CUEVAS, ROWENA CABALLES v. TSE KING HA GRACE

HCME 6/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MINOR EMPLOYMENT CLAIMS APPEAL NO 6 OF 2014

(ON APPEAL FROM MINOR EMPLOYMENT CLAIMS
ADJUDICATION BOARD CLAIM NO MB 1002/2014(A))

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D E C I S I O N

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Introduction

1. This is an application for leave to appeal against the decision of the Minor Employment Claims Adjudication Board (“the Board”) dated 2 December 2014 pursuant to s 31(1), Minor Employment Claims Adjudication Board Ordinance (Cap 453).  The relevant parts of that provision read:

“Any party who is aggrieved by a decision of the Board … on any ground involving a question of law alone … may, with leave to appeal granted by the Court of First Instance upon application, appeal to the Court of First Instance”.

2. The part of the Board’s award by which the applicant is aggrieved is the dismissal of her claim for one month’s wage in lieu of notice.  The ground for this application set out in Form 13 is in short that the Board failed to consider the termination of the applicant’s employment contract was based on clause 5(b), and “Schedule of Accommodation and Domestic Duties”, thereof.  In common language, I understand the above to refer to the breach of the contractual needs of the employer to provide the applicant with “suitable and furnished accommodation” and “with reasonable privacy”.

Background

3. The background leading to this application can be summarized as follows.

4. The applicant came to Hong Kong and worked as a domestic helper for her former employer (the defendant in the claim before the Board) from mid-August to 7 October 2014 (short of two months).

5. She left her employment on various grounds, including:

(a)   insufficient food;

(b)   long working hours;

(c)   the former employer verbally abused her;

(d)   she was made to sleep in the kitchen every other night (alternating such arrangement with another domestic helper); when the two domestic helpers did not sleep in the kitchen, they would sleep in a (shared) room at the 4^th level of the house in which they were staying/working.

6. Because of the above complaints, she considered herself to have been dismissed constructively.

Tbe Board’s decision

7. The Board was well aware of the applicant’s case of constructive dismissal; it was expressly so stated in the Notes of Proceedings and Judgment.  The Board summed up the legal test for determining whether the employer’s conduct amounted to constructive dismissal, and relied in particular on the legal principles set out in the court of appeal decision in Fong Mung Yan v ISS Hong Kong Services Ltd, CACV 344/2005 (28 November 2007) ([2008] 1 HKLRD 63).

8. For ease of reference, the said legal principles are quoted below:

“The law on constructive dismissal is clear : If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed : Western Excavating (E.C.C.) Ltd. v. Sharp [1978] 1 QB 761 per Lord Denning MR” (para 8 thereof).

9. In short, the Board:

(a)   disbelieved the applicant regarding the complaint of long working hours and insufficient food;

(b)   found the complaint of verbal abuse not supported by evidence; being scolded for not following the former employer’s lawful and reasonable orders does not amount to verbal abuse.

As the above has not been included in the grounds of application, they need not be considered in this application.  In any event, the above findings were well within the Board’s powers to make, and do not appear to be wrong or against the weight of the evidence.

10. As regards the ground based on the lack of suitable accommodation, the Board also rejected it.  In essence, the Board:

(1)   did not believe that the former employer insisted that the applicant should take turn to sleep in the kitchen;

(2)   opined that the applicant could have discussed her sleeping arrangement with the former employer, who the Board found to have no objection to the same.  The Board also opined that the former employer could have asked the other domestic helper to agree to share with the applicant the room at the 4^th level;

(3)   found the place in the kitchen for sleeping to be “decent”.

This application

11. The applicant repeated her case at the hearing of this application that the former employer made the two domestic helpers sleep in the kitchen.  She said the former employer did so because the latter wanted someone to be there in case a fire should take place in the kitchen. The domestic helper should immediately alert the household and open the main door.

12. It is trite law the fact-finding process (including the assessment of the witnesses’ testimony) is very much a function for the Board.  Provided the Board has not erred in applying the relevant legal principles, nor acted against the weight of the totality of the evidence, the conclusion it reached cannot amount to a question of law.

13. It is well within the Board’s said power to accept the former employer’s explanation, and reject the applicant’s.  Para 10(1) and (2) above are thus not questions of law within the meaning of s 31(1), Cap 453.

14. The photographs provided by the applicant show that the Board’s conclusion summed up at para 10(3) above cannot be faulted.  They show a foldable bed which was well-built, and the kitchen to be spacious and clean, at least by Hong Kong’s living conditions. 

15. I also note that, because the sleeping arrangement in the kitchen has been found to be “decent”, even if the applicant’s reason for her sleeping in the kitchen be the true reason, such an arrangement might well still be found not to be serious enough to justify a finding of constructive dismissal (which was what the Board has concluded).

16. The applicant put forth other matters at the hearing of this application (which she fairly accepted were not raised with the Board):

(a)   the foldable bed was located immediately next to a refrigerator, and the noise emitting therefrom disturbed her sleep;

(b)   the former employer’s husband would enter the kitchen to cook at around 2 am or 3 am and stayed there for quite a while to eat before he went to bed in the early morning.

17. S 32(2)(ii), Cap 453 provides:

“On an appeal for which it has granted leave under section 31, the Court of First Instance … may not… receive further evidence”.

18. The matters set out in para 16 above are matters of further evidence; this court is thus prohibited by s 32(2)(ii) from receiving them.  It is accordingly legally inappropriate to consider them in this application.

Conclusion

19. There being no valid question of law to be considered by the Court of First Instance, this application is refused.