XCHRX DAQUIZ, DARWIN BATINGAL v. WAI WONG DICK WHO

HCME 2/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS TRIBUNAL NO. HCME 2 OF 2000

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS TRIBUNAL CASE NO. MB2106 OF 1999)

____________________

____________________

DECISION

____________________

1. This is an application for leave to appeal against the order made by the Adjudication Officer of the Minor Employment Claims Tribunal on 12 January 2000 dismissing the claimant's claim for wages in lieu of notice and annual leave pay. At the conclusion of the hearing, I dismissed the application and gave brief oral reasons for my decision. I now reduce the reasons into writing.

Background

2. The claimant was employed by the defendant under a foreign domestic helper employment contract dated 18 October 1998 ("the Contract"). The claimant commenced working for the defendant on 22 April 1999. On 18 August 1999, the defendant served 1 month's notice of termination on the claimant. Before the notice period expired, the defendant terminated the Contract on 24 August 1999.

3. The claimant claimed that the defendant was liable to pay him wages in lieu of notice for the balance of the notice period, i.e. 24 days, and also the accrued annual leave pay.

4. The defendant contended that the claimant was summarily dismissed for misconduct such that he was not entitled to any of his claims.

Grounds of Application for Leave to Appeal

5. In the written Application for Leave to Appeal, the claimant relied on the ground that the order of the Adjudication Officer is erroneous in point of law. It was stated that the Adjudication Officer had failed to decide the case on the basis of the defendant's obligations under clauses 10, 11 and 12 of the Contract.

6. Clause 10 of the Contract provides that either party may terminate the Contract by giving 1 month's written notice. Clause 11 of the Contract provides that within the circumstances permitted by the Employment Ordinance, either party may terminates the Contract without serving notice or making payment in lieu of notice. Clause 12 of the Contract provides that the parties have to give notice to the Director of Immigration in the event of a termination of the Contract.

Reasons for Refusal of Leave

7. In an application for leave to appeal, the appellant has to demonstrate that his appeal involves a point or points of law and the point(s) is or are arguable.

8. In this case, the Adjudication Officer found that the evidence of the claimant is "unreliable, inconsistent and evasive" and did not accept his evidence. The Adjudication Officer found the evidence of the defendant reasonable and convincing and accepted her evidence. On that basis, the Adjudication Officer found as a fact that the claimant was absent for work without prior approval and that he did not return to the defendant's house on 22 and 23 August 1999 when there was a typhoon and black rainstorm warning. The Adjudication Officer found that as a result of his absence, the defendant was put to great inconvenience and suffered loss and damage arising from the flooding, heavy rain and strong wind brought by the typhoon. The Adjudication Officer concluded that the defendant was justified in the circumstances to summarily dismiss the claimant on 24 August 1999. On that basis, the Adjudication Officer dismissed the claim.

9. It is evident that the Adjudication Officer's decision is based on her findings of fact which derive from the evidence presented before her. On the basis of the fact so found by the Adjudication Officer, clause 11 of the Contract will apply so that the obligation to give notice prescribed by clause 10 can be dispensed with. The claimant's ground that the Adjudication Officer had failed to have regard to the defendant's obligations under clauses 10 and 11 of the Contract is therefore plainly unarguable.

10. Clause 12 of the Contract is irrelevant to this case as it concerns the parties' duty to inform the Director of Immigration of the termination of the Contract. Clause 12 does not give the parties a right of recourse against the other party even where there is a breach of it. In any case, at the trial before the Tribunal, there is no issue taken on this clause or on any matter relating to it.

11. The claimant had at the leave hearing repeated his account of the events surrounding 21 to 24 August 1999, an account which he had told the Adjudication Officer. The fact is that the Adjudication Officer after hearing his evidence, had rejected his account of the events. No appeal can lie from this conclusion of the Adjudication Officer.

12. The claimant had also produced a book of photographs depicting him at work. He relied on it to show that he had been asked to work as a security guard for the defendant's house, that he therefore could not have time to take care of the defendant's plants at the roof top and that the defendant's complaint that he did not do his work properly is unfounded. Whether the claimant's work performance was or was not satisfactory is not the issue of this case since the defendant, rightly or wrongly, had initially served a 1 month's notice to terminate the Contract. The claimant's dismissal was not related to his work performance, but due to his absence from work on 22 and 23 August 1999. The issue at the trial was whether the claimant was justifiably absent or not and whether his dismissal was justifiable.

13. In the circumstances, the claimant has failed to show that his appeal involves any arguable point of law. The application for leave is therefore dismissed.