notified the Defendant that her application would be heard by the Adjudication Officer at 2.30 p.m. on 21 May 2007 and that both parties were required to attend the hearing.

13. On the morning of 21 May 2007, the Defendant faxed a letter to the Board. In the letter, apart from expressing dissatisfaction with the failure of the Adjudication Officer to provide Reasons for Decisions in writing, the Defendant also stated that she intended to claim against the Claimant for payment in lieu of notice on the ground that she had resigned without giving sufficient notice. The Defendant also sought an adjournment of the hearing on 21 May and a transfer of the case to another Adjudication Officer. The Board immediately responded to the letter by notifying the Defendant by fax that the hearing would be held as scheduled.

14. However, the Defendant did not attend the hearing of her application for review. The Claimant attended the hearing and indicated to the Adjudication Officer that she was in dire financial condition as she had to stay in Hong Kong to pursue her claim against the Defendant. She complained that the application for review was a delaying tactic by the Defendant with the aim of forcing her to abandon her claim and return to Thailand so that the Defendant could avoid paying the adjudged sums of money.

The orders made on 21 May 2007

15. After consideration, the Adjudication Officer made the following decisions and orders:

(1)     Leung Kam has applied for review of the decisions made by the Board on 30 April 2007 in respect of the present case. As she did not attend the hearing of the application, the hearing was held in her absence.

(2)     Leung Kam now raises a new ground of defence, alleging that the parties had agreed that the payment in lieu of notice to which Leung Kam was entitled would be set off against the air ticket to which TANGSRISAKULTHAI Nisachol was entitled.

(3)     After careful consideration, the Board grants conditional leave to defend on this new ground (as well as other grounds set out in the Application for Review). The condition is that Leung Kam has to pay, on or before 28 May 2007, a sum of $2,700 into the Board as security for costs. The review is fixed for hearing at 3.30 p.m. on 7 June 2007.

(4)     Following the review hearing, if a decision is made in favour of Leung Kam, the Board will return to her the said security and make such orders as the Board considers appropriate in respect of the claim. If, on the other hand, a decision is made against Leung Kam, the said security will be applied to the payment of the amounts claimed by TANGSRISAKULTHAI Nisachol and her costs.

(5)     If Leung Kam fails to provide the said security on or before 28 May 2007, the Board will affirm its decisions of 30 April 2007 and vacate the review hearing fixed for 7 June 2007.

The Defendant’s grounds of appeal

16. The Defendant’s proposed grounds of appeal can be summarized as follows:

(1)   Despite the Defendant’s old age, aural problems and poor health, the Adjudication Officer insisted on proceeding with the hearing and did not provide her with assistance. The Defendant had no idea whatsoever about the procedure at the hearing.

(2)   Despite her repeated requests, the Board failed to provide the Defendant with written Reasons for Decisions. Although the Adjudication Officer verbally gave reasons for his decisions at the hearing, the Defendant did not know what those reasons were by reason of her old age and aural problems.

(3)   The Defendant’s daughter and the Claimant had entered into an agreement whereby the Claimant did not have to give one month’s notice and the Defendant did not have to provide her with an air ticket. However, the Adjudication Officer did not distinguish the right from the wrong and made an obvious mistake in holding that the Claimant had given one month’s notice.

(4)   The Adjudication Officer unreasonably required the Defendant to provide security for costs as a condition for holding a review hearing.

Reasons for judgment

17. In her Application for Leave to Appeal, the Defendant states that the application for leave is made in respect of the orders/decisions made on 21 May 2007. It is clear from those orders/decisions that the Adjudication Officer granted conditional leave to the Defendant to apply for review. As the application for review was made by the Defendant herself, the only dispute that she has over the Adjudication Officer’s decisions must be the specified condition, namely that the Defendant was required to pay, on or before 28 May 2007, a sum of $2,700 into the Board as security for costs.

18. Under section 30(4) of the Minor Employment Claims Adjudication Board Ordinance, an adjudication officer may, on an application for review, exercise his discretion and impose such conditions as he may think just, such as requiring the applicant to give security and make payment into the Board.

19. Neither in her written statements nor in her oral submissions did the Defendant explain how the Adjudication Officer had erroneously exercised his discretion in requiring her to provide security in respect of her application for review. Furthermore, section 36 of the Minor Employment Claims Adjudication Board Ordinance provides that neither a decision by an adjudication officer to exercise his power of review nor the filing of an application for leave to appeal shall operate as a stay of execution of an award or order made by the Board. Accordingly, as from 30 April 2007 when the Adjudication Officer made his decisions, the Defendant is liable to pay the adjudged sum of $1,200. Furthermore, given that the Defendant did not attend the hearing of the application for review that she had made, and that the Application for Review referred to matters that had not been pleaded in the Defence or raised at the first hearing, one may fairly suspect the Defendant’s sincerity and motive in applying for review. In these circumstances, it was incumbent upon the Adjudication Officer to strike a balance between sanctioning the Defendant’s right to apply for review and ensuring that the application was not used as a means of evading satisfaction of the judgment. It was not unreasonable for him to require the Defendant to pay the adjudged amount into the Board as security for the application for review.

20. The Defendant’s proposed appeal against the orders/decisions of 21 May 2007 is completely groundless, let alone supported by arguable legal grounds.

21. On the first day of hearing, the Defendant indicated that she mainly wished to overturn the decision made against her on 30 April 2007. If she seeks to vary that decision, she has to follow the directions given by the Adjudication Officer by paying $2,700 into the Board as security. Until her application for review is disposed of, she is not in a position to apply for leave to appeal to the Court of First Instance against the decision of 30 April 2007.

Conclusion

22. For the above reason, I refuse the Defendant’s application for leave to appeal.